IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20130807

Docket: M92117

Registry:
Kelowna

Between:

Francis Scott
Jackson, Your Way Irrigation Inc.
and Your Way Landscaping Ltd.

Plaintiffs

And

Mark Yusishen

Defendant

Before:
The Honourable Mr. Justice Barrow

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: This is an application brought by the defendant for
an order compelling the plaintiff to attend for a functional capacity
evaluation to be carried out over the course of two days on August 12 and 13, 2013.

[2]            
The asserted purpose of requiring the plaintiff’s attendance to undergo
the evaluation is to allow the occupational therapist to prepare a report
responding to a functional capacity evaluation and cost of care report prepared
by an expert the plaintiff has retained.

Background

[3]            
This action is for damages for personal injury sustained in a motor
vehicle accident on November 18, 2009. The case is scheduled to proceed before
a judge and jury beginning on October 7, 2013. The trial is expected to last 12
days.

[4]            
The collision was a relatively minor one and gave rise to relatively
minor soft tissue injuries to the plaintiff’s back. About six months after the
accident, the plaintiff contracted a cold, during which he coughed. When he
coughed, he immediately felt significant back pain. He was examined by various
professionals, and it was determined that he sustained a hernia and fractures
to one or more of his ribs. He has since undergone three separate operations in
an effort to repair the hernia and the rib fractures. One of the central issues
at trial will be whether the injuries sustained when he coughed are factually
and legally causally linked to the injuries he sustained in the motor vehicle
accident.

[5]            
At the time of the accident, the plaintiff owned a landscaping and
irrigation business. A significant component of his claim rests on his
contention that he is now unable to work in his chosen field. In support of his
claim, he has served a number of reports from the two thoracic surgeons who
performed the operations that he underwent between November 2010 and December
2012. The most recent of those reports was served on May 21, 2013.

[6]            
The 84th day before trial and the last day for service of expert reports
under Rule 11‑6(3) was July 15, 2013. The defendant served four expert
reports on the plaintiff’s counsel that day. One of those reports was from an
engineer, another was from a radiologist, and the others were from two of the plaintiff’s
treating physicians. On July 11, 2013, the defendant served an economist’s
report.

[7]            
In the spring of 2013, the plaintiff had arranged to have a functional
capacity evaluation completed by Carole Kennedy, an occupational therapist in
Kelowna. He was to undergo the physical aspects of that evaluation on June 10
and 11, 2013. Ms. Kennedy’s report dated June 27, 2013, was served on the
defendant on July 11, 2013.

[8]            
In January 2012, the defendant sought the plaintiff’s agreement to
attend at a medical examination to be conducted by Dr. David McDougall. The
plaintiff agreed and Dr. McDougall carried out that examination. Dr. McDougall
is a general practitioner who describes himself as a "consultant in
occupational medicine". In his curriculum vitae, he explains that he works
for Viewpoint Medical Services, a company that provides expert medical opinion
to the legal profession. His CV also records that he has been qualified as an
expert witness in "occupational medicine, disability evaluation and
fitness to work". Although the plaintiff was examined by Dr. McDougall
in January 2012, no report arising from that examination has been served on
plaintiff’s counsel.

[9]            
The plaintiff was initially scheduled to have a functional capacity
evaluation by Ms. Kennedy in February 2013. It was postponed because the
plaintiff was still recovering from his most recent surgery. The plaintiff
rescheduled the evaluation for June 10th and 11th, but he may not have informed
the defendant of that fact.

[10]        
By letter dated April 29, 2013, counsel for the defendant advised that
they wished to have a functional capacity evaluation carried out on the
plaintiff and had made arrangements for the plaintiff to attend on June 25 and
26, 2013, before an occupational therapist selected by defendant’s counsel. On
May 24, 2013, counsel for the plaintiff agreed that his client would attend and
participate in that evaluation.

[11]        
On June 4, 2013, having heard nothing further from the plaintiff
subsequent to the cancellation of the February functional capacity evaluation,
the defendant cancelled the June 25 ‑ 26, 2013 functional capacity
evaluation it had arranged. As soon as the plaintiff received notice of that
cancellation, counsel wrote to counsel for the defendant and advised that they
planned to continue with their functional capacity evaluation scheduled for the
following week.

[12]        
After the plaintiff served the functional capacity evaluation report on
defendant’s counsel, the defendant’s counsel wrote to the plaintiff on July 16,
2013, asking the plaintiff’s cooperation in attending for a functional capacity
evaluation on August 12 and 13, 2013. The plaintiff refused, in part because
the time limited for an expert’s report had expired, and while the defendant was
at liberty to obtain a responsive report, the plaintiff was not convinced that a
direct examination of the plaintiff was necessary in order for such a report to
be prepared. This application is the result.

