IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101025

Docket: 16558

Registry:
Cranbrook

Between:

Brendon Bishop by
his Litigation Guardian

Charlotte Bishop

Plaintiff

And

Miles Minichiello
and

Richard Minichiello

Defendants

Before:
The Honourable Mr. Justice McEwan

Ruling

[1]            
This ruling arises in the context of an extensive application for
various forms of pre-trial evidence gathering and disclosure, most parts of
which were ultimately spoken to by consent at a hearing on September 30, 2010.
At that time I seized myself as the management judge. This development and the
matters the parties spoke to are expected to be promptly embodied in an order
that includes the disposition contained in these reasons.

[2]            
The issue upon which the parties were unable to come to terms is time
sensitive, inasmuch as a ruling is required before a series of scheduled
medical and psychiatric examinations, the first of which is set for October 28,
2010, can proceed.

[3]            
The case involves a claim for damages arising out of a motor vehicle
accident that occurred on July 23, 2005. It concerns Brendon Bishop, who was
born March 18, 1988 and was 17 years old at the time of the accident.
Because he was under 19 when legal process issued on May 1, 2006, his mother,
Charlotte Bishop, signed a Certificate of Fitness as the proposed litigation guardian
setting out Brendon Bishop’s infant status. The Writ was then issued on behalf
of the plaintiff “by his Litigation Guardian, Charlotte Bishop”.

[4]            
Mr. Bishop has, obviously, long since attained the age of majority.
There has, however, been no change in his status as plaintiff to date. Rule 20–2(12)
addresses the situation of a party whose status changes as a result of the
attainment of the age of majority. He or she may file an affidavit to that
effect and assume conduct of the litigation, following which the litigation
guardian is removed from the style of cause.

[5]            
Counsel for the plaintiff characterizes the status of Charlotte Bishop
as the litigation guardian as “in limbo” and “under review”. The circumstances
outlined to the court suggest at least an issue as to whether the claim
involves allegations of injury that render Brandon Bishop unable to appreciate
the extent of his own injuries and unable to effectively conduct the litigation
on his own behalf.

[6]            
There have, as yet, been no proceedings in this matter to clarify the
status of the plaintiff. It appears that any such consideration would start
from the proposition that Brendon Bishop, as an adult person, would be presumed
to be capable of making decisions about his own affairs unless the contrary
were demonstrated. If no legal disability were established Charlotte Bishop
would not be entitled to act as Ms. Bishop’s litigation guardian (see: Holland
(Guardian ad Litem of) v. Marshall 2009 BCCA 582, at paras. 11 and 12).

[7]            
The present situation is, therefore, that the basis on which Charlotte
Bishop became litigation guardian no longer pertains; that an issue has arisen
as to whether, on a different basis, she ought to continue in that capacity;
and that nothing has been done either to positively establish that she must
continue in that capacity, or to remove her from the style of cause.

[8]            
This is the preface to the present controversy which is whether the
defendant is entitled to an order that:

The litigation guardian,
Charlotte Bishop, shall attend at all independent medical examinations of the
plaintiff, Brendon Bishop, including those ordered on June 23, 2010, and
respond to any relevant question concerning the medical condition or history of
the plaintiff, Brendon Bishop, where the plaintiff is alleged to be unable or
unwilling to provide a complete and accurate response to the same. The
defendant, Richard Minichiello, shall pay all reasonable expenses incurred by
the litigation guardian in attending at the said examinations.

[9]            
The plaintiff resists this on the basis that the Rule, Rule 7-6(1)-(3)
does not provide for a person other than the person who is to be examined to
attend such an appointment and answer questions:

(1)        If the physical or
mental condition of a person is in issue in an action, the court may order that
the person submit to examination by a medical practitioner or other qualified
person, and if the court makes an order under this subrule, the court may also
make

 (a)        an order respecting any expenses
connected with the examination, and

 (b)        an
order that the result of the examination be put in writing and that copies be
made available to interested parties of record.

(2)        the court may
order a further examination under this rule.

(3)        A person who is
making an examination under this rule may ask any relevant question concerning
the medical condition or history of the person being examined.

[10]        
The plaintiff’s concern is outlined in counsel’s submission:

12.       The above Rule
provides that only the person whose physical or mental condition is in issue,
must submit to an IME and questioning by the opposing expert. There is no
reference to litigation guardian, family members or any other witnesses.

13.       Leaving aside the
unique position of a litigation guardian, such an order would place a witness
under compulsion to give evidence to someone who is not a lawyer (that is, not
an officer of the court), with all of the professional duties and
responsibilities that implies. It would compel a witness to be interviewed by
someone without such professional constraints.

14.       Witnesses are not
under any compulsion to talk to anyone, whether on the plaintiff or on the
defence side, subject only to an order being made on proper grounds under Rule
7-5 (formally Rule 28), in which event they are to attend before a court
reporter, be placed under oath or affirmation, and submit to questioning by the
lawyers for both sides (who are entitled to attend), whereupon a transcript can
be made. An order such as the defence seeks would effectively abrogate all of
this and not only places the witness one-on-one in a private office or other
setting but, in fact, could potentially place the witness in the invidious
position of being at loggerheads with the expert as to what was said.

