IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110930

Docket: M101488

Registry:
Vancouver

Between:

Ada
Theresa Soczynski

Plaintiff

And

Yi
Juan Cai, Sik H. Cheung and Highland Produce Ltd.

Defendants

Before:
Master McDiarmid

Reasons for Judgment

[1]            
On September 21, 2011, I issued my decision in this matter, cited at
2011 BCSC 1258, dismissing the defendant Cai’s application to compel the
plaintiff to attend at the offices of Dr. Simon Horlick and submit to a medical
examination. The medical examination was scheduled to take place on September
29, 2011; to prevent the imposition of a cancellation fee, I issued brief
written reasons dismissing the application, with more detailed reasons to
follow.

[2]            
In this tort action, the plaintiff claims damages for injuries she
sustained in a motor vehicle accident (“MVA”) on April 9, 2008. The plaintiff
also accessed “no fault” accident benefits following the MVA, pursuant to Part
7 of the Insurance (Vehicle) Regulation, B.C. Reg. 447/83 (“Part 7
benefits”).

[3]            
On August 9, 2011, defendants’ counsel wrote to plaintiff’s counsel as
follows:

We write to advise we have
arranged an appointment for a medical examination of your client with Dr. Simon
Horlick, Orthopaedic Surgeon.

[4]            
In response, plaintiff’s counsel succinctly set out the plaintiff’s
position by a letter written the next day, in which counsel wrote:

The IME you have arranged for
September 29, 2011 with Dr. Simon Horlick is a duplication as the Plaintiff has
already attended an IME with Dr. Paul Bishop.

[5]            
This was in reference to a medical examination carried out by Dr. Paul
Bishop on January 23 2009. Following that examination, Dr. Bishop wrote an
eleven-page report dated that day which set out his qualifications, a detailed
history of the plaintiff, physical examination of the plaintiff, and a review
of clinical records with comments about some of what was written in those
records by the plaintiff’s family physician. Dr. Bishop’s report concluded with
sections entitled “Impression” and “Discussion”. In this latter section, Dr.
Bishop responded to questions put to him by Wendy Mulligan, a claims
representative with the Insurance Corporation of British Columbia (“ICBC”) who
was responsible for handling the plaintiff’s claims arising from the April 9,
2008 MVA. His report is, in my view, more comprehensive than what would be
needed to deal solely with Part 7 issues. In my view, it is a report which could
assist the trier of fact in this (tort) action. The report sets out the
author’s qualifications and facts, and assumptions on which the opinion was
based. The way the report is written makes it obvious that Dr. Bishop was
personally (i.e. “primarily”) responsible for its content. The report was,
therefore, in compliance with the requirements of Rule 40A, predecessor to Rule
11-6(1).

[6]            
If Dr. Bishop’s report was solely for the purpose of an examination
pursuant to s. 99, there would be no need to request the expert’s
qualifications and experience. Ms. Mulligan understood, as at December 9, 2008,
that Dr. Bishop was an orthopaedic surgeon. The need for a statement containing
qualifications and experience is to ensure compliance with the requirements for
admissibility in accordance with Rule 40A.

[7]            
I recognize that no actions had been started as of January 2009. It is
conceivable that an action for Part 7 benefits could have been initiated, but
ICBC was paying Part 7 benefits. The probable reason for compliance with Rule
40A was to enable the report to be admissible in the anticipated tort action.

[8]            
The defendant argues that the examination scheduled by Ms. Mulligan and
resulting in the examination of the plaintiff by Dr. Bishop was not a first
examination under Rule 7-6(1), but rather was an examination which the
plaintiff was statutorily required to attend if she wanted to continue to
access Part 7 benefits. Section 99 of the Insurance (Vehicle) Regulation
states:

99 (1) An insured who makes a claim under this Part shall
allow a medical practitioner, dentist, physiotherapist or chiropractor selected
by the corporation, at the expense of the corporation, to examine the insured
as often as it requires.

(2) The corporation is not liable
to an insured who, to the prejudice of the corporation, fails to comply with
this section.

[9]            
At times there is a separation between a department of ICBC which is
handling Part 7 benefits, and a different department and other claims
representatives (adjusters) dealing with ICBC as the insurer of the defendant
in tort claims.

[10]        
In Vorasarn v. Manning, 30 B.C.L.R. (3d) 63, referred to by
Master Bolton in Longva v. Phan, 2007 BCSC 690, paras. 19-22, the Court
of Appeal based its decision on the fact that the ICBC rehabilitation representatives
were independent of the adjuster and counsel defending the tort claim, to the
point that there was an exclusive agreement that the rehabilitation
representative would not disclose the Part 7 report to the ICBC representatives
in the tort claim.

[11]        
This can be contrasted with the decision of the Supreme Court in Robertson
v. Grist, 2006 BCSC 1245. In Robertson, the adjuster who requested
the report was dealing with both Part 7 benefits and tort claims.

