IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100303

Docket:
S17725

Registry: Chilliwack

Between:

Crystal
Warkentin

Plaintiff

And

Glenda
Elizabeth Riggs

Defendant

Before: Master Caldwell

Reasons for Judgment

[1]            
This matter arises from a motor vehicle accident
which occurred on March 14, 2005. In her Statement of Claim, the plaintiff
alleges injury to her neck, and right shoulder; she also alleges “other
injuries, full particulars at trial”. Liability was admitted in the Statement
of Defence. A first trial was set for January 2009 but was adjourned when the
plaintiff’s first counsel was appointed to the British Columbia Supreme Court
bench. A new seven day trial was set to proceed on May 3, 2010. Counsel for the
defendant now seeks to adjourn that new trial date, alleging that the
plaintiff’s claim has materially changed from that which was pled.

[2]            
The basis for the defendant’s complaint rests in
the 10 expert reports which the plaintiff delivered on November 20, 2009, and
in particular the report of Dr. Hunt. In that report, Dr. Hunt diagnoses:

(a)        Whiplash
Associated Disorder with associated cervicogenic tension headaches and
myofascial pain syndrome;

(b)        Stratus post right shoulder
arthroscopic acromioplasty;

(c)        Primary fibromyalgia syndrome
(post-traumatic);

(d)        Mood
disorder (dysphoria), sleep disorder secondary to chronic pain condition;

(e)        Inflammatory
bowel disease.

[3]            
In short, the defendant says that the pleadings
do not disclose the above injuries or complaints and that the defence is unable
to amass evidence to oppose these new claims within the time remaining prior to
trial. Further, defendant’s counsel says that the trial cannot be completed in
seven days but rather will require at least 10, or more likely, 15 days.
Plaintiff’s counsel does not strenuously disagree with these estimates but says
that at least 10 days are available in New Westminster if the matter is moved
to that registry for trial.

[4]            
The overall and oft quoted test to be applied on
adjournment applications was stated by Martinson J. in Novak v. Bond,
[1998] B.C.J. No. 2034 (BCSC) at para. 11:

The question of
granting an adjournment is a matter of discretion, to be exercised in
accordance with the interests of justice. This requires a balancing of
interests of the plaintiff and the defendant: Sideroff v. Joe (1992), 76
B.C.L.R. (2d) 82 (C.A.). The paramount consideration that must be maintained in
the exercise of that discretion is to ensure that there will remain a fair
trial on the merits of the action: Cal-Wood Door v. Olma, [1984] B.C.J. No.
1953 (C.A.). I will first consider the interests of Mrs. Novak and then those
of Dr. Bond.

[5]            
The defendant says that due to inadequate
pleadings and “late” disclosure of the complaints itemized in para. 2(a)-(e)
above, a fair trial on the merits is not possible. Plaintiff’s counsel responds
that the original pleadings, while general, were “elegant in their simplicity”
and encompassed the more detailed diagnoses which have now been provided. He
says further that the seeds for the recent diagnoses were contained in the
clinical records provided by the plaintiff in early 2009, but that the
defendant failed to request particulars. Lastly, plaintiff’s counsel says that
disclosure of the reports was made five and a half months before trial, not 60
days as required by the Rules. Such disclosure was a full month before the
defendant’s counsel disclosed his expert reports. He says, in summary, that
defendant’s counsel was content to rely upon disclosure rules until he realized
the difficulty of the plaintiff’s expert reports and now he complains; he
submits “live by the sword, die by the sword”.

