IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100408

Docket: M56270

Registry:
Nanaimo

Between:

Wanda Lee Green

Plaintiff

And:

Robert James
Gregory and

Jamie Leigh
Holland

Defendants

And:

Insurance Corporation
of British Columbia

Third
Party

Before:
Master Keighley

Oral Ruling on Application

In
Chambers

[1]            
THE COURT: This is an application by the third party, Insurance
Corporation of British Columbia, to have the plaintiff, Wanda Lee Green, attend
a medical examination with Dr. Piper, an orthopaedic surgeon, on April 19,
2010, at 2:45 p.m. at Dr. Piper’s office at 102 – 65 Richmond Street, New
Westminster, British Columbia. The third party also seeks an order that the
third party pay the plaintiff’s reasonable travel expenses to attend the
examination with Dr. Piper, and indeed, as will be seen, agreements have been
reached in relation to this aspect of the motion and other issues as well. The
third party also asks for the costs of the application.

[2]            
This action was commenced on April 17, 2009. ICBC filed a third party
statement of defence on the 21st of August of last year. An examination for
discovery of the plaintiff was conducted on February 3rd of this year. The
plaintiff was examined for discovery on that date, but it did not complete. No
trial date has been set.

[3]            
The accident which gives rise to this cause of action arose from an
incident in which the plaintiff was struck on a marked crosswalk in the city of
Nanaimo on January 17, 2008. She was apparently thrown up onto the vehicle
which struck her and her head struck the windshield. She will indicate that she
has an incomplete recollection of the circumstances of the accident. She has
been told that she was thrown some distance and came to rest underneath a
parked vehicle. She alleges that she continues to experience dizziness, poor
concentration, poor memory, anxiety, and headaches.

[4]            
The plaintiff agrees to attending the examination with Dr. Piper, but
seeks to impose certain conditions upon her attendance, certain of which have
been agreed to by counsel, certain of which have not. The first, which has been
agreed to, is that the third party will pay her reasonable expenses to attend
the examination, as well as the expenses of a person of her choice to accompany
her. The third party has also agreed to pay for the costs of the ferry fare for
two people to and return from the examination, and also to provide some stipend
for meals.

[5]            
The plaintiff says at paragraph 8 of her affidavit of February 25, 2010:

I have not driven since the
collision for reasons of anxiety and dizziness. Therefore, I need the travel
and accommodation as set out in point 1 of that letter. Also, I do not have a
vehicle. Given my level of anxiety and the problems with dizziness, I need
someone to accompany me from Nanaimo to New Westminster for this appointment.

Hence the agreement which has been
reached.

[6]            
A second condition which the plaintiff sought to impose was that the
third party would be responsible for booking and paying for hotel accommodation
for herself and the person accompanying her. In light of the time set for the
assessment, mid-afternoon, that condition is no longer relevant and is
withdrawn, I gather.

[7]            
As a third condition, the plaintiff sought an order that, regardless of
whether the third party chose to order a report from Dr. Piper and provide a
copy to the solicitor for the plaintiff, that the third party would forward a
copy of Dr. Piper’s notes that record the history given to him by the plaintiff
and his observations and findings from the examination. The third party is
agreeable to the terms of that concern, but the plaintiff goes on to ask that
those notes be provided within two weeks of the date of the defence medical
examination.

[8]            
Mr. Klear suggests that it be more appropriate to require delivery of
those notes either "within a reasonable time" or within 30 days. There
is no matter of urgency. There is no trial date yet set. The third party, of
course, has no control over the administration of Dr. Piper’s practice, and it
would be unfair and perhaps counterproductive to place any set provision with
respect to the time by which these materials must be presented. I am going to
order that those notes be provided within a reasonable time of the defence
medical examination but forthwith upon receipt of those materials from Dr.
Piper.

[9]            
I am going to skip over the next condition, which deals with the
plaintiff being accompanied not only to but during the examination, and deal
with some other matters which will, I think, take somewhat less time.

