IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110428

Docket: M092011

Registry:
Vancouver

Between:

Dragana Breberin

Plaintiff

And:

Jose Santos,
Christine Yap, Harish Bhardwaj,
Jarnail Khabra, and MacLure’s Cabs (1984) Ltd.

Defendants

Before:
The Honourable Mr. Justice Willcock

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT:  This is an application by the defendants in this motor
vehicle action for an order requiring the plaintiff, Dragana Breberin, to
attend at a medical examination at the office of Dr. Stephen Wiseman at
one o’clock on July 8, 2011, at St. Paul’s Hospital.  The purpose of that
attendance is for Dr. Wiseman to examine the plaintiff and prepare a
medical-legal report for the assistance of the defendants in addressing the
plaintiff’s claim at trial.  There is agreement between the parties that the defendants
are entitled to have the plaintiff attend at an independent medical examination
by a psychiatrist and there is no challenge to Dr. Wiseman’s specific
qualifications to perform that examination.  The issue before me is whether the
examination of the plaintiff, if ordered by the court, should take place where
the plaintiff resides, Edmonton, Alberta, or whether the defendants are
entitled to choose the place of the examination as well as the expert who will
conduct the independent medical examination.

[2]            
The evidence before me from the plaintiff is in the form of an affidavit
of a legal assistant employed by the office of plaintiff’s counsel.  Appended
to that affidavit is correspondence to the effect that counsel have been
advised that the plaintiff is unfit to travel.  There is appended to the
affidavit a letter dated March 10, 2011, from Dr. Sarah Toma, a GP with an
office in Edmonton.  Dr. Toma’s letter is very short and is addressed to
counsel, it says:

It is my understanding that you
are now the attorney representing the above-named patient in the matter of her
lawsuit related to the motor vehicle accident on November 5, 2007.  Please be advised that due to her condition, she is unable to travel (e.g., by airplane or
otherwise) at the present time or in the foreseeable future.

[3]            
Dr. Toma does not describe the nature of the medical problem that
prevents Ms. Breberin from travelling.

[4]            
The action arises out of a rear-end collision which has given rise to
numerous complaints on the part of the plaintiff which are primarily in the
nature of pain, which is said to have become chronic, in the temporomandibular
joint, the neck and back.  The plaintiff alleges that she suffered a mild
traumatic brain injury and has suffered impaired memory and concentration, fatigue
and impaired sleep.  There is nothing in the pleadings that describes an injury
that one would ordinarily expect to prevent an individual from being able to
travel.

[5]            
The argument made by the parties is, first, for the defendants, that the
defendants are entitled pursuant to Rule 7-6 to obtain an order requiring the
plaintiff to attend at a medical examination and that the test to be addressed
by the court in determining where and when the examination should take place is
fully and accurately described by Master Bouck in the decision of Parsons v.
Mears, 2011 BCSC 397.  In that case, the court says that the following
principles are applicable to the question whether a plaintiff should be
examined within British Columbia:

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

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

c.         Convenience
to the plaintiff is but one of several factors for the court to consider in
exercising its discretion under Rule 7-6:

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 defendant’s nominee

[6]            
I should note that Master Bouck cited authority in support of each of
those propositions.  Master Bouck continued in paragraph 20 of the Parsons
case as follows:

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
examinee’s 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 examinee’s residence. For
example, the court in Willis v. Voetmann, [1997] B.C.J. No. 2492
(S.C.), deemed it reasonable for a resident of Port McNeil to travel to
Victoria or Vancouver for an examination.

[7]            
The court went on at paragraph 22:

On a very rare occasion, the
court may order that the defendant’s nominee travel to the plaintiff’s 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 plaintiff’s
trial preparation. The alternative to such an order would be to deny the defendant’s
entitlement to an examination altogether

[8]            
For her part, the plaintiff says that the applicable Rule, 7-6, provides
that Rule 7-2(27) and (28) apply to examinations and inspections ordered
under the Rule.  The subsections of the Rule 7-2 referred to provide as
follows:

(27)      So far as is practicable, this
rule applies to a person residing outside British Columbia, and the court, on
application on notice to the person, may order the examination for discovery of
the person at a place and in the manner the court considers appropriate.

(28)      Unless
the court otherwise orders, if an order is made under subrule (27) for the
examination for discovery of a person,

(a) the order and the notice of
appointment may be served on, and

(b) the witness fees
referred to in subrule (13) may be paid to

the lawyer for the person.

[9]            
The plaintiff says, relying in part upon Rule 7-2 and the cases that
consider that Rule, that the onus should fall upon the defendants to establish
there is a basis for departing from the ordinary rule that is applicable in
cases of examination for discovery: that a person should be examined at a
location within a limited distance of the registry that is nearest to the place
where he resides.

[10]        
In support of the proposition that, plaintiffs who live out of the
province, should be examined for discovery at a place close to where they
reside, the plaintiff relies on the decision of Bronson v. Hewitt, 2008
BCSC 1269.  That case considers the specific provision in Rule 7-2 that
provides where examinations for discovery should take place.  There is a clear
direction in the Rules where the examination for discovery should take place
and a presumption that a person is entitled to be examined for discovery at a
location close to the place where they reside.  There is no such presumption in
relation to independent medical examinations, although convenience of the
plaintiff is certainly a factor to be considered.

[11]        
I note, as well, that Rule 7-6 imports the provisions of Rule 7-2(27)
and (28), but does not import the provisions of Rule 7-2(11) which describes
where examinations for discovery should take place.

[12]        
In my view, the logic of Master Bouck set out in the Parsons case
is applicable both in relation to independent medical examinations within and
outside British Columbia.  I am of the view that the plaintiff’s convenience
should be considered in determining where the independent medical examination
should take place.  I am also of the view, however, that the onus should fall
upon the plaintiff to show that there is a reason to depart from the general
rule that the defendants are entitled to choose the expert who should conduct
the independent medical examination on their behalf.  Here, the plaintiff should
be required to show some justification for requiring that the independent
medical examination should take place in Edmonton.

[13]        
As I noted when I referred to the affidavit filed by the plaintiff in
response to the application, there is very little evidence with respect to the
nature of the medical problem that will prevent the plaintiff from attending at
an independent medical examination.  The independent medical examination is
scheduled in the relatively distant future, on July 8, 2011.  There is, in my view, sufficient time for the plaintiff to prepare and make careful arrangements
to attend at that examination in July.  This is not a case where the
independent examination is set late in the day or in circumstances that prevent
the plaintiff from making appropriate arrangements so as to make it convenient
for her to attend.

[14]        
I am not satisfied on the evidence that the plaintiff has established
that there is any reason that justifies an order that she should be examined in
Edmonton as opposed to Vancouver.  There is, on the other hand, considerable
advantage to the parties in having the independent medical examination being
conducted in Vancouver in that the expert will be available to attend at trial
if required to do so and readily available for cross-examination.  Because the
case is set for trial in Vancouver, I am of the view that it is in the
interests of justice in this case to order that the independent medical
examination take place here.  I am not satisfied on the evidence there is any
reason to depart from the Rule that the defendant should be entitled to choose
an appropriate expert to conduct the examination so as to put the parties on an
equal footing.

[15]        
Therefore, I will grant the application brought by the defendants to
require the plaintiff to attend at the examination by Dr. Wiseman at the
time and place set out in the material, and costs will be costs in the cause
unless there is any matter that the parties wish to speak to in relation to
costs.

“Willcock
J.”