IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150306

Docket: M112410

Registry:
Vancouver

Between:

Jonathan Levi
David Timar

Plaintiff

And

Robert Barson and
Ean Holdings, LLC

dba Enterprise
Rent-A-Car

Defendants

Before:
The Honourable Mr. Justice N. Smith

Reasons for Judgment

[1]            
The plaintiff appeals a decision of a Master ordering him to attend an
independent medical examination (“IME”) by a psychiatrist: Timar v. Barson
(17 February 2015), Vancouver M112410 (B.C.S.C.). The application was made
after the expiry of the deadline for service of expert reports under R. 11-6(3)
of the Supreme Court Civil Rules.

[2]            
The defendant Ean Holdings, doing business as Enterprise Rent-a-Car, said
the examination was necessary for the purpose of obtaining a report that could
be served as a purely responsive report under R. 11-6(4). It had not previously
requested or applied for an IME and it had not conducted an examination for
discovery of the plaintiff.

[3]            
The plaintiff claims damages for injuries suffered in a motor vehicle
accident on May 3, 2011. The notice of civil claim, filed within days of the
accident, alleges injuries that include concussion, injury to the neck and
back, headaches, anxiety, stress and pain.

[4]            
The trial is set for April 27, 2015 and the
plaintiff served its expert reports at or near the deadline of 84 days before
trial as set out in R. 11-6(3). Those reports included a psychiatric report by
Dr. Stephen Anderson stating that the plaintiff likely suffered a “concussion
injury/mild traumatic brain injury (MTBI)” and developed a major depressive
disorder, panic disorder and post-traumatic stress disorder (“PTSD”). The
report also refers to cognitive difficulties, which Dr. Anderson attributes in
part to depression and anxiety as well as the MTBI.

[5]            
The defendant sought an order that the plaintiff attend an IME by a
psychiatrist, Dr. Derryck Smith. Its position was summarized by the Master in
this way at para. 5:

The essence of Enterprise’s
application is that its understanding of the nature and extent of the
plaintiff’s injuries has changed as a result of the delivery of Dr. Anderson’s
report. It says that Dr. Anderson’s psychiatric report, for the first time,
raised the possibility that the plaintiff suffered from a mild traumatic brain
injury as a result of the motor vehicle accident which has resulted in memory
loss and cognitive impairment.

[6]            
The application before the Master was made under R. 7-6(1), which reads:

(1) If the physical or mental condition of a person is in
issue in an action, the court may order that the person submit to examination
by a medical practitioner or other qualified person, and if the court makes an
order under this subrule, the court may also make

(a) an order respecting any
expenses connected with the examination, and

(b) an order that the result of the examination be put in
writing and that copies be made available to interested parties of record.

[7]            
The purpose of the rule is to “put the parties on an equal footing with
respect to medical evidence.” Stainer v. ICBC, 2001 BCCA 133 at para. 8;
Wright v. Sun Life Assurance Co. of Canada, 2014 BCCA 309 at para. 31.

[8]            
Rules 11-6(3) and (4) read:

(3) Unless the court otherwise orders, at least 84 days
before the scheduled trial date, an expert’s report, other than the report of
an expert appointed by the court under Rule 11-5, must be served on every party
of record, along with written notice that the report is being served under this
rule,

(a) by the party who intends, with
leave of the court under Rule 11-3 (9) or otherwise, to tender the expert’s
report at trial, or

(b) if 2 or more parties jointly
appointed the expert, by each party who intends to tender the expert’s report
at trial.

(4) Unless the court otherwise orders, if a party intends to
tender an expert’s report at trial to respond to an expert witness whose report
is served under subrule (3), the party must serve on every party of record, at
least 42 days before the scheduled trial date,

(a) the responding report, and

(b) notice that the responding report is being served under
this rule.