[10]        
As a further condition of her attendance, the plaintiff seeks an order
that she be seen within 30 minutes of the time scheduled for the examination,
absent some emergency. I am not quite sure what concern the plaintiff is
attempting to address here, as she is travelling by ferry to the mainland,
having committed the day for the examination. It may well be that Dr. Piper is
held up by a prior examination and is not able to start the examination
precisely on time. In the event that he is unable to begin the examination with
sufficient time to conclude it, I would assume that he would not begin it. If
he is unable to conclude it, then that is the third party’s concern. The
plaintiff will have performed her obligations by attending for the examination.
I do not believe and do not find that a condition in those terms is appropriate,
and I decline to make one.

[11]        
The plaintiff also seeks an order that there be no invasive tests, no
x-rays, or other imaging taken or arranged. The third party’s concern with this
condition is that there is significant ambiguity in it. There is also the
concern that any order that I make might unduly and inappropriately limit Dr.
Piper’s examination of the plaintiff. I will order that Dr. Piper not conduct
or arrange for any medical imaging test during the course of the examination.

[12]        
The plaintiff seeks a further condition that neither Dr. Piper or anyone
in his office will attempt to have the plaintiff sign up or fill out any
releases, waivers, consents, or other documents. Now, it seems to me that Dr.
Piper will likely have forms within his office which he will complete during
the course of the examination, and I certainly would not want to inhibit his
ability to do so. I am going to simply direct that neither Dr. Piper nor anyone
in his office will have the plaintiff fill out any forms of any sort or sign
any forms or documents during the course of the examination.

[13]        
That brings me to the last condition, the one which I deferred, and that
is the condition sought that the plaintiff be at liberty to be accompanied by a
person of her choice during the course of the medical examination.  She
proposes that her companion will not participate or interfere with the
examination but will be entitled to make notes of what occurs or what is said. Now,
the basis for this condition in the evidence is found at paragraph 10 of Ms.
Green’s affidavit sworn February 25, 2010. At paragraph 10, she says [as read
in]:

10.       Due to my poor
concentration, poor memory, and headaches, I will have problems remembering
what happened or what was said at the defence medical examination. Therefore, I
wish the person who accompanies me to be able to make notes of what occurs or
is said. That way, I will have some record in order to discuss this with my lawyer.

[14]        
Now, that is the evidentiary basis for what is sometimes seen as an
application to allow a party to take a recording device into the examination
with them. There have been numerous decisions in relation to that issue, and I
have made one myself; at least one. There are some analogies between the
audiotape scenario, and there are some significant differences. On the one
hand, as Mr. Klear points out, an auditory tape is, subject to the limitations
of technology, presumed to be accurate, whereas the note-taking of the person
accompanying the plaintiff may not be. It may also be that the presence of
another person, even a passive person, may be intrusive in terms of the conduct
of the examination, whereas a tape recorder sitting on a table is perhaps less
so.

[15]        
To the extent that analogies can be drawn, counsel have put before me
the case of Wong v. Wong, a decision of the British Columbia Court of
Appeal reported as 2006 BCCA 540. The reasons for judgment in that case were crafted
by the Honourable Chief Justice Finch. At paragraph 32 of that decision, he
summarizes the cases in British Columbia where audiotape recording has been
allowed in terms of what the court in those cases found to be important or
significant. The first consideration was the absence of evidence that an
audiotape recording would inhibit or impair the examination. Well, here I have
no evidence before me from Dr. Piper or from any other source which would
indicate that the attendance of a third party, whom counsel have referred to as
a chaperone, would inhibit or impair the examination.

[16]        
The second consideration was evidence that the plaintiff had a poor
memory or was forgetful. The plaintiff has deposed to that effect.

[17]        
Thirdly, the absence of evidence that the examining doctor objected to
the use of a tape recorder. Again, there is no evidence in relation to that
point before me from Dr. Piper or anyone in his office in that regard.

[18]        
Fourthly, evidence that the plaintiff had difficulty communicating and
understanding, perhaps related to a lack of fluency in English or the language
of the examining doctor. That is not strictly an issue in this case, although
there may be some difficulty in relaying to her counsel after the examination,
without some note of it, precise comments that the doctor had made utilizing
medical terminology or things of that nature.

[19]        
Fifthly, the likelihood that a tape recording might lead to settlement
short of trial. Well, I have nothing before me to suggest either way that that
might be an issue.

