IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150317

Docket: M111758

Registry:
Vancouver

Between:

Laura Bergen

Plaintiff

And

Justin Gaetz and
Nicholas Mantel

Defendants

Before:
Master Muir

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT:  This is an application by the
defendants for an adjournment of the trial presently scheduled for March 30,
2015 for 13 days. The trial had been previously scheduled to commence on June 27,
2014 by consent. However, at the request of counsel for the defendants, the June 2014
trial was adjourned and rescheduled to March 2015.

[2]            
The defendants also seek production of an
amended list of documents of the plaintiff and of her chiropractic documents.
The rest of the documents sought in the notice of application have either been
produced or are no longer sought.

[3]            
The defendants also seek copies of un-redacted
clinical files from the plaintiff and a further examination for discovery of
the plaintiff.

[4]            
This matter arises from a motor vehicle accident
in 2009.

[5]            
Mr. Burgoyne, current counsel for the
defendants, only assumed conduct of this matter on January 28, 2015. Prior
to that, defence of this matter was conducted by another counsel, Mr. McIvor.

[6]            
The defendants sought an adjournment of the
trial because it is said that the opinion of the defendant’s expert, Dr. Tessler,
a neurologist, is not complete as it does not opine on causation. Dr. Tessler’s
opinion in his original report dated October 30, 2013 defers on the issue
of causation to a neurosurgeon as that is not his specialty.

[7]            
The defendants did obtain a rebuttal report from
Dr. Toyota, a neurosurgeon, but it is a records review only. The
defendants submit that they are prejudiced by not having the report of a
neurosurgeon to deal with the issue of causation, which they say is a
significant issue in a trial where damages of about $1.5 million are being
sought.

[8]            
The defendants also submit that recent document
disclosure – and by that I mean in the last two weeks – has revealed to
them numerous witnesses that they were unaware of. The defendants say that they
will need to interview these witnesses with a view to the work capacity claim
being made by the plaintiff.

[9]            
In his affidavit, Mr. Burgoyne says that
the records of the disability insurer have just been produced. Counsel for the
plaintiff disputes that and points out that what were produced were updated
records.

[10]        
Mr. Burgoyne refers to the plaintiff’s
witness list from the trial management conference and says “most of the names
of the lay witnesses are unfamiliar to us.”

[11]        
It was my understanding and obviously the
understanding of the plaintiff that Mr. Burgoyne was complaining about the
witnesses on the plaintiff’s trial brief, which he said had only been disclosed
recently. Mr. Burgoyne’s assertion has been adequately dealt with by
counsel for the plaintiff and I am satisfied that most of the witnesses on
the plaintiff’s trial brief have been known to all for quite some time.

[12]        
In addition, counsel for the defendants listed
several other witnesses alleged to have been discovered from the recent
document production by the plaintiff. Of those, the only one that I see identified
in the affidavit of Mr. Burgoyne is Mr. Damasco.

[13]        
Submissions by counsel for the defendants as to
these additional witnesses are not supported by the affidavit of Mr. Burgoyne.
It is, therefore, quite understandable why counsel for the plaintiff was under
the impression that it was the plaintiffs’ witnesses that were the issue. In
the circumstances, I am not satisfied that it has been established that there
is any prejudice to the defendants regarding the alleged late disclosure.

[14]        
The defendants also assert that the recent
disclosure of the plaintiff’s employment file opens up further inquiries with
respect to details of the plaintiff’s activities in her workplace. The
plaintiff submits that the records were only requested by the defendants in
late February 2015 and were produced in March.

[15]        
The defendants say they want to find out what might
have transpired subsequent to the plaintiff’s performance review for the period
ending March 2012 that resulted in her going on disability leave in 2013. The
defendants say they need to know what happened in the intervening period that
made it impossible for the plaintiff to continue working.

[16]        
The examination for discovery of the plaintiff
occurred over the span of two days on April 2 and 3, 2013. It was,
apparently, an extensive discovery that occurred after the plaintiff stopped
working. There was the opportunity to examine on the plaintiff stopping work
and I am not satisfied that anything has happened in the intervening
period that would amount to a significant change in circumstances.

[17]        
It is said that the plaintiff has now opted for
spinal fusion surgery, which was not in her sights when the examination for discovery
was held. Counsel for the plaintiff, however, points to the report of Dr. Nikolakis
from 2010 wherein Dr. Nikolakis recommends that medical management be
attempted but, if there is not adequate pain relief for the plaintiff, they
should have a discussion with respect to whether there will be surgery to
attempt to alleviate her pain.