[9]            
As pointed out in Wright v. Brauer, 2010 BCSC 1282 at para. 12, R.
11-6(4) was enacted to “fill a lacuna” in the Rules. Prior to the
enactment of the present Rules in 2010, the former R. 40A provided a
deadline, similar to but shorter than the one that now exists in R. 11-6(3), by
which all parties had to deliver expert reports. However, a party could
introduce expert evidence without notice if it was purely responsive to
evidence given by the other party’s expert. Rule 11-6(4) established, for the
first time, a notice requirement for such responsive or rebuttal evidence.

[10]        
In the application before the Master, the defendant relied on an
affidavit from Dr. Smith that said:

I cannot properly give responsive
rebuttal opinion on a patient’s psychiatric functioning, diagnosis, prognosis,
symptoms, and etiology without examining, interviewing and testing the patient.
Without examining the patient in person, I would be unable to provide my expert
opinion to the questions asked.

[11]        
The Master found that although the notice of civil claim referred to
concussion, headaches, anxiety and stress, Dr. Anderson’s conclusion that the
plaintiff suffers from post-concussive syndrome with ongoing memory and
cognitive difficulties became apparent only with the service of his report. She
added at para. 24:

The pleadings referred to
concussion but not post-concussive disorder, and it is not clear on the
pleadings that the plaintiff was pleading ongoing memory and cognitive
impairments issues.

[12]        
The Master concluded that the affidavit of Dr. Smith met the evidentiary
threshold referred to in Luedecke v. Hillman, 2010 BCSC 1538. In that
case, the Court said at para. 54:

To reach the requisite threshold
under Rule 11-6(4) the applicant must establish a basis of necessity for the
examination to properly respond to the expert witness whose report is served
under subrule (3) by the other party. It is not simply a matter of
demonstrating a need to respond to the subject matter of the plaintiff’s case.

[13]        
Although she found that the evidentiary threshold had been met, the Master
also noted at para. 31:

It is possible that Dr. Smith’s
report will extend beyond what is properly responsive. Some of the questions
that he has been asked to address by Enterprise appear to be questions intended
to provide a response to the plaintiff’s case and not specifically to Dr.
Anderson’s report.

However, the Master said at para. 32 that it will be for the
trial judge to determine whether Dr. Smith’s eventual report is properly
responsive and whether to admit some or all of it.

[14]        
The examination ordered by the Master has already taken place, but no
report from Dr. Smith has been served. That does not make this appeal moot
because question is whether the order should have been made. A decision on that
point may be a matter for the trial judge to consider in determining whether
any report is admissible: Wright v. Sun Life Assurance Company of Canada
at para. 29)

[15]        
The standard of review on an appeal from a Master is described in Stoneman
v. Desjardins, 2004 BCSC 57 at para. 7:

The parties agree that, subject
to two exceptions, the appropriate standard of review in an appeal from a
Master’s order is whether the order can be said to be "clearly wrong"
(Abermin Corporation v. Ganges Exploration Ltd. (1990), 45
B.C.L.R. (2d) 188 (B.C.S.C.)). The two exceptions deal with orders that can be
characterized as being vital to a final issue in the case and orders decided on
a point of law. In these two circumstances, the review is by way of a
rehearing, unfettered by any deference to the order under appeal (Northland
Properties Ltd. v. Equitable Trust Co. (1992), 71 B.C.L.R. (2d) 124
(B.C.S.C.)).

[16]        
In Wright v. Sun Life Assurance Company of Canada, the Court of
Appeal said a decision to order a medical examination is discretionary and
subject to the “clearly wrong” standard of review. The issue in that case was
simply whether an examination should be ordered. It was not necessary to
consider the implications of the examination in light of the deadlines for
delivery of reports set out in R. 11-6.

[17]        
Although the decision is a discretionary one, applications of this type have
become relatively common and the court must ensure that, to the greatest extent
possible, the discretion is exercised on a consistent basis. The Master in this
case was placed in an extremely difficult position and had little time to
consider the matter because the application was made the day before the
scheduled examination.