[20]        
Sixthly, the likelihood that an audio tape recording would contribute to
the fairness of the trial. This goes back, I suppose, to the plaintiff’s
rationale for the chaperone in the first place, that she hopes that
deficiencies in her memory and, although it is not stated, one would assume her
inability to accurately note take while responding to the doctor’s questions
and participating in the examination would be remedied by the chaperone. In
that sense, I suppose the attendance of the chaperone might be said to contribute
to the fairness of the trial.

[21]        
I am satisfied, in the circumstances, that it would be non-invasive and
appropriate for the plaintiff to be accompanied by a chaperone during the
course of her examination by Dr. Piper. It is of vital importance that the chaperone
remain passive and not participate in the examination in any way or
communicate, other than in the exchange of greetings with Dr. Piper, during the
course of the examination.

[22]        
Now, does that just leave costs, gentlemen?

[23]        
MR. DE TURBERVILLE:  Yes.

[24]        
MR. KLEAR:  Before you go on, Your Honour, just a couple of points of
clarification on, first of all, the costs of her attendance. We’ve asked that
she provide copies of any receipts or invoices for them.

[25]        
THE COURT:  All right. But there was an agreed upon amount of four
hundred and fourteen for something. What was that?

[26]        
MR. KLEAR:  Well, there was a list of, you know, meals and whatever, but
that was based upon her staying overnight. It was four hundred and forty —

[27]        
MR. DE TURBERVILLE:  That wasn’t based on her staying overnight, it was
just the taxi, and the ferry fare, and meals.

[28]        
MR. KLEAR:  Well, it shouldn’t be too onerous on her to provide us with
an accounting with receipts.

[29]        
MR. DE TURBERVILLE:  Oh, we’ve got no — no difficulty at all with that.

[30]        
THE COURT:  Okay, that can be included in the order.

[31]        
MR. KLEAR:  And next, Your Honour, for the — the chaperone to be in
attendance is — we don’t know the identity of this person. Is this going to be
a friend, or is this my friend’s secretary, or is this a lawyer from his
office?  We don’t know. The identity has not been disclosed to us.

[32]        
THE COURT:  Does it matter?

[33]        
MR. KLEAR:  Well, if it’s truly going to be a friend, which is what she
deposes to, I think Dr. Piper should be permitted to know who that person is.

[34]        
THE COURT:  Does your client — can you tell me — without —

[35]        
MR. DE TURBERVILLE:  Well, I don’t —

[36]        
THE COURT:  — telling me who it is, does your — does your client know
who it is going to be?

[37]        
MR. DE TURBERVILLE:  No, I’m not positive she knows right at this point.
And if — even if I knew the category, I wouldn’t be able to tell you the name.
So I don’t have the name off the top of my head in terms of if it’s a boyfriend
or a friend or whatever it might be. I don’t — I actually don’t know the name.
So —

[38]        
THE COURT:  Would it be unduly onerous to require the plaintiff to allow
you to divulge to counsel, perhaps a week prior to the examination, who the
person is?

[39]        
MR. DE TURBERVILLE:  No difficulty with that, subject to there being
some last-minute change where that person’s unavailable and she has to take
somebody else. But I certainly have no difficulty finding out who it will
likely be and — so that if that name wants to be passed on through my friend
to Dr. Piper, he’ll know who is attending.

[40]        
THE COURT:  Is that okay, Mr. Klear?

[41]        
MR. KLEAR:  Well, what if it turns out to be my friend?

[42]        
MR. DE TURBERVILLE:  I can tell you I won’t be going.

[43]        
THE COURT:  That is a pretty expensive chaperone.

[44]        
MR. KLEAR:  It may be worth the money. It’s those types of concerns. I
thought that it was going to be her boyfriend. I examined her for discovery. She
lives with a fellow. That’s who I envisioned it would be. But I’ve asked a
couple of times, and I appreciate I asked my friend for the first time today,
and I thought maybe he’d find out over lunch, but he hasn’t. So that causes me
some concern.

[45]        
THE COURT:  But your main — I am not trying to limit you, but your main
concern is that it not be your friend or his paralegal or someone who —

[46]        
MR. KLEAR:  Or a friend of hers who is a doctor, or a nurse.

