IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20111007

Docket: M21668

Registry: Chilliwack

Between:

Jayne Margaret Godfrey

Plaintiff

And:

Robbie William Black

Defendant

Before: Master Caldwell

Oral Reasons for
Judgment

In Chambers
October 7, 2011

[1]            
THE COURT: This is an application brought by
the defence for an order that the plaintiff attend a defence medical
examination which I believe is on Tuesday which is the next business day from
today. It relates to a dental examination by a Dr. Bruce Blasberg. The
trial of the matter is set for November 30th. The matter arises out of a motor
vehicle accident which occurred in May of 2009.

[2]            
I am told that the
pleadings, when they were issued, specifically identified among other things
injury to the temporomandibular joint ("TMJ"). That, it is said, and
I agree, put the defence on specific notice that there was an issue relating to
the jaw and the TMJ.

[3]            
In addition to
that, I note that there was an examination for discovery in June of this year
where a specific question was asked and a response was given as to the
plaintiff’s attendance upon a medical person with respect to her TMJ pain.

[4]            
Subsequent to that
discovery, but in accordance with the required 84-day notice period in time for
the meeting of that deadline, the plaintiff tendered a report of Dr. Mehta
with respect to a dental examination and with respect to his opinion of the TMJ
issue. There was an addendum to that report which was also prepared by Dr. Mehta
and delivered to defence counsel in keeping with the Rules.

[5]            
That occurred I
believe back in early September. On October 5th, some time after receiving
those reports, defence counsel contacted plaintiff’s counsel’s office indicating
that they had scheduled an independent medical examination or defence medical
examination with a dental surgeon of their choosing for October 11th, only some
six days following that phone call. Those arrangements were made something in
the order of a year after the original pleadings were filed identifying TMJ
difficulties and several months after the discovery which confirmed TMJ issues.

[6]            
I note a few
things:  firstly, this is a fast-track litigation which was put into 15-1 I
believe by the defence although I stand to be corrected on that but a comment
was made by counsel to that effect in the submissions. There has been an early
trial date arranged.

[7]            
There is one
medical expert report available on the TMJ issue and I am told that the doctor
who tendered that report has made the required statements or included the
required statements recognizing his duty to the Court. I am also mindful of the
concept of proportionality under the Rules in terms of involving other experts.
I am also aware that in this case by consent the plaintiff attended at another
form of independent medical examination at the request of defence counsel. It
appears that no report has resulted from that examination; at least that is the
comment that was made in submissions by counsel. It appears the plaintiff has
cooperated.

[8]            
The difficulty is
that she indicates that she is a hospice worker working with the families of
terminal patients and that she has unavoidable appointments relating to that
employment on Tuesday and can simply not get out of those appointments on such
short notice. Defence counsel’s position is that that simply does not matter. They
have made an appointment and they require her attendance.

[9]            
There is no
evidence before me to indicate why this particular dental expert believes it
necessary for him to do a physical examination of the patient. In fact, the
instruction letter from counsel specifically asks for among other things a
critique of the report of the first dentist. Many of those bullets which appear
in the letter which I will not make further reference to appear able to be done
on the basis of a criticism of methodology or findings as opposed to requiring
an independent examination of the person of the plaintiff.

[10]        
I also note that
by way of an apparent phone call October 4th or 5th, this appointment was
obtained within six days. It is now indicated that there are no further
appointments until well beyond the trial date, possibly into next year.

[11]        
There were
enquiries made from the bench as to other attempts to locate other experts and
counsel has indicated that he has a text from his office indicating that they
have attempted to locate four or five other experts, none of whom are available
to perform this examination.

[12]        
In further
complication, the expert which they unilaterally chose without consultation
only works Tuesdays which may be a reason why there are no replacement dates
available.

[13]        
I have been
referred to several cases, but the one which I find to be most helpful is the
case of Wright v. Brauer, 2010 BCSC 1282 a decision of Mr. Justice
Savage in similar circumstances where he was dealing with a trial date in the
near future and an examination such as this where there was no medical evidence
as to why a physical examination was necessary in order to provide a truly
rebuttal or critical report. In that decision, in dealing with the new Rules, Mr. Justice
Savage says at para. 18:

[18]      However, at this point
in time in the action, the defendants are limited to what Mr. Justice
Williamson referred to in Kelly, supra, as “truly responsive rebuttal
evidence”. The application must be considered in that light; the question on
this application is not one of notice, but whether the examination should be
ordered to enable the defendant to file responsive evidence. The authorizing
Rule,7-6(1) uses the term “may”.

[14]        
Carrying on in
subsequent paragraphs, the learned judge says:

[19]      In Kroll v. Eli Lilly Canada Inc. (1995), 5
B.C.L.R. (3d) 7, Sanders J., as she then was, noted that “true response
evidence, does not permit fresh opinion evidence to masquerade as answer to the
other side’s reports”.

[20]      In C.N. Railway v. H.M.T.Q. in Right of Canada,
2002 BCSC 1669, Henderson J. considered the admissibility of “reply reports”
holding that only the portions of the reports that provided a critical analysis
of the methodology of the opposing expert were admissible as responsive
evidence. The portions of the reports describing the authors’ own opinions on
the matters in issue were not admitted.

[21]      In this case [and that is the Wright case in
Mr. Justice Savage’s instance], the defendants do not explain why an
examination is required in these circumstances, other than a statement by a
legal assistant that counsel says such is “necessary to properly defend this
action and to respond to the reports of Dr. Weckworth and Dr. O’Connor”.
Master McCallum in White v. Gait, 2003 BCSC 2023 declined to order an
examination where it had not been shown why such was required to produce a
responsive report.

[22]      In my opinion, the bare
assertion reported to a legal assistant in this case is insufficient to support
an order under Rule 7-6(1) that the plaintiff attend the examination, when the
defendants are limited to providing response reports under Rule 11-6(4).

[15]        
In my view, the
same reasoning applies in this case.

[16]        
There is nothing
in the Wright, supra, decision to even indicate that it is a 15-1 Fast
Track piece of litigation.

[17]        
We are
anticipating here that the trial will be held in a limited number of days and
involves damages of less than $100,000. We have already an expert who has
apparently given the proper undertakings as to his duties.

[18]        
This application
comes late in the day, a year after the defence was well aware that TMJ was an
issue that should be looked into. Had they wished to get a full report, they
were well able to make that application or the request earlier. I am not
satisfied on the material that there is a basis for me to infer from the
submissions of counsel or the material filed that an independent medical
examination of the person of the plaintiff is required in order for this
dentist to provide a truly rebuttal report.

[19]        
In those
circumstances, the application that the plaintiff attend at the dental surgeon
as requested is dismissed.

[20]        
Costs are to the
plaintiff in any event of the cause.

“Master Caldwell”