[18]        
Where an application for an IME is made after the expiry of the 84-day
deadline, the test in more stringent than if the application is made at an
earlier date. In Jackson v. Yusishen, 2013 BCSC 1522 the court said at
paras. 17-18:

An order under Rule 7-6(1) is discretionary. While there are
a host of factors that should be considered when exercising the discretion
conferred by that rule, one of the factors might broadly be taken to be whether
the examination sought will advance the litigation, in the sense of potentially
yielding relevant evidence touching on a material issue.

In the context of a personal
injury action, meeting that evidentiary threshold where the object of the
examination is the eventual production of a fresh or new expert report will not
usually be difficult. On the other hand, where the time limited for serving
fresh or new expert reports has passed, and thus the only purpose of an
independent medical examination is in furtherance of the production of a
responsive expert report, the evidentiary burden will generally be more
difficult to meet.

[19]        
Rule 11-6(4) establishes a notice requirement for responsive evidence,
but it does not exempt any party from the basic notice requirement in R.
11-6(3). In other words, it is not a licence for any party to wait until they
have seen the other’s expert reports before deciding what expert evidence they need
to obtain or rely on. Where each party has properly prepared its case and used
the rights given by the Rules to discover the other party’s, responsive
reports under R. 11-6(4) should rarely be necessary and IME’s for the purpose
of preparing such reports should be rarer still.

[20]        
A party seeking an IME after expiry of the deadline in R. 11-6(3) must,
as stated in Luedecke,  satisfy the court that the examination is
necessary to properly respond to an expert report served by the other party and
not simply to respond to the subject matter of the plaintiff’s case.

[21]        
However, other factors beyond the meeting of that evidentiary threshold
must be considered. The principle one that emerges from virtually all the cases
is the extent to which the party seeking the examination can claim to be truly
surprised by the expert evidence served by the other party: Jackson at
para. 27; Compton v. Vale (4 June 2014), Kelowna M95787  at para. 11
(B.C.S.C.). Defendants who delay obtaining or serving expert evidence until
after the plaintiff’s evidence is received, then attempt to introduce all of their
expert evidence as response, do so at their peril: Crane v. Lee, 2011
BCSC 898 at para. 22; Gregorich v. Gregorich (16 December 2011),
Victoria 09-4160 at para. 11 (B.C.S.C.).

[22]        
The Master said it was not clear the plaintiff was pleading ongoing
memory and cognitive impairment issues. With respect, that fails to properly
consider the unique dynamics of a personal injury action, in which the
pleadings rarely describe a static situation.

[23]        
Pleadings in personal injury actions frequently must be issued before a
plaintiff’s injuries have fully resolved and sometimes before the full extent
of the injury is known. Even when the specific injuries remain exactly as
described in the pleadings, much may depend on the severity and persistence of
symptoms as at the time of trial.

[24]        
The defendant said that it didn’t know until service of Dr. Anderson’s
report that the plaintiff would be claiming a mild traumatic brain injury. However,
the plaintiff did plead that he suffered a concussion. I have always understood
a concussion to be, by definition, a mild traumatic brain injury and that is
how Dr. Anderson appears to refer to it.

[25]        
The pleadings in this case were issued days after the accident and the
plaintiff could not have known what the long term impact of the concussion might
be. However, in late August 2013, plaintiff’s counsel provided defence counsel
with a report of a psychologist, Dr. Koch, dated November 1, 2012.

[26]        
In that report, Dr. Koch gave an opinion that the plaintiff suffered
from PTSD, panic disorder, major depressive disorder and generalized anxiety disorder,
all of which were caused or aggravated by the accident. He said that the prognosis
was “guarded” in the absence of appropriate treatment and these conditions
would likely impair the plaintiff’s employment in the future.

[27]        
The defendant therefore knew or should have known more than a year
before the time for exchange of expert reports that the plaintiff’s mental
health and functioning were at issue. The later report of Dr. Anderson that the
defendant now complains of largely states Dr. Anderson’s agreement with Dr.
Koch’s diagnosis and prognosis, but adds the suggestion of an organic cause (MTBI)
rather than purely psychological ones.

