IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150925

Docket: M073590

Registry: Vancouver

Between:

James Michael Jack

Plaintiff

And

Gary Edward
Kendrick and Evangelos William Mentis

Defendants

– and
–

Docket: M081946

Registry:
Vancouver

Between:

James Michael Jack

Plaintiff

And

Elizabeth J.
Tabert-Deyab, Moh’d Hilmi Deyab

Defendants

–
and –

Docket: M081947

Registry:
Vancouver

Between:

James Michael Jack

Plaintiff

And

Phu Van Ngo

Defendant

Before:
The Honourable Mr. Justice Skolrood

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: There are two applications before the Court, both of
which are brought in the context of a motor vehicle claim that is scheduled for
a 24-day jury trial commencing October 5, 2015. In the action, the plaintiff
seeks damages for injuries sustained in three separate accidents, the first in
2005, and the second and third in 2007.

[2]            
The applications are brought by the defendants in the first action and
are supported by the defendants in the second and third actions. The
applications seek the following orders:

1.    
leave to file and serve a third party notice adding Dr. Cameron Smith as
a third party in the action; and

2.     an order
compelling the plaintiff to answer the defendants’ interrogatories dated
September 3, 2015.

[3]            
Turning first to the application to file the third party notice, the
facts giving rise to the application can be briefly stated. In the three
actions, the plaintiff claims to have suffered a multitude of injuries that
have resulted in his suffering from chronic pain. Since the date of the first
accident, the plaintiff has been under the care of his family physician, Dr.
Smith, the proposed third party. One of the many courses of treatment prescribed
to the plaintiff has been various narcotic medications.

[4]            
It is a common theme running through many of the medical reports
produced by the parties that the plaintiff has become over-dependent on, if not
addicted to, the medications and there have been consistent recommendations
that his use of such medications be reduced.

[5]            
I was referred, for example, to the reports of Dr. Thomas Kay dated
December 9, 2011, Dr. Andrew Travlos dated May 9, 2012, and May 15, 2014,
Dr. Pam Squire dated April 14, 2014, and Dr. Douglas Coleman dated July 9,
2014, and May 6, 2015. By way of example, in his May 9, 2012, report, Dr.
Travlos states:

In my opinion, Mr. Jack requires
detoxification from his substantial doses of narcotics. His current dose of
medication is the equivalent of close to 700 mg of morphine per day. This is
substantial and very problematic. It implies substantial dependency and
addiction. His current level of medication is at a therapeutic window that is
dangerous.

[6]            
The defendants say that while the issue of the plaintiff’s use of
medications was well known, up until very recently, there was no allegation of
negligence on the part of Dr. Smith in prescribing such medications. They say
that that changed when the plaintiff served the report of Dr. Christian Rucker
on August 22, 2015. Dr. Rucker’s report was written in reply to the most
recent report of Dr. Coleman and addresses the issue of the plaintiff’s drug
dependency.

[7]            
The defendants point in particular to a comment of Dr. Rucker found at
page 7 of his report where he states:

To blame the patient for being
prescribed large doses of opiates is clearly unjust. The prescribing physician
is required to adequately assess a patient and to employ a medication such an
opiate appropriately for a chronic pain problem. It is well known that opiates
can potentially cause various side effects that have to be balanced with
therapeutically desired effects.

[8]            
The defendants say that Dr. Rucker’s opinion represents a “game-changer”
in that it raises for the first time the spectre of negligence on the part of
Dr. Smith. They say that if it is going to be the position of the plaintiff at
trial that any drug addiction is the fault of Dr. Smith, then they are entitled
to seek contribution from him by way of a third party claim.

[9]            
Third party claims are governed by Rule 3-5 of the Supreme Court Civil
Rules. That Rule sets out the circumstances in which a third party claim
may be advanced. Pursuant to Rule 3-5(4), the defendants require leave to file
and serve the third party notice because more than 42 days have elapsed since
the notice of civil claim was first filed.

[10]        
Whether or not to grant leave is a matter of discretion for the court. The
factors governing the exercise of that discretion were described by Mr. Justice
Goepel, as he then was, in Tyson Creek Hydro Corporation v. Kerr Wood Leidal
Associates Limited at 2013 BCSC 1741 [Tyson Creek] as follows:

                      
(a)         
prejudice to the parties;

                      
(b)         
expiration of limitation period;

                      
(c)         
the merits of the proposed claim;

                      
(d)         
any delay in proceedings; and

                      
(e)         
the timeliness of the application.