[18]        
Counsel for the plaintiff points out that the
plaintiff has now been approved for that kind of surgery but she has yet to
make an appointment. The plaintiff has not elected to proceed with surgery and this
decision was conveyed to Mr. McIvor in the fall and to Mr. Burgoyne
in February. The plaintiff’s specialists or her treating doctors have
recommended caution with respect to the spinal fusion surgery. As a result, her
intention is to manage her pain as long and as best as she can until surgery is
the only plausible option.

[19]        
Counsel for the plaintiff submits, and I agree,
that surgery is not something that arose after the examination for discovery. This
was always an option. The issue is when, and there is still no resolution as to
that. Therefore, I do not see a significant change in circumstances that
arises because of the surgery option.

[20]        
It was conceded before me that the further examination
for discovery sought by the defendants would be a second examination for
discovery, not a continuation.

[21]        
In dealing with the defendants’ application for
a further examination for discovery, the law is not in issue. There is a quite
significant hurdle which is outlined in the cases such as Sutherland v.
Lucas, 1996 CanLII 3393 (BCSC). In Sutherland, the court noted:

[21] Once the examination for
discovery of a party has been concluded there is then a heavy onus on the
applicant to justify a further examination for discovery, as only one
examination is contemplated. Such a request must show that the examinee has
failed to give the examiner the discovery to which he is entitled to. This is
what Finch J., as he then was, is alluding to in Westcoast Transmission
Company Limited v. Interprovincial Steel and Pipe Corporation Ltd., et al.
In my view, if he cannot meet this test then he must either demonstrate that
the complexion of the case has materially changed either as a result of passage
of time, new heads of damages being advanced or intervening events having
occurred since the last discovery which would materially alter either the
prosecution of the case or the defence of it. Alternatively, a party could
produce evidence to show that full and frank disclosure was not made at the
first discovery.

[22]        
I am not satisfied that this hurdle has
been overcome and therefore the application with respect to the examination for
discovery is denied.

[23]        
Turning to the issue of the adjournment of the
trial. It was Mr. McIvor, former counsel for the defendants who decided
not to push for an independent medical examination (“IME”) with Dr. Toyota
originally scheduled for October 23, 2014. Plaintiff’s counsel did not
consent to the scheduled IME but the defendants did not bring an application to
compel it. It is obvious that the decision was made in the circumstances that
an IME with Dr. Toyota was not necessary.

[24]        
I appreciate that new counsel may have
different views of the matter, but in my view, the consequences of that last-minute
change should not be visited upon the plaintiff. I am not satisfied that
there will be any significant prejudice to the defendants in proceeding with
the report of Dr. Tessler and the rebuttal report of Dr. Toyota. As
has been stressed to me, they have four experts, five reports. It is not the
case that the defendants are unprepared in respect of medical evidence.

[25]        
Upon consideration of all of the circumstances,
I am not satisfied that an adjournment of the trial is required, nor is it,
in my view, in the interests of justice that an adjournment be granted. As a
result, the application for the adjournment is denied.

[26]        
The plaintiff has already said that an amended
list of documents is in the works, as have the defendants for that matter.
I will simply direct that both parties produce an amended list of
documents by March 23, 2015.

[27]        
With respect to the pre-accident chiropractor
clinical records, there is a dispute about these records. Counsel for the
plaintiff submits that, at the time of the examination for discovery, these
records were identified and specifically not requested. Apparently, they were
requested by Mr. Burgoyne when he took over this matter from Mr. McIvor.

[28]        
There was also an issue as to trying to identify
the chiropractor who may have treated the plaintiff. Since the time that the
records were requested by Mr. Burgoyne, counsel for the plaintiff has
investigated, confirmed the identity and contacted the chiropractor, who has advised
that he does not possess any records of the plaintiff. In the circumstances,
I am not going to make any order for production.

[29]        
As to the redacted documents, significant
argument was made about the nature of redactions, the purpose of redactions and
the proof of redactions, or the description of redactions, such that they can
be challenged in court.

[30]        
In my view, all of that is essentially
irrelevant. Plaintiff counsel’s long standing position is that counsel for the
defendants can review the redactions at any time. Plaintiff’s counsel is not
prepared to produce the un-redacted documents, as the redactions are
embarrassing, private documents that the plaintiff has every right to maintain
privacy over. They deal with gynecological issues, and I assume other
matters as well, but certainly gynecological issues were identified.

[31]        
In the circumstances, I am certainly not
going to make an order that such documents be produced or even further
identified, as counsel for the defendants is perfectly able to go and look at
them.

[32]        
I think I caught everything. Is there
anything I missed?

[33]        
MS. DE BAIE:  The issue of costs?

[34]        
The plaintiff will have her costs in the cause.

“Master Muir”