[28]        
As the matter progressed and the date for exchange of expert reports
approached, the defendant did not take advantage of the primary means the Rules
provide for obtaining information about the plaintiff’s condition. It did not
conduct an examination for discovery. On that point, the Master said at para.
28:

The plaintiff made much of the
fact that Enterprise had not requested to examine him for discovery, but,
although it might have been prudent for the defence to do so before now, the Rules
provide that they may request a date up until 30 days prior to trial.

[29]        
I am not sure what 30-day period the Master was referring to. It does
not appear in R. 7-2, which deals with examinations for discovery. R. 12-4 says
that the trial certificate filed at least 14 days before trial must state that
examinations for discovery have been completed.

[30]        
The timing of an examination for discovery depends on the nature of the
case. A further characteristic of personal injury actions is the inevitability
of at least some medical evidence. As Master McCallum said in Becker v.
Zetzos (2 May 2013), Vancouver M121679 at para. 13 (B.C.S.C.):

The defendant says that it did
not know that there would be a medical report served until this report of Dr.
Giantomaso was served just before the deadline. It seems to me unlikely —
possible, but unlikely — that the defendant did not and could not have
anticipated that there would be medical expert evidence upon which the
plaintiff would reply. We can only hope that someday we will live in a world
where plaintiffs can prove their claims without the involvement of many, many
experts. This plaintiff is going to rely on the evidence of one expert, but it
would be a rare case indeed, in my experience, where the plaintiff in a
personal injury case would embark on a trial, even a fast-track litigation
trial, without the aid of expert evidence.

[31]        
A defendant in a personal injury action must therefore know that the
plaintiff will have to rely on medical evidence if the matter proceeds to trial.
Knowing that, the defendant must consider whether an IME is required in order to
obtain a report that can be served at least 84 days before trial pursuant to R.
11-6(3). In order to determine that and to identify the type of medical expert
to involve, the defendant must determine what the plaintiff is saying about his
or her condition. An examination for discovery is the obvious, most effective
and most important way to do that.

[32]        
The defendant in this case chose not to exercise its rights under the Rules.
It did not conduct an examination for discovery and made no effort to obtain a
timely IME. In the absence of such efforts, I must hold that the Master erred
in permitting the defendant to use R. 11-6(4) as a means of obtaining its first
medical evidence. In the limited time she had to deal with the application, the
Master failed to fully and properly consider the limited purpose of R. 11-6(4)
and its interaction with other rules as they affect actions of this kind.

[33]        
I also find that the Master erred in leaving it to the trial judge to
determine whether and to what extent any report from Dr. Smith complied with R.
11-6(4) as a purely responsive report. The Master relied on Luedecke,
where the court said at para. 55:

In the case before me there is an
affidavit from Dr. Reebye setting forth a basis for the examination sought, although
ultimately what Dr. Reebye may regard as purely responsive may be different
from that which the trial judge eventually concludes to be so. That issue must
await another day.

[34]        
This case differs from Luedecke in that the Master made an
express finding that some of the matters Dr. Smith had been asked to address
did not appear to be limited to matters of response to Dr. Anderson’s opinion. Arguments
over what is or is not proper responsive opinion can interrupt and lengthen
trials, increasing costs and inconveniencing witnesses. That is probably
unavoidable in many cases, but in my view a judge or master hearing an
application for a late IME must, where possible, play something of a gatekeeper
role. When there is a finding such as the one made by the Master here, the application
should in my view be dismissed unless the applicant is able to propose a more
limited description of what the expert is to do.

[35]        
For those reasons, I allow the appeal and set aside the Master’s order. As
said above, the IME has taken place and Dr. Smith may produce a report in any
event. The admissibility of any such report will be subject to the discretion
of the trial judge.

[36]        
Costs of this application and before the Master will be in the cause.

“N.
Smith, J.”