The Position of the Parties

[13]        
The defendant argues that if the order is granted, they will have a
report in advance of the 42‑day cut‑off for serving responsive reports
as provided for in Rule 11‑6(4). If the issue is whether that report
is in fact a responsive report, as opposed to a fresh or new opinion, that is a
matter for the trial judge to decide.

[14]        
The plaintiff argues that the issue is not whether the defendant is
entitled to obtain and serve a responsive report. Clearly he is. The issue is,
rather, whether the defendant has met the evidentiary burden it has to warrant
an order obliging the plaintiff to attend and submit to an independent medical
examination.

Analysis

[15]        
There are three rules engaged by this application. The Rules of Court
distinguish between new or fresh expert reports and responsive reports. Rule 11‑6(3)
provides that, unless the court otherwise orders, expert reports other than
responsive reports must be served on all parties of record at least 84 days
before the scheduled trial date.

[16]        
Rule 11‑6(4) deals with responsive reports and provides that such
reports must be served on every party of record at least 42 days before the
trial date.

[17]        
The third rule engaged by this application is Rule 7‑6, which
provides that the court may order a person submit to an examination by a
medical practitioner or another appropriately qualified person. An order under
Rule 7‑6(1) is discretionary. While there are a host of factors that
should be considered when exercising the discretion conferred by that rule, one
of the factors might broadly be taken to be whether the examination sought will
advance the litigation, in the sense of potentially yielding relevant evidence
touching on a material issue.

[18]        
In the context of a personal injury action, meeting that evidentiary
threshold where the object of the examination is the eventual production of a
fresh or new expert report will not usually be difficult. On the other hand,
where the time limited for serving fresh or new expert reports has passed, and
thus the only purpose of an independent medical examination is in furtherance
of the production of a responsive expert report, the evidentiary burden will
generally be more difficult to meet.

[19]        
Several cases have addressed this issue. The earliest authority decided
under the new Rules is that of Wright v. Brauer, 2010 BCSC 1282. In
that case, Savage J. noted that the purpose of Rule 7‑6 is the same as
the purpose of the former Rule 30 which was, according to Finch J.A. in Stainer
v. I.C.B.C., 2001 BCCA 133, where at para. 8 he wrote:

[8]        …the purpose of Rule
30 [the predecessor Rule 7-6] is to put the parties on an equal footing with
respect to medical evidence

[20]        
In Wright, the defendant applied for an order requiring the
plaintiff to submit to a medical examination by an orthopedic surgeon. The
application was made after the time limited for serving new or fresh expert
reports, but before the time for serving responsive reports. Savage J.
alluded to the parameters of what Williamson J. referred to as "truly
responsive rebuttal evidence" in Kelley v. Kelley (1995), 20
B.C.L.R. (3d) 232 (S.C.). He held that an application for an independent
medical examination must be assessed in light of the parameters that govern
responsive expert reports. Because of that, he held that the issue on such an
application is, assuming the application is brought before the time limited for
the serving of responsive reports, not one of notice "but whether the
Examination should be ordered to enable the defendant to file responsive
evidence" (paragraph 18). In the matter before him, the only evidence
touching on that question was from a paralegal in the defendant’s legal
counsel’s office, who simply deposed that "[it] is necessary to properly
defend this action and to respond to the reports of [the other doctors]". Savage
J. held that a bare assertion of that kind in the circumstances of the case
before him was insufficient to warrant the making of an order under Rule 7‑6.

[21]        
The issue arose again in Luedecke v. Hillman, 2010 BCSC 1538 on
an appeal from an order by a master, in which she required the plaintiff to
attend for an examination by a physiatrist nominated by the defendant. Cullen
J. (as he then was) reviewed a number of authorities that have considered the
parameters of truly responsive expert reports and made reference to Savage J.’s
decision in Wright. He agreed with the reasoning in Wright,
noting in para. 54:

[54]      I agree with the
conclusion of Mr. Justice Savage in Wright v. Brauer…to the effect
that there is an evidentiary threshold to be met before an order under Rule
7-6(1) should be made in contemplation of an expert’s report under Rule 11-6(4).
That threshold is different from that for ordering an expert’s report under
Rule 11-6(3). To reach the requisite threshold under Rule 11-6(4) the applicant
must establish a basis of necessity for the examination to properly respond to
the expert witness whose report is served under subrule (3) by the other party.
It is not simply a matter of demonstrating a need to respond to the subject
matter of the plaintiff’s case.

