IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20120619

Docket: 136928

Registry: New Westminster

Between:

Kevin Carta

Plaintiff

And:

James Browne and James Spence
McFarlane Browne

Defendants

Before: Master Muir

Oral Reasons for Judgment

In Chambers

[1]            
THE COURT: This is an application by the
defendants for an order that the plaintiff, Kevin Carta, attend at the offices
of Dr. Kulwant Riar, a psychiatrist located at 305-1245 West Broadway,
Vancouver, BC, on July 30th, 2012, at the hour of 9:30 a.m., and thereby
submit to an independent medical examination by Dr. Riar. The affidavit
material indicates that Mr. Carta was in a motor vehicle accident in
Vancouver on December 16, 2009, and as a result, he has advanced a number
of claims for injuries, including psychiatric, psychological and emotional
injuries, such as post-traumatic stress disorder, depression, anxiety, paranoia
and flashbacks. The plaintiff sustained serious injuries in a previous motor
vehicle accident in 2002, which is not the subject of this action, as a result
of which he is a paraplegic and uses a wheelchair. He resides in Kelowna, British Columbia, and his examination for discovery was held in Kelowna, British
Columbia.

[2]            
Mr. Carta’s
affidavit takes objection with the independent medical examination scheduled
for essentially three reasons. The least compelling of those is the credentials
of Dr. Riar, which are only in evidence to the extent of his curriculum
vitae, which shows that he has some expertise in dealing with violent sexual
offenders. That, in my view, is not sufficient to preclude him as an expert. He
is clearly qualified as a psychiatrist and accepted as such by the College of
Physicians in British Columbia, and the simple fact that he has some other
specializations, in my view, is not sufficient to preclude him as an expert. There
is no other evidence led with respect to his expertise or practice that would
lead me to conclude that he cannot perform the independent medical examination
sought.

[3]            
The other two
reasons are somewhat more compelling. The first is that July 30th is not a
convenient date for Mr. Carta. He deposes in his affidavit that he is
attempting with a friend to develop a business making and selling ice cream in
a mobile vending-type environment and that he is currently booked to do that at
a three-day festival in Penticton July 27 to 29, 2012. He deposes that will
require two weeks of preparation, and it will be three long days of selling ice
cream and travelling back and forth from Penticton to Kelowna. The festival
does not end until 10:55 p.m. on July 29th. As a result he is physically
and logistically unable to travel to Vancouver for a medical appointment on
July 30th, 2012, at 9:30 a.m., and he attaches the schedule for the
festival in question.

[4]            
He further deposes
that as a result of his 2002 car crash, a symptom of his paraplegia is a lack
of bowel control. It is a particular problem for him when travelling. He also
has post-traumatic stress disorder which is symptomized by fearfulness and
anxiety while driving, particularly in the Vancouver area. He deposes that the
thought of having to come to Vancouver to be examined by Dr. Riar is
extremely upsetting, and he has had panic attacks about having to make the trip.

[5]            
He has what has
been described to him as survivor’s guilt with respect to the accident, which
involved his young niece as well as his brother. He has difficulties staying in
Vancouver. He is required to stay at his brother’s home, which is not
wheelchair accessible. He describes some treatment by a representative of ICBC that he says both humiliated and shamed him and resulted in further stress over attending in
Vancouver. He says prior to the accident he came to Vancouver frequently, that
he does not do so anymore. He has only been to Vancouver three times since the December
2009 motor vehicle accident.