[47]        
THE COURT:  Okay. Well, it gives you — is your client prepared to live
with a stipulation that the name of that person be given within seven days
prior to the examination?

[48]        
MR. DE TURBERVILLE:  Yes, we’ll do our best to get that. I can advise
you that I have no plans for anybody, myself or somebody from my office, to
attend, so ‑‑

[49]        
THE COURT:  I think it is fair for Dr. Piper to at least have an
opportunity to see if it is someone who he would object to having, like maybe a
former patient or —

[50]        
MR. DE TURBERVILLE:  Certainly.

[51]        
THE COURT:  — someone with whom he has —

[52]        
MR. DE TURBERVILLE:  I’ll — I’ll provide the name to my friend as soon
as I can obtain from my client who she’s going to arrange to have go — go with
her.

[53]        
THE COURT:  Seven days prior.

[54]        
MR. KLEAR:  May I — may I suggest that — that what he provide is the
name and the relationship between that person and the plaintiff?

[55]        
MR. DE TURBERVILLE:  Well, no — Your Honour, you know, I think we’re
being agreeable here, but I really actually think that none of this is of any
— it’s not for the defendant or the third party to start putting restrictions
on who the person is, the relationship. She’s entitled to have somebody there
that she feels comfortable with attend with her at the examination.

[56]        
THE COURT:  I do not have any concerns about the third party and who
attends at all. My concern is about Dr. Piper.

[57]        
MR. DE TURBERVILLE:  Yes.

[58]        
THE COURT:  With him having some difficulty with the identity of the
person who is going to be there. It might be somebody who he has had a great
steaming row with at some time or other.

[59]        
MR. DE TURBERVILLE:  Okay. I will get the name and, as I say, subject to
there not being some last-minute thing where I’ve provided a name and that
person, you know, has some change in their plan and they can’t go and now her
boyfriend goes, or something like that. But I will find out who she anticipates
will go with her and I’ll provide that name. And if there is a change, and I’m
not anticipating there would be, then I’ll let my friend know as soon as I can
after that. But that’s who I anticipate is going to be showing up, something
like — along those lines.

[60]        
THE COURT:  Well, I think, in fairness, she has to commit. So what I am
going to order is that she is entitled to be accompanied by another person. The
name of that person will be provided to counsel for the third party at least
seven days prior to the examination. Full stop.

[61]        
MR. DE TURBERVILLE:  All right.

[62]        
MR. KLEAR:  Now, lastly, Your Honour, you’ve permitted the person to be
there during the examination. Is this person permitted to take notes?

[63]        
THE COURT:  Oh, yes. I am sorry, I did not specifically mention that,
but I — yes.

[64]        
MR. KLEAR:  And then, Your Honour —

[65]        
THE COURT:  My only concern was that they remain completely passive and
not participate in any way.

[66]        
MR. KLEAR:  Well, I’m asking you to consider this, then. In order to put
the parties on equal footing, Dr. Piper has to provide his notes, I’m
requesting that this person also be required to provide their notes to counsel
for the third party.

[67]        
THE COURT:  Is that a solicitor’s brief issue?

[68]        
MR. DE TURBERVILLE:  I think it may very well be, yes.

[69]        
MR. KLEAR:  Well, is this person attending as a chaperone to assist this
lady or is she — or is this person attending as an agent of counsel for the
plaintiff?  This is a discretionary order, Your Honour —

[70]        
THE COURT:  Yes.

[71]        
MR. KLEAR:  — and Dr. Piper, his notes are potentially litigation
[inaudible/overlapping speakers] —

[72]        
THE COURT:  Are there any —

[73]        
MR. KLEAR:  — as well.

[74]        
THE COURT:  — authorities — I cannot recall at this point whether I
have seen any or not, but are there any authorities regarding a party’s
obligation to disclose the tape recording from the medical examination?

[75]        
MR. KLEAR:  I haven’t looked at the issue and it’s not discussed in —
in Wong.

[76]        
THE COURT:  See, if the plaintiff was taking notes, to the extent that
she was able during the course of her examination, those would form part of the
solicitor’s brief, I would think.

[77]        
MR. KLEAR:  Yes, but this is not a party to the litigation.