[12]        
The key guiding principle in the cases is set out by Mr. Justice Barrow
in Teichroab v. Poyner, 2008 BCSC 1130, where at para. 24, his Lordship
states:

Generally, the more closely an
examination performed under a contractual obligation or for purposes of a claim
for Part VII (now Part 7) benefits resembles an independent medical examination
under Rule 30(1) (now Rule 7-6(1)), the more relevant it will be to the
exercise of the discretion conferred by the Rule, and the less likely it may be
that an order under that Rule (referring to 7-1(2)) will be made. That is so
because the purpose of Rule 30 is, in part, to put the parties on an equal
footing in terms of their ability to explore the issues in the case … To the
extent an assessment prepared under a contract of insurance or in relation to a
claim for Part VII benefits puts a defendant on an equal footing, the need for
an assessment under Rule 30(1) will be mitigated.

[13]        
Some of the cases to which I was referred suggest that it is appropriate
to explore whether the examiner is asked to deal with issues that are confined
to a Part 7 claim or whether the issues relate to an actual or potential tort
claim. I do not find such an analysis useful. Many issues relate to both Part 7
and tort claims and cannot be easily separated out. For example, taking a history
of the accident is often necessary to enable the examiner to have some idea of
the magnitude and direction collision forces which resulted in the claimed
injury; this is so irrespective of whether the medical examiner is dealing with
a Part 7 claim or a tort claim. Similarly, a prognosis is often needed by the
claims examiner with respect to assessing Part 7 accident benefits (see for
example s. 88(8) of the Insurance (Vehicle) Regulation). This will necessarily
overlap with what will be needed to properly assess a plaintiff’s claim for
pain and suffering in a tort action.

[14]        
In this case, Ms. Mulligan has deposed that on July 31, 2008, the claim
file regarding the plaintiff’s claims [emphasis added] arising from the
MVA was transferred to her for handling. This obviously referenced both the
Part 7 and the tort claims. By the fall of 2008, Ms. Mulligan was aware that
the plaintiff had retained counsel with respect to both her tort claim and her
claim for benefits under Part 7.

[15]        
On December 9, 2008, Ms. Mulligan wrote to plaintiff’s counsel
confirming the appointment for the medical examination by Dr. Paul Bishop set
for January 27, 2009. The letter states:

This medical examination is pursuant to Section 99 of the Insurance
(Vehicle) Regulation…to assess your client’s continuing entitlement to:

·       
temporary total disability benefits under Section 80 of the Regulation
and/or,

·       
homemaker benefits under Section 84 of the Regulation
and/or,

·       
medical or rehabilitation benefits under Section 88 of the Regulation.

[16]        
In response, plaintiff’s counsel sent Ms. Mulligan an email on December
10, 2008, which contained the following:

I have your letter of December 9, 2008… The letter suggests
that the assessment is for Part VII issues only.

I take the view that the assessment is for the tort claim so
you are using your opportunity for a tort IME at this stage.

The client will attend on the
condition that you provide us with a copy of report if you order one from this
doctor. She will also require $35 conduct money. Ms. Mulligan did not respond
to this letter. She did not provide conduct money, but plaintiff’s counsel did
receive a copy of Dr. Bishop’s report.

[17]        
Ms. Mulligan deposed that she understood Dr. Bishop to be an orthopaedic
surgeon. It is deposed that she sought the Part 7 examination to determine
whether ICBC had an ongoing obligation to fund physiotherapy treatments for the
plaintiff. She deposed:

At no time did I consent to Mr.
Mussio’s position that the Part 7 medical examination was also a tort medical
examination, nor was any conduct money paid.

[18]        
Ms. Mulligan did not respond at all to the December 10, 2008 email.

[19]        
Jenny Chan, a paralegal working for counsel for the plaintiff, filed an
affidavit in which she has deposed that the plaintiff intends to rely on at
trial the expert opinions of Dr. Christopher Hunt, the plaintiff’s family
physician and Dr. John le Nobel, a specialist in physical medicine and
rehabilitation. Appended to an affidavit filed by the defendant, is what is
referred to as a “Medical Report” in her affidavit from Dr. Christopher Hunt
dated February 25, 2009, and a photocopy of a twelve-page fax comprising three
related letters from John le Nobel M.D., which set out his qualifications,
opinion, history, current symptoms, current treatments, post-accident
activities, physical examination, imaging review and record review.

[20]        
Plaintiff’s counsel has advised that the plaintiff will not be relying
on any orthopaedic specialists.

[21]        
In reviewing the facts in this case, and keeping in mind the main
principle to be looked at here, the principle of keeping the parties on an
equal footing, I find that in the circumstances of this case, and in
particular, the fact that the ICBC adjuster was handling both the Part 7 and tort
claims, and did not respond when she knew that the plaintiff’s position was
that the examination in front of Dr. Bishop was to deal with both those claims,
I find that the examination which took place at the behest of ICBC on January
27, 2009 by Dr. Paul Bishop constituted the first medical examination as
contemplated by Rule 7-6(1). The defendants want a further examination by
another medical practitioner who practices in the area of orthopaedics. The
plaintiff is not relying on any orthopaedic specialists. Keeping in mind the “level
playing field” principle, it is not appropriate to order a further examination
of the plaintiff by a medical practitioner having expertise in the area of
orthopaedics.

“Master R.W.
McDiarmid”

MASTER McDIARMID