[6]            
I turn, then, to
the rules and requirements with respect to an independent medical examination. The
first thing that I note is that it is a discretionary order, although the
obvious intention for such an order is the balancing of the rights of the
plaintiff and the defendants in actions where physical or mental ailments are
pleaded to be a result of the actions of the defendants. It is not something
that is a matter of right, and there are certain principles that must be
applied with respect to such examinations. Those were looked at, at least with
respect to the convenience of the plaintiff, in Parson v. Mears, 2011
BCSC 397 a case relied upon by the plaintiff here. In that case, Master Bouck
was looking at the objections of a plaintiff to attend in Vancouver for an
independent medical examination, him being a resident in Victoria. In that
case, the plaintiff was not able to fly comfortably; he would miss work due to
the appointments, and he did not know Vancouver very well. Master Bouck held
that certain principles apply to the consideration of an order for an
independent medical examination, and sets those out at para. 19 as follows: 

a.      The purpose of an independent
medical examination is to put the parties on a basis of equality. It is not for
the plaintiff to decide which doctor can examine him or her on behalf of the
defendant.

b.      Nonetheless an independent
medical examination is an examination conducted by a person appointed by the
court. The convenience of the plaintiff is to be considered in appointing such
a person.

c.      Convenience to the plaintiff
is but one of several factors for the court to consider in exercising its
discretion under rule 7-6.

d.
It may be appropriate for the court to consider appointing a specialist
other than the proposed examiner but only where the plaintiff demonstrates, on
a preponderance of evidence, sufficient grounds to justify the court in
concluding that its discretion should not be exercised in favour of the
appointment of the defendant’s nominee.

[7]            
Master Bouck went
on to say that:

In terms of
convenience to the plaintiff, I do not understand the authorities to say that
an independent medical examination should, or even might preferably, take place
at the examinee’s town or city of residence. Nor do I understand those
authorities to say that, all things being equal, the defence should be required
to schedule an examination with a specialist practising near the examinee’s
residence.

…..

It is almost
always an inconvenience for a plaintiff to attend an independent medical
examination.

…..

On
a very rare occasion the court may order that the defendant’s nominee travel to
the plaintiff’s town or city of residence to conduct the independent
examination or assessment.

[8]            
As I have said, in
this case I am not satisfied that Dr. Riar is an inappropriate expert. I
am satisfied that there are considerations that go beyond simple convenience
that dictate that this examination should not be conducted in Vancouver but
should be conducted in Kelowna and that it not be conducted on July 30th,
which is a time that is more than inconvenient for the plaintiff; it interferes
with a scheduled festival that he is planning to attend as a part of a
developing business. Therefore if the defendants are going to insist that the
examination be conducted by Dr. Riar, it is my order that Dr. Riar
attend in Kelowna at a time convenient to all parties, and I will order that certain
conditions be complied with.

[9]            
The first
condition sought is that the defendants set out exactly what examinations
Dr. Riar wishes to conduct. The defendants have indicated that this is a
psychiatric examination, that the examination is not to be an invasive one but
will consist of conversations between the plaintiff, and I trust that Dr. Riar,
being a professional, will confine himself accordingly. It is of course ordered
that ICBC is to pay the reasonable costs of attendance of the plaintiff at the
examination.

[10]        
I do order that
the plaintiff is at liberty to be accompanied by a person of his choice. This
person is to be merely an observer and not participate in or interfere with the
examination in any manner whatsoever. Dr. Riar will not attempt to get any
information from the companion.

[11]        
The plaintiff
seeks a condition that the plaintiff be seen within 15 minutes of the time of
the scheduled appointment. The same condition was considered by Master Caldwell
in Foster v. Juhasz, 2009, BCSC 1101, and he noted there, at
paragraph 31, that there was a request that the plaintiff be seen within
approximately 15 minutes, to which he said: 

…
I think is too small a time limit, but I do think that in such cases it is
important that the plaintiff not be made to stay unduly if they are not being
attended to. The normal rule with examinations for discovery and other matters
in court seems to me to be 30 minutes, and I will make it a 30-minute window.

[12]        
And I so order
here that the examination is to be commenced within 30 minutes of the
scheduled start time, after which, if the examination has not proceeded, the
plaintiff is entitled to depart, and his attendance will be credited as having
satisfied the order.

