IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160216

Docket: M136276

Registry:
Vancouver

Between:

Jodene
Gee

Plaintiff

And

Baltej Basra

Avtar Basra

A-G
Tej Construction Ltd.

Defendants

Before:
Master McDiarmid
in Chambers

Oral Reasons for Judgment

[1]            
THE COURT: The plaintiff was injured in a motor vehicle accident
on October 4, 2011. Liability for the accident has been admitted.

[2]            
The defendants filed a notice of fast track, and the matter was
initially set for trial for three days, reset at the trial management
conference for five days commencing February 22, 2016.

[3]            
The plaintiff has had issues since the motor vehicle accident, including
headaches and chronic pain, which affect her ability to work.

[4]            
This is an application to adjourn the trial, which is set to commence
next Monday.

[5]            
To say that the application is brought late is an understatement. The
defendants’ counsel has properly pointed out the fact that the basis for the
adjournment, which is to enable the plaintiff to undergo a series of Botox injections
in an effort to alleviate her severe headaches allegedly caused by the motor
vehicle accident, was known to the plaintiff sometime in October of 2015, when
her expert neurologist wrote a medicolegal report dated October 2, 2015, sent
to plaintiff’s counsel.

[6]            
In that report, Dr. Spacey at p. 8 of 8 writes, under the heading
“Prognosis”:

Jodene [the plaintiff] is now four years post injury and has
fully participated in the range of therapy offered to her. She continues to
experience significant headache, which interferes with her ability to perform
at work, at home with household duties, and fully participate in social
activities. Headache which is resistant to therapy after such a prolonged
period of time has a low probability of recovery, but I feel I could not fully
comment on prognosis until she has had a trial of Botox injections. I would
recommend Botox, 200 units, every three months for a minimum of three cycles
following the pre-empt Chase The Pain [sic] protocol.

[7]            
The plaintiff was seeking treatment from this entity called CHANGEpain. On
December 15, 2015, the plaintiff received an email from that entity, which
includes the following, para. 2:

As her headache pain has been refractory to the CHANGEpain Clinic’s
ultrasound-guided procedure program iSITES, Botox should be considered. If the
percutaneous sphenopalatine ganglion block does not provide benefit, consider Botox
injection therapy recommendations for Jodene to consider. Botox onabotulinumtoxinA
is an approved neurotoxin therapy for headache.

And then there’s a paragraph
about risks and systemic effects.

[8]            
The ganglion block appointment was booked for January 26, 2016. On
January 6, 2016, the plaintiff wrote an email as follows. She wrote it to the
CHANGEpain “If I wanted to change my Jan 26 appointment to get the Botox
would I be able to …”

She goes on to discuss that a
little bit.

[9]            
That is responded to the same day as follows:

We can’t convert the existing appointment that you have into
a Botox treatment appointment as Botox appointments are longer appointments
scheduled on specific days. You may also need to obtain a prescription from Dr.
Berkman, et cetera. We suggest keeping your next appointment with Dr. Berkman
to discuss the effects of your last treatment and to obtain the Botox prescription
from him as needed.

[10]        
At the trial management conference on February 5, 2016, no mention was
made to adjourn the trial. It had been booked for five days as three days was
insufficient.

[11]        
Mr. Read accurately points out that trial preparation is well underway. I
note that the cases I was referred to make comment on the fact that these sorts
of applications that were considered in those cases referred to me were brought
promptly. I am advised that the trial preparation includes arranging a
videoconferencing for a defence expert who is vacationing in South America.

[12]        
The failure to have this matter heard undoubtedly constitutes prejudice
to the defendants. This is discussed in the leading case from our Court of
Appeal, Sidoroff v. Joe, (1992), 76 B.C.L.R. (2d) 82, where Mr. Justice
Lambert writes at para. 10:

The balancing of the interests of
justice is a difficult and delicate matter that requires a careful
consideration of all of the elements of the case and certainly one of them is
the expeditious and speedy bringing to a conclusion of these matters of
injuries arising from motor vehicle accidents. So there is no error in
principle in stating that as an aspect of the over all interests of justice.

[13]        
In that case, Justice Lambert goes on in para. 14 to write:

The assurance that that will take
place [referring to some logistical issues] gives us the opportunity of being
satisfied that all questions affecting the justice in this case will continue
to be before the trial judge. He will have a chance to consider them all within
his proper jurisdiction once the trial is begun tomorrow morning.

[14]        
In that case, of course, the adjournment was refused and the appeal was
dismissed.

[15]        
There are further facts here that I have considered. In an email to
counsel on February 12, 2016, Dr. Spacey writes:

I would recommend 200 units of Botox be injected following
the Pre-empt Protocol at an interval of 3 months for a minimum of 3 cycles. If
Jodene responds to this trial the duration that she will require the injections
is unknown, possibly indefinitely.

Then there is a reference
presumably to some of the scientific literature.

[16]        
As set out in the plaintiff’s affidavit, the present cost of one
injection is $731.37. I do not know whether PharmaCare and/or the plaintiff’s
medical coverage, if any, pays that cost or a portion.

[17]        
In plaintiff’s counsel’s affidavit, she deposes at paras. 5 and 6:

The plaintiff took time over the
Christmas holidays to consider treatment options and in January of 2016 began
making efforts to receive Botox injections. The earliest appointment date she
was able to obtain was March 10, 2016. The current trial date does not allow
the plaintiff to pursue treatment recommendations of her doctors.

[18]        
The next paragraph, the first sentence is argument “If the trial is not
adjourned, the plaintiff will be prejudiced.”

[19]        
That is for me to determine. The next “She could face high cost of Botox
injections into the future.” That is deposable fact.

[20]        
I conclude that this is not a situation similar to Sidoroff. All
questions affecting the justice of the case will not be before the trial judge.
He will not know whether Botox is effective to ameliorate the headaches. The
judge will not even be able to have estimates of the chance of the Botox
working. No such evidence is in the materials, and in fact in the passage I
previously cited from Dr. Spacey, she cannot fully comment on prognosis until
the plaintiff has undergone a trial.

[21]        
That prejudice caused to the plaintiff if she cannot undergo the treatment
and assess its results significantly outweighs prejudice to the defendants,
who, as noted, have admitted liability. The prejudice to the defendants can be
ameliorated largely in costs.

[22]        
Accordingly, I grant the adjournment with the following terms:

1)     The defendant
is entitled to costs thrown away, which I am going to assess summarily at
$1,000. That is for trial preparation. They are also entitled to full
reimbursement for the cost for arranging videoconferencing testimony of Dr.
Richards. Those costs are to be set off from any amount recovered by the
plaintiff; in other words, they are not payable forthwith;

2)     The
defendant is entitled to a further independent medical examination of the
plaintiff by a specialist of its choosing; and

3)    
The defendant is entitled to a further half day discovery.

[23]        
Any questions or issues arising from any of that, Mr. Burtini?

[24]        
MR. BURTINI:  No, Your Honour.

[25]        
THE COURT:  Mr. Read?

[26]        
MR. READ:  None, Your Honour.

[27]        
THE COURT:  Thank you both. Submissions were excellent and I appreciate
them.

“Master
R.W. McDiarmid”

MASTER
MCDIARMID