IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150807

Docket: M143279

Registry:
Vancouver

Between:

Amir Dzumhur

Plaintiff

And

Fariba Davoody

Defendant

Before:
Master Muir

Oral Ruling

In
Chambers

[1]            
THE
COURT: All right. These are my reasons.

[2]            
This is an application by the defendant. Paragraph 2 of the notice of
application has been dealt with in terms of a consent order that has already
been spoken to. Paragraph 1 of the notice of application seeks an order that the
plaintiff attend an independent medical examination (“IME”) with Dr. Paul
Bishop on Monday, August 17, 2015.

[3]            
I am going to keep these reasons as short as I possibly can. The
defendant basically submits that the initial expert report provided by the plaintiff
in December 2013 by Dr. Caillier indicated that the plaintiff would
fully recover and, therefore, the defendant did not see any necessity to get an
independent medical examination before the 84-day deadline and provide the
court with their own expert evidence as to the diagnosis, treatment and
prognosis with respect to the injuries claimed.

[4]            
The plaintiff then served a new report of Dr. Caillier, perhaps
just before the 84-day deadline, which apparently indicates that the plaintiff
has not benefitted as much as anticipated by the treatments undertaken and that
he suffers from and would likely continue to suffer from this lumbar pain.

[5]            
The defendant submits that because of this alleged 180-degree change in
the plaintiff’s expert opinion, that he has been put in a disadvantaged
position. The defendant relies, amongst other things, on the decision of Mr. Justice
Cullen, as he then was, in Luedecke v. Hillman, 2010 BCSC 1538 a well-known
decision of this court. The plaintiff relies largely on the recent decision of Mr. Justice
N. Smith in Timar v. Barson, 2015 BCSC 340 in which the Luedecke
decision, not surprisingly, is considered.

[6]            
It is clear from Luedecke that in support of such an application
as this, where the 84-day deadline is past, that evidence of the expert is
required to show that an IME is needed of the plaintiff in order to properly
respond to the expert report of the plaintiff. Mr. Justice Smith phrases
it at para. 20 of Timar as follows:

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.

[7]            
The defendant submits that his expert has provided that evidence and
that he requires an IME of the plaintiff in order to properly respond. The
plaintiff submits that the evidence provided is, to put it shortly, completely
insufficient.

[8]            
The evidence is that counsel for the defendant sent an e-mail on July 28,
2015, to Dr. Bishop or to his assistant which stated as follows:

I know that my office has
corresponded with you to reserve an IME with Dr. Bishop for August 17,
2015. The lawyer for the plaintiff is opposing this IME as it is within the 84-day
deadline, and we are forced to make an application to court to compel plaintiff’s
attendance. To support our application we require a letter from Dr. Bishop
confirming whether he needs the plaintiff to attend and is his reasons for
requiring his attendance. Plaintiff has provided us with an expert report from Dr. Caillier,
a physiatrist. Dr. Bishop will be requested to provide his comments on the
report of Dr. Caillier as part of his retainer. Kindly provide me with the
requested letter at the earliest. I am enclosing the report of Dr. Caillier
for Dr. Bishop’s review.

[9]            
Dr. Bishop then provided a letter as follows:

I am writing to confirm that an
independent medical examination for Amir Dzumhur has been requested by your
office. It is my understanding that you require an expert opinion with respect
to this patient’s spine-related diagnosis, treatment recommended and long-term
prognosis. This will require the patient to be assessed at the combined
neurological and orthopedic spine program and in particular will require that
the patient undergo a spine‑related physical examination.

[10]        
The defendant submits that the combination of his e-mail, which
references the requirement to respond to Dr. Caillier’s report, and Dr. Bishop’s
reference to the patient’s spine-related diagnosis, treatment recommended and
long-term prognosis are sufficiently clear that Dr. Bishop has provided
evidence satisfying the Luedecke requirement to establish a basis of
necessity for the examination to properly respond to the expert witness.

[11]        
In my view, this evidence does not satisfy the requirements of Luedecke
as considered recently by Mr. Justice Smith in Timar v. Barson. The
defendant suggested that in my order I could place limits on the expert
report that would satisfy any concern the court might have about the breadth of
the report of Dr. Bishop. In my view, that is not the proper function of
the court. It is for the defendant to satisfy the court with sufficient
evidence that its expert requires an IME for the purely responsive report required.

[12]        
Here, first of all, the instructions from the counsel for the defendant to
Dr. Bishop are not that he provide a purely responsive report. The
instructions are that he conduct an IME, and that he will be requested to
provide his comments on the report of Dr. Caillier as part of his retainer.
I doubt that any expert not conversant with the intricacies of the 84-day
deadline and 42-day deadline and the differences between responsive and primary
expert reports is going to capture the subtlety of that from that instruction.

[13]        
Further, I am not satisfied that the defendants can properly say
they shall have been truly taken by surprise by the medical condition of the
plaintiff. Dr. Caillier’s initial report was in 2013. It is couched in
careful terms that said in essence: provided the plaintiff responds to the
treatments prescribed, he should fully recover. Well, that is the very nub of
the matter: will he or will he not respond to the treatments? Did he or did he
not respond to the treatments? Obviously Dr. Caillier’s second report
indicates that he did not

[14]        
The defendant then had an opportunity to discover the plaintiff in May of
this year, two weeks before the plaintiff saw his doctor. At the discovery,
I am advised it was evident that the plaintiff was still playing soccer,
but counsel was not able to say whether the plaintiff claimed to be pain free.

[15]        
There is no basis that I can see on the evidence for the assertion
that the second report of Dr. Caillier took them or should have taken
them, perhaps more to the point, completely by surprise. The possibility
existed that the treatments would not be successful. The defendant must be seen
to have chosen to accept that risk without obtaining an IME before the 84-day
deadline.

[16]        
One of the important factors in these cases, as noted in Timar at
para. 21, is whether the party can claim to be truly surprised by the
condition of the plaintiff. Here it is my view that that is not the case. There
is nothing that satisfies me that Dr. Bishop cannot do a responsive report
to the report of Dr. Caillier without a complete IME of the plaintiff. As
a result, the application is dismissed.

[17]        
Is liability an issue in this case?

[18]        
UNIDENTIFIED MALE SPEAKER:  Yes.

[19]        
UNIDENTIFIED MALE SPEAKER:  Yes, costs in the cause.

[20]        
THE COURT: Thank you. Costs, then, in the cause.

“Master Muir”