[78]        
THE COURT:  But what if you have the notes taken by a private
investigator in connection with inquiries made in relation to the preparation
of the plaintiff’s case?

[79]        
MR. KLEAR:  Instructed by counsel, that would be privileged.

[80]        
THE COURT:  Yes.

[81]        
MR. KLEAR:  That’s litigation privilege.

[82]        
THE COURT:  Yes.

[83]        
MR. KLEAR:  In this case, is this person instructed by counsel for the
plaintiff in terms of what to record, what to watch out for, or is this person
going to, as Ms. Green says, because of her memory problems, record discussions
and what is said?

[84]        
THE COURT:  No, but if the plaintiff had taken these notes herself, if
she was able to take them herself, surely they would not be compellable.

[85]        
MR. KLEAR:  I suspect not.

[86]        
THE COURT:  So the fact that she has somebody sitting next to her doing
what she is, she says, unable to do or requires assistance in doing, does that
change the character of the notes?

[87]        
MR. KLEAR:  Well, just backing up a bit, she doesn’t say she’s incapable
of taking notes.

[88]        
THE COURT:  No, she does not, but she says — there is that one
paragraph to which I referred.

[89]        
MR. KLEAR:  Yes. She has concentration and memory problems, she states.

[90]        
THE COURT:  She wants to have a record in order to be able to discuss
the examination —

[91]        
MR. KLEAR:  Yes.

[92]        
THE COURT:  — with her counsel.

[93]        
MR. KLEAR:  But there’s nothing — nothing preventing both of them from
— from recording it as well.

[94]        
THE COURT:  Both of whom?

[95]        
MR. KLEAR:  Sorry, the — the chaperone and the plaintiff. They can both
be taking notes during the — the examination.

[96]        
THE COURT:  Well, anyway, let me hear what your friend has to say.

[97]        
MR. DE TURBERVILLE:  Well, I mean, the reason that this is being done is
because she can’t, as many plaintiffs do when they leave, sit down and try and
remember what it is the — they said to the doctor and the doctor said to them
about their — their condition, and what parts were examined. That’s the reason
why Your Honour has allowed this person in there with her to take notes, because
she can’t do it. So it goes back to Your Honour’s point that this is simply a
substitute for that. And so if she was able to go outside the doctor’s office,
find a seat at a nearby coffee store, and write it all out, which she can’t do
because she doesn’t have the memory to remember what happened at the beginning
of the examination, clearly those notes would not be producible. They would be
part of the — of the litigation brief, and this is no different from that.

[98]        
THE COURT:  And these notes, if they were to be of any use, I would
think, other than just instructing counsel as to what went on in the
examination, would be used to impeach Dr. Piper in the event that he gets on
the stand and says something inconsistent with them —

[99]        
MR. DE TURBERVILLE:  That’s correct.

[100]     THE
COURT:  — correct?

[101]     MR. DE
TURBERVILLE:  Yes.

[102]     THE
COURT:  But otherwise, they are not going to form part of the record.

[103]     MR. DE
TURBERVILLE:  No.

[104]     THE
COURT:  No, I am not going to order the plaintiff to produce those notes, Mr.
Klear.

[105]     So about
costs.

[106]     MR. DE
TURBERVILLE:  Well, we had sought costs. In my submission, we’ve been
substantially successful in this matter and we should have our costs —

[107]     THE
COURT:  Is liability an issue or has the third party got a breach issue?

[108]     MR.
KLEAR:  It’s a breach issue. It’s an unusual case. The defendant was uninsured
and didn’t have a driver’s licence, and there’s an issue as to whether he was
impaired.

[109]     MR. DE
TURBERVILLE:  And left the scene.

[110]     MR.
KLEAR:  Oh, and he left the scene of the accident. The — it’s a — it’s a
different kind of situation.

[111]     THE
COURT:  Well, the plaintiff was on the hood of the car and he was trying to
give her a ride home.

[112]     MR.
KLEAR:  Well, he did try and help her up after. It’s a bizarre accident. But,
Your Honour, in my submission, there’s been some divided success. Costs in the
cause is what I’m proposing.

[113]    
THE COURT:  Yes, I agree, costs in the cause.

“Master
Keighley”