[6]            
In my view, the general pleadings of the
plaintiff met the requirement of pleadings under the Rules. The defendant had
disclosure of the clinical records early and had the opportunity to review them
and demand particulars. A summary of some of those references appeared in the
affidavit #2 of Deborah Werk at para. 4 as follows:

(a)        Printout
from the College of Pharmacists (Pharmanet records) which documents
prescriptions for Amitriptyline, an antidepressant, starting in May 2007 until
November of 2008 (the last day of the history) (Exhibit “A”). The Pharmanet
records were pre-paid by Baker Newby on January 16, 2009 (Exhibit “B”), and
sent by MacAdams to Baker Newby on January 22, 2009 (Exhibit “C”). The
Pharmanet records were thereafter listed in the plaintiff’s second supplemental
list of documents dated February 16, 2009;

(b)        In
September 2007 Ms. Warkentin was examined by Dr. Jaworski, physical medicine
and rehabilitation specialist, on referral from her family doctor, Dr. Frew. In
his consultation report dated September 19, 2007 Dr. Jaworski noted that “her
sleep is affected and she feels emotionally affected as well (depressive
features). Impression: Chronic myofascial pain syndrome affecting primarily the
right trapezius muscle…There is additionally a concern about her emotional
well-being (? Depression)”. Now shown to me and marked as Exhibit “D” to
this my Affidavit is a copy of Dr. Jaworski’s consultation report dated
September 19, 2007. This consultation report was included in the clinical
records of Dr. Frew, which records were listed in the defendant’s first
supplemental list of documents dated August 1, 2008. Now shown to me and marked
as Exhibit “E” to my Affidavit is a copy of the defendant’s first supplemental
list of documents dated August 1, 2008;

(c)        In
October of 2007 Ms. Warkentin was again examined by Dr. Jaworski who noted “her
condition is consistent with chronic myofascial pain syndrome…” Now shown
to me and marked as Exhibit “F” to my Affidavit is a copy of the October 10,
2007 consultation report. This consultation report was included in the clinical
records of Dr. Frew listed in the defendant’s first supplemental list of
documents dated August 1, 2008 (exhibit E);

(d)        In
October 2007 Ms. Warkentin was examined by Dr. Knazan, neurologist, on referral
from her family doctor. Dr. Knazan noted in his October 11, 2007 consultation
report that Ms. Warkentin had been suffering from headaches since the accident.
Dr. Knazan’s impression was that Ms. Warkentin was suffering from “tension type
headaches…” And “myofascial pain syndrome affecting the right shoulder
and posterior cervical region”. Now shown to me and marked as Exhibit “G”
to my Affidavit is a copy of the October 11, 2007 consultation report. This
consultation report was included in the clinical records of Dr. Frew listed in
the defendant’s first supplemental list of documents dated August 1, 2008
(exhibit E);

(e)        In
April of 2008 Ms. Warkentin was examined by Dr. Jaworski. In his consultation
report dated April 3, 2008 Dr. Jaworski noted “she has tenderness in
fibromyalgic points in the upper body bilaterally.” “… her condition remains
consistent with chronic myofascial pain syndrome affecting primarily her right
trapezious muscle.” Now shown to me and marked as Exhibit “H” to my
Affidavit is a copy of the April 3, 2008 consultation report. This consultation
report was included in the clinical records of Dr. Frew listed in the
defendant’s first supplemental list of documents dated August 1, 2008 (exhibit
E);

(f)         I
have reviewed the clinical records of Dr. Frew and note the following records
at May 14, 2008: “long discussion re chronic pain/headaches”. Now shown
to me and marked as Exhibit “I” to my Affidavit is a copy of the May 14, 2008
clinical note. These clinical records were provided to Baker Newby under cover
of MacAdams letter dated January 22, 2009 (Exhibit C);

(g)        In
June 2008 Ms. Warkentin attended a follow up with Dr. Jaworski. In his
consultation report dated June 11, 2008 Dr. Jaworski confirmed his previous findings
when he advised “… she has tenderness in fibromyalgic points in her upper
body bilaterally.” … “Overall, the course of her condition remains consistent
with chronic myofascial pain syndrome.” Now shown to me and marked as
Exhibit “J” to my Affidavit is a copy of the June 11, 2008 consultation report.
This consultation report was included in the clinical records of Dr. Frew
listed in the plaintiff’s third supplemental list of documents dated October
14, 2009 and sent to Baker Newby on October 16, 2009. Now shown to me and
marked as Exhibit “K” to my Affidavit is a copy of the third supplemental list
of documents dated October 14, 2009 and the October 15, 2009 cover letter to
Baker Newby;

