IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Parsons v. Mears, |
| 2011 BCSC 397 |
Date: 20110331
Docket: 09 5187
Registry:
Victoria
Between:
David Parsons
Plaintiff
And:
Trevor Mears and
Paul Kowalyk
Defendants
And:
Paul
Kowalyk
Third
Party
Before:
Master Bouck
Reasons for Judgment
Counsel for the Plaintiff: | J.A.S. Legh |
Counsel for the Defendant/Applicant Mears: | A.C. Breen |
Place and Date of Hearing: | Victoria, B.C. March 10, 2011 |
Place and Date of Judgment: | Victoria, B.C. March 31, 2011 |
Introduction
[1]
This is a personal injury action in which liability is denied. The
plaintiff seeks compensation for pain and suffering as well as past and
prospective income loss.
[2]
On March 10, 2011, the plaintiff was ordered to travel to the Lower
Mainland to attend both an independent medical examination and work capacity
evaluation. These are my reasons for making that order.
Facts
[3]
Mr. Parsons is a Victoria resident and operates a local tree service
business. A large man, the plaintiff stands 64 tall and weighs just over 300
pounds.
[4]
The subject matter of this action occurred on February 14, 2008.
According to the statement of claim, a truck operated by the plaintiff became
stuck in mud. The defendant Mears attempted to pull the truck out of the mud
using a cable and tractor. The tractor flipped and trapped the defendant Mears.
[5]
The plaintiff allegedly suffered various injuries when attempting to
rescue the defendant. The plaintiff complains of resulting pain and stiffness
in his lower back, right knee and left hip.
[6]
The statement of claim was issued in November 2009. Mr. Parsons was
examined for discovery on June 7, 2010. The action is set to proceed to trial
before a judge and jury in October 2011.
[7]
In the Fall of 2010, counsel for the defendant Mears took steps to
schedule an independent medical examination of the plaintiff with
Dr. J. Leith. Dr. Leith is an orthopaedic surgeon practicing in
Vancouver. The earliest available appointment offered by Dr. Leiths
office was March 24, 2011.
[8]
In early February 2010, defence counsel arranged a work capacity
evaluation of the plaintiff. That evaluation is to be performed on April 6,
2011 at the offices of Progressive Rehab Inc. in Burnaby, B.C.
[9]
Notice of these two appointments was provided to plaintiffs counsel on
February 2, 2011.
[10]
In subsequent communications, plaintiffs counsel took the position that
Mr. Parsons should not be required to travel to Vancouver for these
appointments. Mr. Legh requested that similar evaluations be arranged with
practitioners located in or near Victoria.
[11]
The defendant Mears initially agreed to try to find a Victoria area
professional to perform the work capacity evaluation but on the condition that
the plaintiff submit to an examination by Dr. Leith. The plaintiff remained
unwilling to make the trip to Vancouver. As a result, the defendant Mears took
no further steps to find a local evaluator.
[12]
Mr. Parsons was vacationing in Maui when this application was heard. In
an affidavit sworn prior to his departure, Mr. Parsons describes the anticipated
practical difficulties in attending the Vancouver appointments.
[13]
First, Mr. Parsons is only able to fly comfortably when provided with
handicapped seating. Such seating is not available on harbour to harbour
flights.
[14]
Second, Mr. Parsons will miss work due to the appointments. He can ill-afford
such time away being the sole operator of the tree service business.
[15]
Third, Mr. Parsons does not know Vancouver very well.
[16]
Notably, Mr. Parsons does not object to attending an examination by
Dr. Leith if such an examination takes place in Victoria.
[17]
The defendant Mears offered (and, indeed, proposed as a term of the
order) to pay for Mr. Parsons reasonable travel expenses including a hotel for
the evening before the appointments.
Discussion
[18]
The plaintiff consents to attending both an independent medical
examination and a work capacity evaluation. Mr. Parsons simply asked that
such appointments be scheduled to convenience him. Thus, the narrow issue for
determination on this application is the role that convenience plays when considering
an order under Rule 7-6 of the Supreme Court Civil Rules.
[19]
The following principles are applicable to this discussion:
a. The purpose of an independent
medical examination is to put the parties on a basis of equality. It is not for
the plaintiff to decide which doctor can examine him or her on behalf of the
defendant: Sinclair v. Underwood, 2002 BCSC 354 at para. 5;
b. Nonetheless, an independent
medical examination is an examination conducted by a person appointed by the court.
The convenience of the plaintiff is to be considered in appointing such a
person: Willis v. Voetmann, [1997] B.C.J. No. 2492 (S.C.) at para. 5;
c. Convenience to the plaintiff is
but one of several factors for the court to consider in exercising its
discretion under Rule 7-6: Adelson v. Clint (1993), 16 C.P.C.
(3d) 209 (B.C.S.C.) at para. 17; and
d. It may be appropriate for the
court to consider appointing a specialist other than the proposed examiner but
only where the plaintiff demonstrates, on a preponderance of evidence,
sufficient grounds to justify the court in concluding that its discretion should
not be exercised in favour of the appointment of the defendants nominee: Sinclair
v. Underwood and Adelson v. Clint, supra.
[20]
In terms of convenience to the plaintiff, I do not understand the
authorities to say that an independent medical examination should, or even might
preferably, take place at the examinees town or city of residence. Nor do I
understand those authorities to say that all things being equal, the defence
should be required to schedule an examination with a specialist practicing near
the examinees residence. For example, the court in Willis v. Voetmann, supra,
deemed it reasonable for a resident of Port McNeil to travel to Victoria or
Vancouver for an examination.
[21]
It is almost always an inconvenience to a plaintiff to attend an independent
medical examination. An employed person might miss a days pay; a homemaker
with young children might be required to pay for childcare. However, that
inconvenience can be remedied at trial by an award of damages for this
suggested loss.
[22]
On a very rare occasion, the court may order that the defendants
nominee travel to the plaintiffs town or city of residence to conduct the
independent examination or assessment. Such an order might be appropriate where
the examination or assessment is requested so late in the day that travel time
would unduly interfere with the plaintiffs trial preparation. The alternative
to such an order would be to deny the defendants entitlement to an examination
altogether: White v. Gait, 2003 BCSC 2023.
[23]
In this case, there is no objection to the qualifications of either
Dr. Leith or the proposed evaluator at Progressive Rehabilitation. The
plaintiff can obviously travel although the defendant may need to offer special
accommodations for that travel.
[24]
In short, convenience to the plaintiff is one of several factors for the
courts consideration on this application. It is not the predominant factor and
in itself does not provide justification for denying the defendants
entitlement to the order sought.
C.
P. Bouck
Master
C. P. Bouck