[22]        
Cullen J. dismissed the appeal. He did so on the basis that the evidence
before the master included an affidavit from the physiatrist before whom the
defendant sought to have the examination take place. The physiatrist deposed,
among other things, that:

9.         I would need to
conduct the same type of in-person assessment in order to provide my opinion in
response to the opinions provided by [the other doctors]. One cannot properly
give responsive rebuttal opinions on a patient’s movement, functioning,
diagnosis, prognosis, distribution of symptoms, recommendations, suitability
for work, and etiology without examining (including, where appropriate,
palpating) the patient. Without examining the patient in person, I would be
limited to critiquing the methodology or the research or pointing out facts,
apparent from the records, which the other examiners may have overlooked.

[23]        
In Labrecque v. Tyler, 2011 BCSC 429, Master Bouck dismissed an
application to have a plaintiff submit to an independent examination for
purposes of preparing a rebuttal or responsive report. The application was made
less than a month before trial in the context of litigation subject to the fast
track regime. The proposed examiner provided an affidavit in which he deposed
that he needed to "physically examine the plaintiff and ask him the
questions a doctor would ask in order to elicit information upon which to
ground my opinions."

[24]        
Master Bouck concluded that this evidence was insufficient to justify
ordering an independent medical examination (para. 37). She also concluded
that in the event the doctor’s evidence might be considered sufficient, she
would decline to make such an order because of the prejudice that would flow
from it, having regard to the fact that, among other things, the trial was less
than a month away.

[25]        
Finally, in Becker v. Zetzos (May 2, 2013), Vancouver Registry
M121679 (S.C.), Master McCallum dealt with an application in a personal injury
action. Again, the issue was whether the plaintiff should be required to attend
for an independent medical examination, supplemental to or in support of the
preparation of a responsive report. The application in Becker was made
after the time limited for filing new or fresh expert reports, but before the
deadline for responsive reports. There was affidavit evidence from the doctor
who was proposed to carry out the independent medical examination. Interestingly,
it closely tracked the evidence that was before Cullen J. in Luedecke. The
doctor in Becker deposed as follows:

In order for me to assist the
court and properly prepare a rebuttal to the expert report of [the other
doctor] I must physically examine the Plaintiff and ask him the usual questions
that a doctor would ask in order to elicit any information upon which to ground
my expert rebuttal report. I could not give a proper rebuttal opinion report of
the Plaintiff which assists the court and opines on the movement, functioning,
diagnosis, prognosis, distribution of symptoms, recommendations, suitability
for work, and etiology of the Plaintiff without physically examining the
Plaintiff and where appropriate palpating the Plaintiff.

[26]        
Master McCallum referred to Luedecke v. Hillman but concluded
that the evidentiary threshold had not been met in the matter before him. At
paragraphs 17 and 18, he said:

[17]      In this case I say the evidentiary threshold has
not been crossed. [The doctor’s] letter is simply saying that he cannot give a
proper rebuttal opinion report to assist the court without examining the
plaintiff. In support of that position he goes through what seems to me to be
simply a description of the work he would do if he were preparing a report in
the first instance.

[18]      He has [the other
doctor’s] report. He does not say, as he could have, what there is about that
report that would lead him to think that he himself needs to examine the
plaintiff. The defendant has not met the evidentiary threshold to support the
request for a physical examination of the plaintiff prior to preparation of a
rebuttal report.

[27]        
Other factors, aside from the evidentiary threshold, influence the
discretion the court has to order an independent medical examination for
purposes of the preparation of a responsive expert report. In fact, it appears
that those other factors were influential in the different outcomes in Luedecke
and Becker. In Luedecke, the responsive expert report was sought
to address a report obtained by the plaintiff and served at or near the
deadline for the service of expert opinion evidence. The plaintiff’s report
addressed the plaintiff’s ability to continue his employment as a pilot. Although
passing reference had been made to that issue at the plaintiff’s discovery, it
appears that it was not an issue that the defendant ought to have reasonably
anticipated, and thus while the report sought was a responsive report, it would
play a significant role in "levelling the playing field", which is,
as was pointed out by Finch J.A. in Stainer, the primary purpose of Rule
7‑6.

[28]        
On the other hand, in Becker, Master McCallum thought it
unlikely, perhaps very unlikely, that the defendant in that case did not
anticipate a report of the sort the plaintiff served, and to which the defendant
wished to respond, supported by an independent medical examination.