[13]        
I am not prepared
to make an order that the examination last no more than two hours. I do
not have any evidence before me as to the normal length of such psychiatric
examinations, but Dr. Riar being a professional, I trust that he will
treat this as a professional obligation to not unduly delay or protract the
examination. I do order that there are to be no invasive tests. I cannot see
any reason for such. Further the plaintiff is not to be required to sign or
fill out any releases, waivers, consents or any other documents.

[14]        
With respect to
the questions to be asked, the rule, which is 7-6(3), is that a person who is
making an examination under this rule may ask any relevant question concerning
the medical condition or history of the person being examined, and
Dr. Riar is so limited.

[15]        
With respect to
item (i) of the response of the plaintiff here, the plaintiff is seeking that
there be no surveillance of him during any part of the defence medical
examination or during his arrival or departure there from. In my view this is
in the nature of being required to attend at court, and it is my view that any
such surveillance would be unseemly, and I therefore grant the order.

[16]        
In item (j) in
para. 13 of the response, the plaintiff seeks that Dr. Riar provide a
complete copy of his notes regarding the plaintiff, including any history, his
findings and observations. I will not make that order in the terms sought, but
I will include an order with respect to that and item (k) in which the
plaintiff seeks an order that Dr. Riar be required to retain all drafts,
notes, research papers or other material used or drafted by him in preparation
of his report. I will direct that Dr. Riar include in his file any notes
that he takes at the medical examination of the plaintiff and that those notes
be produced with his file. The defendants have already agreed that an order can
go in terms that if the report of Dr. Riar is not served, they will agree
to provide his file contents plus a summary of what the plaintiff has said to
Dr. Riar, and so I will incorporate that agreement with the slight change
that Dr. Riar is to preserve any notes made and incorporate them in his
file. With respect to drafts and so on, Dr. Riar is to retain and
incorporate those in his file. His file is to be produced if a report is
produced in accordance with the rules.

[17]        
I make no order
with respect to (m), which is to preclude the use of the word
"independent" in the report.

[18]        
With respect to
Dr. Riar being available for trial, I again reference the decision of
Master Caldwell in Foster v. Juhasz, and I can say it no better than he
has. In this case he was talking about Dr. le Nobel, but he said: 

The
plaintiff seeks an order at this time that Dr. le Nobel be called for cross-examination.
While that has some attractiveness, I think it is putting the cart before the
horse. If Dr. le Nobel is taking on this retainer and conducting this
examination, he should be available for cross-examination. Matters can
intervene, but I will indicate for the record and it will be part of these
reasons that this issue has been raised, and I have indicated that Dr. le
Nobel being the person chosen to do the report I would presume a couple of
things. I would presume that he has already been provided with the trial date
and has already been cleared and advised it may be necessary for him to testify
at that occasion. Accordingly should anything arise that would change from the
normal course of that happening, I am going to suggest he should have a pretty
darn good reason, but it is not going to be a part of a peremptory order that
he will attend.

[19]        
Counsel have
advised me in this case that no trial date has yet been set. It is therefore
extremely difficult for any expert to bind himself in advance to be available
for any trial date. In the circumstances, I can only suggest that counsel, in
setting down this matter for trial, take into consideration the availability of
Dr. Riar to attend, and that Dr. Riar, I will assume, understands his
obligations as I have just set out from Master Caldwell’s reasons.

[20]        
With respect to
(o), the defendant has advised me that they will not seek a further defence psychiatric
medical examination, and I take them at their word on that and make no order.

[21]        
I do not mean by
any of these reasons to limit the defence to the choice of Dr. Riar. If
they should choose a medical expert other than Dr. Riar, perhaps one that
is closer to the residence of the plaintiff in Kelowna, they are certainly free
to do that, but the same conditions would apply.

[22]        
MR. HARDING:  Costs, Your Honour?  I would say on balance the plaintiff
won.

[23]        
THE COURT:  Yes. Yes, I’ll order costs to the plaintiff in the cause.

“Master Muir”