Mr. Justice Goepel’s decision was affirmed by the Court of
Appeal at 2014 BCCA 17.

[11]        
As noted, the defendants say that the allegations of negligence against
Dr. Smith emanating from Dr. Rucker have changed the focus of the case. Given
the allegation, they are entitled to seek contribution from Dr. Smith. Recognizing
that the late addition of a third party might prejudice the upcoming trial
date, they submit that the court should grant leave to file the third party
notice, but then sever the third party claim so that the trial can proceed as
scheduled. As noted, the other defendants in the two actions support the
application.

[12]        
Dr. Smith opposes the application. He submits that the defendants have
offered no explanation for the delay in bringing the application. He says that
the issue of the plaintiff’s overuse of medications has been well known and
documented in the various reports dating back many years and was there for the
defendants to see. He submits further that all the defendants say by way of
explanation for the delay in bringing this application is that they became
aware of Dr. Rucker’s criticism when Dr. Rucker’s report was served, but this
does not go so far as to say that they had no prior awareness of a possible
claim against Dr. Smith.

[13]        
Dr. Smith opposes the defendants’ proposal of permitting the third party
notice to be filed and then severing that claim. He submits that this will put
him in a untenable position in that he will appear at trial to speak to his
expert report knowing that he will be subject to a further proceeding at a
later date in which he may be found liable.

[14]        
The plaintiff also opposes the application. He echoes Dr. Smith’s
submission that there is insufficient evidence explaining the delay in bringing
the application. He submits, as well, that Dr. Rucker’s report does not go so
far as to allege negligence on the part of Dr. Smith.

[15]        
I do not propose to go through all of the factors set out in Tyson
Creek. Rather, I will address the factor that is, in my view, most
applicable in the circumstances of this case, that being the timeliness of the
application. As noted, the defendants submit that the issue of the standard of
Dr. Smith’s care, and thus the possibility of a third party claim, only came to
light with the service of Dr. Rucker’s report. With respect, there are a number
of difficulties with this position.

[16]        
First, as I noted previously, the issue of the plaintiff’s use of
medications has been a consistent theme running through many of the expert
medical reports. Dr. Smith’s role in prescribing the medications would
have been well known to all of the parties both by virtue of the fact that he
has been the plaintiff’s primary treating physician throughout and also because
the parties have access to the plaintiff’s PharmaNet records.

[17]        
Second, the issue of the care provided to the plaintiff was, in fact,
raised in the May 16, 2015 expert report of Dr. Coleman commissioned by the
defendants. He states at page 12:

I believe that Mr. Jack is in the
grip of an advanced opioid dependence syndrome – aggravated by aspects of his
medical care and unrestricted access to high potency narcotics. It is my
opinion that most, if not all of the distress … Mr. Jack [is] experiencing has
been caused either directly, or exacerbated substantially by what I believe to
be his compulsive use of high potency opioid analgesics.

[18]        
Dr. Coleman states further at page 13:

I believe that Mr. Jack’s medical
care, both before and after residential treatment, would best be provided by a
certified addiction consultant (physician) experienced in inducing remission in
those dependent upon the types and dosages of medication currently
characterizing Mr. Jack’s medical management.

[19]        
I read these passages as calling into question the standard of care that
the plaintiff has received, particularly in relation to the use of medications.

[20]        
Third, while Dr. Rucker does, as noted, comment on the role of the
prescribing physician when a patient is consuming opiate medications, he also
notes in his report that:

…therefore few skilled
physicians for managing adequately complex chronic pain conditions. Historically,
opiates were pushed to treat chronic pain and physicians have been told that they
neglect and undertreat chronic pain. Physicians were told that there is no
limit to the dose of opiates in providing more analgesia and even the most
senior pain physicians in the Vancouver area have had a past pattern of
prescribing very high doses of opiates.

[21]        
Thus, rather than Dr. Rucker introducing a whole new basis of liability,
as suggested by the defendants, his report is, in my view, consistent with past
reports, particularly Dr. Coleman’s, that suggest that the plaintiff requires treatment
by an expert in pain management. However, that opinion does not necessarily
support the allegation or inference that Dr. Smith was negligent.