[29]        
Turning to the facts in this case, I am not satisfied that the
evidentiary threshold has been met. There is no evidence from the occupational
therapist who is to conduct the evaluation. The only evidence is in an
affidavit from counsel for the defendant’s legal assistant, who has deposed
that:

18.       The Defendant has
reviewed the Functional Capacity Evaluation report of Carole Kennedy dated June
27, 2013 and served by Plaintiff [sic] counsel on July 9, 2013 and requires a Functional
Capacity Evaluation in order to properly respond and rebut the opinion of Carole
Kennedy.

[30]        
In a subsequent affidavit, the defendant’s counsel’s letter of
instruction to the occupational therapist has been exhibited. The two
paragraphs of that letter pertinent to the issue are as follows:

The court seeks your expert assistance in the field of
occupational therapy providing functional capacity evaluations and cost of care
assessments to determine any functional limitations which the Plaintiff may
have and to provide your opinion on his cost of future care needs. I am not
asking for an opinion on causation of the Plaintiff’s injuries but merely what
functional limitations the Plaintiff has at the current time and what services
or equipment are required to ameliorate those concerns.

I further request that you review
the report of Carol Kennedy and provide the Court with your opinion on whether
you agree with each of the recommendations made in her report of June 27, 2013
and, if not, the reasons for any disagreement with her recommendations.

[31]        
In some respects, the foregoing two paragraphs cast this issue into
relief. The second paragraph seeks what might be properly regarded as a
responsive opinion. There is nothing in the evidence in this case as to why it
would be necessary for an occupational therapist to conduct a comprehensive
functional capacity evaluation in order to respond to the functional capacity
evaluation and cost of care reports of the plaintiff’s expert. On the other
hand, it is obvious why an independent physical examination of the plaintiff
would be necessary to carry out the request set out in the first paragraph of
the letter of instruction. The difficulty is that the report which would be
generated as a result would not be a responsive report per se. It
would, rather, be a fresh or new opinion and subject to the constraints that
such opinions are subject to.

[32]        
Although the evidentiary burden has not been met in this case, I
acknowledge that, on occasion, there may be circumstances which might justify
the ordering of an independent medical examination, otherwise than in support
of the preparation of a responsive report. It may be that, in some cases, the
court may anticipate or at least allow for the possibility that a fresh opinion
would be exceptionally admissible, notwithstanding that the 84‑day
deadline has passed. Although not framed that way in Luedecke, the issue
may have arisen at trial after the production of the report that the master
ordered. In this case, however, there is no basis to conclude that an
independent medical examination is necessary to level the playing field.

[33]        
The plaintiff’s functional capacity evaluation has been an issue, more
or less front and centre in this litigation, almost from the outset. The defendant’s
counsel argues that he was unaware that the plaintiff was going to tender an
expert opinion in the form of an functional capacity evaluation until he was
served with the report in question, and by then, it was too late to prepare a
fresh report from his own expert. I accept that counsel may have assumed
that the plaintiff was not going to tender a functional capacity evaluation,
but the plaintiff had done nothing to lead the defendant to that conclusion. Indeed,
the defendant knew that the plaintiff had scheduled an evaluation several
months earlier and had only adjourned it because the plaintiff was having
ongoing difficulties arising from a recent surgery. It may well be common
practice for plaintiffs to serve an expert report at or near the deadline. To
the extent that is so, defendants cannot assume that no such reports will be
forthcoming until the deadline is reached.

[34]        
In this case, the defendant unilaterally cancelled the functional
capacity evaluation to which the plaintiff had agreed to submit. The fact that
the plaintiff was prepared to agree to submit to such an evaluation prior to
the time limited for serving fresh or new opinions is not particularly relevant
to a consideration of an order to that effect should go after that time limit
has expired.

[35]        
In all of these circumstances, it does not seem to be necessary to order
an independent medical examination to level the playing field. I also note that
the defendant has had the plaintiff examined by its expert: an expert who, as
noted above, has a particular interest in and an expertise on issues relating
to employment disability or abilities. Although the defendant has not served a
report from that expert, it cannot be said that he has been unable to explore
the question.

[36]        
In all of these circumstances, I am not persuaded that the order should
go, and the application for an independent medical examination is dismissed.

[37]        
MR. TURNER:  Costs my Lord?

[38]        
THE COURT:  I will leave the costs in the discretion of the trial judge.
Thank you.

“G.M.
Barrow, J.”

Barrow
J.