15.       The evidence of a
witness may be obtainable under Rule 7-5 on application. The evidence of a
litigation guardian is obtainable on discovery under Rule 7-2 without order. In
either case, it is counsel who are tasked with the role of extracting from that
evidence those facts and assumptions which counsel expect to prove at trial.
The evidence of the witness or litigation guardian is therefore available from
properly-regulated other sources. And as to counsel’s role, it is well-known
that our courts disapprove of sending discovery transcripts to experts for the
expert to pick and choose the evidence he thinks appropriate. It seems equally
improper to send the witness or litigation guardian to the expert directly.

[11]        
The defendant submits that the attendance of the litigation guardian is
necessary because:

a.         Brendon Bishop acts
through his litigation guardian, who is subject to the Court’s jurisdiction;

b.         The plaintiff seeks
the cost for a family member to accompany Mr. Bishop, presumably because of his
ongoing legal disability;

c.         Acting under a legal
disability, the defendant, Richard Minichiello, has no assurance what use may
be made of Mr. Bishop’s discovery evidence until the trier of fact makes such
determination;

d.         The defendant,
Richard Minichiello, may be severely prejudiced at trial if an expert’s report
is deemed to be inadmissible or of little weight because information provided
by Mr. Bishop is held to have been incomplete or unreliable as a result of his
legal disability;

e)         Similarly,
unreliable, incomplete or inaccurate information provided to the defendant,
Richard Minichiello’s, expert as a result of his legal disability may destroy
any chance of early settlement; and

f)          The plaintiff
submits that evidence obtained from the litigation guardian at discovery can be
provided to the said experts. Clearly, the plaintiff’s approach is expensive
and inefficient, likely leading to numerous requests for further discoveries
and hindering the expert’s examination.

[12]        
The defendant submits that although Rule 7-6 (1)-(3) makes no specific
provision for a person other than the party to be examined to attend and answer
questions, Wong (guardian ad litem) v. Wong [2006] B.C.J. No. 3123
(C.A.) established that the court may, in the interests of justice make
ancillary orders to give effect to the purpose of the Rules, found in Rule 1(5)
[now Rule 1-3]. In Wong, the question was whether the court could order
a plaintiff to video tape an examination:

[21]      Rule 30(1) gives the
court a discretionary power to order a person to submit to a medical
examination, and a further discretion to make the ancillary orders identified
in subparagraphs (a) and (b) of the Rule. The absence of any reference to other
discretionary power, and in particular a power to order or prohibit use of an
audio tape recorder, might be taken as evidence of a legislative intent to
restrict the court’s discretion to the powers specified.

[22]      However, all rules
must be read in light of Rule 1(5) which provides:

 The object of these
rules is to secure the just, speedy and inexpensive determination of every
proceeding on its merits. ..

[39]      … The purpose of our
Rule 30 is to enable the defence to have an independent medical examination as
a means of putting the defence on a more or less equal footing with the
plaintiff, so far as possible. The defence medical serves as a means of testing
the soundness of opinions advance on the plaintiff’s behalf, and if necessary
of leading evidence to support the defence position in answer to the plaintiff’s
case…

[43]      With those
considerations in mind, I agree with the views of Brooke J.A. that the rules
contemplate an examination conducted in a manner that “in the judgement of the
doctor, best facilitates the examination.” The quality of the examination is
“dependent on the skill and integrity of the doctor in conducting an
examination in a manner that will best facilitate discovery in the adversarial
process.” In the words of Doherty J.A., the most important consideration is
“the opposing party’s ability to learn the case it has to meet by obtaining an
effective medical evaluation.”…

[48]      While I am of the view
that a master or judge has a discretion under Rule 30 to permit the use by a
plaintiff of an audio tape recorder on an independent medical examination, it
is in my opinion a discretion that should be exercised rarely and with
restraint, and only in circumstances where there is cogent evidence that the
use of an audio tape recording will advance the interests of justice….

[13]        
Rule 20-2 reads:

(3)        Unless a rule
otherwise provides, anything that is required or authorized by these Supreme
Court Civil Rules to be done by or invoked against a party under disability
must:

 (b)        be
invoked against the party by invoking the same against the party’s litigation
guardian.

[14]        
Rule 13-1 reads:

(19)      When making an order
under these Supreme Court Civil Rules, the court may impose terms and
conditions and give directions it considers will further the object of these
Supreme Court Civil Rules.

[15]        
On the question of inherent jurisdiction I think the characterization
found in R & J Siever Holdings Ltd. v. Moldenhauer 2008 BCCA 59,
is most apt:

In addition to the powers
conferred by the Rules of Court, the Supreme Court of British
Columbia, as a superior court of record, has inherent jurisdiction to regulate
its practice and procedures so as to prevent abuses of process and miscarriages
of justice: see I.H. Jacob, “The Inherent Jurisdiction of the Court” (1970) 23
Current Leg. Prob. 23 at 23-25. As the author said, at 25,

 The inherent
jurisdiction of the court may be exercised in any given case, notwithstanding
that there are Rules of Court governing the circumstances of such case. The
powers conferred by the Rules of Court are, generally speaking, additional to,
and not in substitution of, powers arising out of the inherent jurisdiction of
the court. The two heads of powers are generally cumulative, and not mutually
exclusive, so that in any given case, the court is able to proceed under either
or both heads of jurisdiction.