(h)        Further
review of Dr. Frew’s clinical records in November of 2008 notes the following
on November 13, 2008: “discussed: sleep, mood regulation”. Now shown to
me and marked as Exhibit “L” to my Affidavit is a copy of the November 13, 2008
clinical note. These clinical records were provided to Baker Newby under cover
of MacAdams letter dated January 22, 2009 (Exhibit C); and

(i)         The March 10,
2009 clinical records of Dr. Frew note “FMS 17/19” [fibromyalgia
syndrome] and “counseled [sic] re FMS/sleep/pain”. Now shown to me and
marked as Exhibit “M” to my Affidavit is a copy of the March 10, 2009 clinical
note. These clinical records are listed in the plaintiff’s third supplemental
list of documents sent to Baker Newby on October 16, 2009 and marked as exhibit
K to this Affidavit.

[7]            
I must presume that the defendant’s demands for
clinical records are demands for actual information which will be reviewed and
analyzed, not simply demands for pro-forma production of and access into the
plaintiff’s medical records simply because an action has been commenced.

[8]            
If I am wrong on that point, I am of the view
that the disclosure of the plaintiff’s 10 expert reports, including that of Dr.
Hunt, on November 20, 2009 provided the defendant with more than sufficient
time to defend the claim. The Rules provide for 60 days notice; this disclosure
was nearly three times that. Even under the new Rules which come into effect in
July, the notice period is 84 days or half the notice provided in this case. In
paras. 29 – 31 of the affidavit of Jason Filek, he deposes:

29.       In
order to respond to the opinions contained in the Plaintiff’s reports which
were delivered on November 20, 2009 I endeavoured to arrange appointments for
further defence independent medical examinations in corresponding specialties.
As a result of Dr. Hunt’s diagnosis of trauma induced fibromyalgia syndrome, a
mood disorder and a cognitive disorder, I considered it necessary to obtain an
opinion and report from a rheumatologist, a neurologist, and a psychiatrist.
Unfortunately, due to the late receipt of the Plaintiff’s reports appointments
could not be arranged prior to the scheduled trial date of May 3, 2010.

30.       I
have been able to arrange for medical examinations of the Plaintiff as follows:

(a)        Dr.
John Wade, Rheumatologist, May 20, 2010;

(b)        Dr.
Stanley Hashimoto, Neurologist, May 30, 2011; and

(c)        Dr.
Derryck Smith, Psychiatrist, June 3, 2010.

31.       I
attempted to arrange for medical examinations of the Plaintiff with the
following alternate specialists;

(a)        Dr.
Peter Rees, Neurologist, but he is not booking appointments until October 2012;

(b)        Dr.
Philip Teal, Neurologist, but he is no longer booking appointments as he is
booked through 2012;

(c)        Dr.
Alan Yorke, Neurologist, but he was unavailable until July 15, 2010;

(d)        Dr. Alister
Prout, Neurologist, but is no longer booking appointments as he is booked
through 2012.

[9]            
No evidence as to the extent of additional efforts
made or experts canvassed is provided. The time lines dictated by the Rules
require diligence in the pursuit of rebuttal evidence; this may require a
substantial expansion of the pool of experts who are consulted and utilized by both
plaintiff’s and defence Bar.

[10]        
The motor vehicle accident was five years ago.
Liability is not disputed. The plaintiff is “out” almost $20,000 in out of
pocket expenses. There is no proposal by either party as to any form of advance.
An adjournment will result in significant delay.

[11]        
The application to adjourn the trial is
dismissed. There is no application before me to move the trial to New
Westminster, and as the plaintiff’s counsel wishes to push for strict adherence
to the Rules I make no order in that regard. Costs will be to the plaintiff in
any event of the cause.

“Master Caldwell”