IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20121011

Docket: M093695

Registry: Vancouver

Between:

Steve Dhillon

Plaintiff

And:

Brook David Bowering,

Hardip S. Gunglay,

Darbar Singh Gunglay

Defendants

And:

Docket: M103436

Registry: Vancouver

Between:

Steve Dhillon

Plaintiff

And:

Yusaf Tao,

Yusaf Hair Studio Ltd.

Defendants

Before: Master Taylor

Oral Reasons for Judgment

[1]            
THE COURT: This is an application by the
defendants for an adjournment of a trial that is scheduled to take place for 10
days commencing October 22 of this year.  That is in 11 days from now.

[2]            
The background to
the actions involve two motor vehicle accidents in which the plaintiff was
involved, one on July 29, 2007, the second on October 6, 2008.  There is an
order that both be heard at the same time, subject to the directions of the
trial judge.  Liability has been admitted for both accidents.

[3]            
What is really at
issue here is the late service of a follow-up report by Dr. Rhonda
Shuckett dated September 10, 2012, in which Dr. Shuckett advises she has read
the report of an MRI arthrogram of the plaintiff in which he is found to have
bilateral labral tears.  The second one, to the left hip, is somewhat nearer
than the tear to the labrum of the right hip, which the defendants have known
about for some time.  Thus, the defendants say they have been taken by surprise
and they need an adjournment to have a defence medical examination in order to
determine whether or not this is so.

[4]            
The plaintiff
says, well, look, there has been a number of references to pain in my left hip
starting very early on in the clinical notes of my GP right up to a medicolegal
report by Dr. Gilbart in a letter dated July 23, 2012, and served within the
time set out by the Rules of Court for service of expert reports prior
to trial.  At page 3 of 11, Dr. Gilbart, mentioning the left hip, says:

He
still continues to experience pain, and his physical examination was consistent
with a possible labral tear.

This is
under the heading of “The Left Hip.”  Dr. Gilbart goes on to say:

As
a result of this ongoing discomfort, I would recommend a left hip MRI
arthrogram to assess for a labral tear.

[5]            
The MRI apparently
was done privately at some expense, and the report thereof prompted Dr.
Shuckett’s follow-up report dated September 10, which was not served in time
under the Rules of Court.  Thus, as we head towards the trial, there is
no particular report in evidence at this time other than the report of Dr. Gilbart,
which was served on the defendants in time, suggesting a labral tear to the
left hip. 

[6]            
Coupled with the
other concerns the plaintiff had with his left hip, it would seem to me that
there would be some concern expressed by the defendants once they received and
reviewed the letter of Dr. Gilbart.  Apparently such did not occur.

[7]            
In any event, upon
receiving the report of Dr. Shuckett, defendants’ counsel used some Herculean
efforts to obtain an appointment with an orthopod for a defence medical
examination, which he obtained with Dr. O’Brien and that was set for the 13th
of September last.

[8]            
Notice was sent to
Ms. Dewar, plaintiff’s counsel at the time, Friday afternoon by fax.  She did
not get it until Monday, which would have been some three days later, and
apparently she wrote right away and set some conditions for the defence medical
examination, one of which was that defendants agree to the late service of Dr.
Shuckett’s report, and on the acceptance of which, certainly, by all means, we
will be happy to send the plaintiff to the defence medical examination of Dr.
O’Brien on the 13^th.

[9]            
Unfortunately, and
for whatever reason, the defendants did not agree to the late service of Dr.
Shuckett’s report, and accordingly the plaintiff did not attend the DME with
Dr. O’Brien.  Therefore, there is a standoff between the parties.

[10]        
There is some
evidence of a possible labral tear, but without the evidence of Dr. Shuckett’s
report there is nothing substantial, save and except that which is set out in
Dr. Gilbart’s report.

[11]        
So the first thing
that has to happen, of course, at trial is that the plaintiffs have to convince
the trial judge that the report of Dr. Shuckett should be allowed into evidence
in spite of the late service of the report contrary to the operation of the Rules,
which suggest 84 days in advance of trial.

[12]        
So on one hand we
do not have Dr. Shuckett’s report in evidence, and now we have defendants
asking for an adjournment so that they can do what they need to do to buttress
their case because of the report of Dr. Shuckett, which is not in evidence.

[13]        
In my view, this
problem could have been easily resolved by both parties agreeing to the late
service of Dr. Shuckett’s report as well as the DME report from Dr. O’Brien and
the matter would have proceeded.  Now we are faced with an adjournment application
of a trial that is 11 days away, the first accident which occurred more than
five years ago.

[14]        
The plaintiff says
he will be prejudiced to have to continue to wait for trial, especially since
any new trial dates for a trial of this length would not be booked for another
15 to 18 months away, somewhere in the year 2014.  Thus, there is actual
prejudice to the plaintiff to have to wait if this matter was adjourned.

[15]        
In all cases such
as this, there is a balancing of the prejudice as between the parties.  I am
required to do so as a result of the decision of the Court of Appeal some years
ago called Sidoroff v. Joe. 

[16]        
The defendants
have not provided me with any affidavit evidence as to what prejudice they
might experience if I were to disallow the application, but I have not been
directed to any affidavit evidence for the plaintiff specifically stating the prejudice
the plaintiff might experience. 

[17]        
The defendants say,
well, look, liability is admitted in both these matters; it is just a question
of medical evidence.  It should not be terribly prejudicial to the plaintiff if
this matter was adjourned.

[18]        
Well, with the
greatest of respect to counsel, I do not know if prejudice would be an
operating theme here in this application.  I think what is more to the point,
and I pointed that out to counsel at the early stage of this application, is
that, first of all, there is a hurdle that plaintiffs have to get over before a
defendant should be even concerned about this fact.  The fact that they have
not had a DME with respect to a labral tear in the left hip is not so much
their concern but rather the causal connection.  I have not seen anything in
any of the reports that would be suggestive in any way whatsoever that there is
anything but the accident as a causal connection.  Now, if that is the only
reason, ultimately, that the defendants are relying upon for an application for
adjournment in this matter, then I think the defendants do not succeed in their
application.

[19]        
Accordingly, I
dismiss the application for adjournment, and I will award costs to the
plaintiff in any event of the cause, not payable forthwith. 

[20]        
MR. SIERECKI: 
Thank you, Your Honour.

[21]        
THE COURT: 
Anything further, counsel?

[22]        
MR. GIBB:  One
thing, Your Honour, and I’m sorry, my apologies, I think I misspoke right at
the outset.  I think I said the first accident was June 29, 2007 and I believe
you put that in your reasons.  It’s actually July 29th.  My apologies for that.

[23]        
THE COURT:  Thank
you for making that correction, Mr. Gibb.  I appreciate it.  So the first
accident was July 29, 2007?

[24]        
MR. GIBB:  Yes. 
Thank you, Your Honour.

[25]        
THE COURT:  Thank
you very much.

“Master Taylor”