IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151119

Docket: M142152

Registry:
Vancouver

Between:

Terath (Terry)
Singh Thandi

Plaintiff

And

James Jarvis Kengi
Hartman Higuchi

Defendant

Before:
Master Harper

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: The defendant applies for an order that the plaintiff
submit to an independent medical examination with a neurologist, Dr. Dost.

[2]            
The plaintiff claims damages for injuries sustained in a motor vehicle
accident which occurred on April 20, 2012. The plaintiff’s counsel says the
injuries are largely soft tissue in nature, although the medical evidence does
indicate some complaints with respect to headaches.

[3]            
The plaintiff has already been subjected to an independent medical
examination at the request of the defendant by an orthopaedic surgeon, Dr. Loomer.
This examination took place on March 31, 2015 but the report has not been
disclosed to the plaintiff and, therefore, of course was not in evidence before
me.

[4]            
The plaintiff has agreed to attend a functional capacity evaluation. So
this application is in effect for a third independent medical examination.

[5]            
The law in this area is well-known. The defendant bears the onus of
proving that the subsequent independent medical examination is necessary to put
the parties on a relatively equal footing.

[6]            
The major impediment to the defendant’s application in this case is the
absence of Dr. Loomer’s report. It might be the case that the defendant
could establish the necessity for a third independent medical examination before
a neurologist, but the Court does not have sufficient evidence to assess that
issue. Here, I rely on Koulechov v. Dunstan, 2015 BCSC 393 at para. 6,
which is on all fours with this application:

[6]        It is counsel’s
prerogative, of course, to control the timing of disclosure in a civil case.
However, an order for a second independent medical examination under Rule 7-6
is a discretionary remedy that will only go if it is required to put the
parties on an equal footing with respect to medical evidence: Stainer v.
Plaza, 2001 BCCA 133 at para. 8. In the present application, in the
absence of Dr. Gittens’ report, it is impossible for me to evaluate if
there is any inequality in evidence or if an orthopaedic IME could redress it.

[7]            
Applying the Koulechov decision to the present application,
I am not in a position to assess whether the medical complaints that
involve neurological complaints were addressed by Dr. Loomer, could have
been addressed by Dr. Loomer, or whether Dr. Loomer declined to opine
on any neurological complaints because it was outside his area of expertise.

[8]            
So quite simply, the defendant has not met the evidentiary burden
necessary to justify the order sought and, therefore, I dismiss the
application.

[SUBMISSIONS RE COSTS]

[9]            
THE COURT:  I will grant the plaintiff his costs on Scale B in any
event of the cause.

“Master Harper”