[16]        
The Rules do not, properly speaking, confer jurisdiction. To the extent
that they reflect a consensus of the Judiciary (and the Bar) as to the
presumptions, or expectations, or shifts in onus that will contribute to the
just and expedient conduct of litigation, they are useful in bringing
predictability and stability to civil procedure. To the extent that they do not
reflect such a consensus, they cannot be regarded as mandatory impediments to
doing the right thing in any particular case.

[17]        
The silence of Rule 7-6 on the question of ordering the litigation
guardian to attend an independent medical examination, does not, in and of
itself, preclude the making of such an order, if it otherwise makes sense to do
so in order to advance the speedy, just and inexpensive determination of the
proceeding on its merits.

[18]        
Whether such an order is appropriate requires the court to weigh the
plaintiff’s objection against the defendant’s rationale for the request.

[19]        
I should note that the problem arises almost entirely due to the ambiguity
created by Charlotte Bishop’s status as a litigation guardian. The confusion is
reflected in what has happened so far with Examinations for Discovery, where
both Charlotte Bishop, as litigation guardian, and Brandon Bishop, himself, have
been examined. This accords with the practice respecting infants, but not with
the practice respecting persons described in Rule 7-2(9) as “mentally
incompetent”. Rules 7-2(8) and (9) read as follows:

(8)        If a party to be
examined for discovery is an infant, the infant, his or her guardian and his or
her litigation guardian may be examined for discovery.

(9)        If a party to be
examined for discovery is a mentally incompetent person, his or her litigation
guardian and his or her committee may be examined for discovery, but the
mentally incompetent person must not be examined without leave of the court.

[20]        
The plaintiff’s objection to the attendance of the litigation guardian
is primarily that a conversation between the litigation guardian and the
examining physician creates a form of statement that is not controlled within
the process and that might well lead to conflict or confusion later, if the
guardian and the Doctor do not agree as to what was said.

[21]        
The defendant’s point is, primarily, that in a case where the defence is
guessing as to the mental status of the plaintiff, it would be prudent to have
the person who knows him best, and who is also the litigation guardian, available
to answer questions about his condition, especially where it is suggested that,
among the effects of the injuries suffered in the accident, is a lack of
insight or appreciation on Brandon Bishop’s part of the harm that has occurred.

[22]        
In Tsantilas (Litigation Guardian) v. Johnson, Cranbrook Registry
#18128 (20100211) Melnick, J. made a similar order in a case involving both
counsel who appear in this proceeding. In what I gather to be a case of an
under-age person, the court ordered the attendance of the litigation guardian
at an assessment:

[4}        Now, as far as who
should attend, certainly a family member should attend and I would direct that
the person who should attend should be the litigation guardian, Cathy
Tsantilas, unless, and I give liberty to apply, it is demonstrated to me
shortly before this takes place that the then current situation existing
between the mother and the daughter is such that that would be
counterproductive, both to the defence and to the plaintiff. In that case we
can then consider whether the examination should be adjourned to allow
circumstances to improve so that she may attend, or I may consider whether
someone else should attend rather than the litigation guardian and it go ahead
notwithstanding, but that is a decision left for a later day if counsel for the
plaintiff believes that circumstances are such that it would be not in the
overall interests of justice for the two of them to be together.

[5]        That said, I would
direct because Cathy Tsantilas is the person most closely connected with
Katerina Tsantilas, that whether they are together or not, that if Ms. Earle
(if that is the person who conducts the assessment) wishes to she may ask
questions of Cathy Tsantilas whether she is at the assessment or not, questions
relevant to how Katerina is able to function within the scope of what Ms.
Earle’s specialty is. In other words, it is not opening the door for her to ask
anything of Cathy Tsantilas, it is to ask questions to confirm or to get
information on how Katerina functions. That may be done over the telephone, for
all that goes, it does not strike me that she has to talk to her personally.
She can telephone her and say how does she do this, how does she manage with
that, and so on.

[23]        
I think that as long as the case continues to be conducted by Charlotte
Bishop as litigation guardian, the implication that, for reasons related to his
injuries Brandon Bishop is unable to conduct the litigation will remain, along
with the implication that talking to him will not yield the whole story. The
plaintiff’s concerns about possible confusion do not outweigh the defendant’s
interest in the appointed examiners getting accurate and complete information. Accordingly,
Charlotte Bishop, as litigation guardian, must attend and answer the questions
posed by the examiners as they require.

[24]        
The expense necessary to ensure Charlotte Bishop’s attendance will be
borne by the defendants.

  “T.M.
McEwan”______________________

 The
Honourable Mr. Justice McEwan