[22]        
Finally, as submitted by Dr. Smith, the only real explanation given for
the delay in bringing this application is found in the affidavit of Ms. Kruk, a
paralegal at the firm of counsel for the defendants. She deposes at paragraph
20 of her affidavit that the defendants only became aware of Dr. Rucker’s
criticisms of Dr. Smith’s prescribing practices when the plaintiff’s counsel
served Dr. Rucker’s medical-legal report on August 22, 2015.

[23]        
With the greatest of respect to Ms. Kruk, that is not, in my view, an
adequate explanation for the defendants’ delay. For one thing, it is not clear
to me that Ms. Kruk is in a position to speak to the state of knowledge of the
defendants and, in any event, she does not address the broader question of when
the defendants first became alive to the issue of the plaintiff’s use of
medications and Dr. Smith’s role in that use.

[24]        
For all of these reasons, I am not satisfied that the defendants have
adequately explained the delay in bringing the application to file the third
party notice.

[25]        
Further, I am of the view that permitting the defendants to bring the
third party claim at this late date, even with the defendants’ proposal to
sever that claim, would change the focus and dynamics of the trial in a way
that would prejudice the plaintiff. In contrast, the defendants are not
prejudiced by refusing the application in that they will be free to pursue a
separate claim against Dr. Smith at a later date. Whether such a claim will, in
fact, be brought will no doubt be informed by the results of the trial. While I
acknowledge that the courts typically prefer to avoid multiple proceedings,
this is a case in which it is appropriate to leave the proposed third party
claim to a later date.

[26]        
For these reasons, the application for leave to file a third party
notice is dismissed.

[27]        
The second application brought by the defendants is for an order
compelling the plaintiff to answer interrogatories. The interrogatories in
issue are dated September 3, 2015, and are directed to determining if and when
the plaintiff and various physicians received the medical reports of other
physicians. As I understand it, the objective of the interrogatories is to
explore the issue of the plaintiff’s mitigation, specifically, what if any,
steps he took to address treatment issues raised in the reports.

[28]        
A number of cases have considered the factors that inform a
determination of whether interrogatories are appropriate. Those factors include
the requirement for relevance, the desire to avoid a duplication of
particulars, and the fact that interrogatories, while a form of discovery, are
narrower in scope than an examination for discovery: see, for example, Smith
v. Global Plastics Ltd., 2001 BCCA 275.

[29]        
In this case, to the extent that the interrogatories go to the
plaintiff’s knowledge of treatment recommendations, they are relevant to the
issue of mitigation as a failure to mitigate has been pled. In particular, it
is relevant to that defence of when the plaintiff came into possession of
various of the medical reports, if at all. Again, that goes to the question of
whether he properly mitigated his damages by following or not following
recommendations made in those reports.

[30]        
Thus, I am satisfied that the interrogatories directed to the
plaintiff’s personal knowledge, being those interrogatories that ask when he
personally received the reports, are proper and should be answered. I would add
that contrary to the submission of the plaintiff, I do not view those
communications as privileged.

[31]        
The other interrogatories, however, are of a different character. They
ask when and if certain reports were given to various physicians. It is not
clear to me that that information is within the personal knowledge of the
plaintiff. Further, those are questions that go to counsel’s conduct of the
plaintiff’s case in that it is typically counsel who retains and instructs
expert witnesses. Lastly, the question of what information a doctor had when
preparing his or her report is properly an issue to be canvassed with that
doctor in cross-examination, but I fail to see how that information is relevant
to the argument that the plaintiff failed to mitigate.

[32]        
Accordingly, I order that the plaintiff answer interrogatories number 1,
3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 25, and 27. The plaintiff is not required
to answer the remaining interrogatories. The responses will be delivered to
counsel for the defendants by 4:00 p.m. on Wednesday, September the 30th.

[33]        
Costs of both applications will be in the cause.

[34]        
MR. MAH:  My Lord, just to clarify, it is every odd number — from one
to 27?

[35]        
THE COURT:  Yes, the ones that ask about when the plaintiff received the
reports as distinct from when other physicians received them.

“Skolrood
J.”