IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131008

Docket: 11-4086

Registry:
Victoria

Between:

Margaret
Isobel Foster

Plaintiff

And:

Ranvinder
Kaur Chandel and Manoj Chandel

Defendants

Before:
Master Bouck

Reasons for Judgment

The Applications

[1]            
The defendants seek orders removing this action from Fast Track and
requiring the plaintiff to attend an independent medical examination with a
psychiatrist. The relief sought is somewhat intertwined. An order for a
psychiatric examination may increase the length of the trial and add to the
overall complexity of the proceeding thus supporting the removal of the action
from Fast Track.

[2]            
For reasons that follow, I have determined that both applications ought
to be dismissed.

Background Facts

[3]            
The plaintiff is a middle-aged emergency services dispatcher. Ms. Foster
alleges to have suffered various injuries as a result of a motor vehicle
accident which occurred on October 8, 2009. The injuries pled include injuries
to the neck, shoulder and back, as well as headaches and anxiety and
depression. Liability for the accident has been admitted by the defendants.

[4]            
Following the accident, Ms. Foster returned to work but received some
accommodations from her employer as a result of the accident-related complaints.
Ms. Foster was no longer able to work night shifts. Part of the wage loss
claim, which has yet to be particularized, will be based on the loss of night
shift wage differentials and overtime.

[5]            
Ms. Foster’s injuries led to the development of chronic pain and major
depressive disorder. In order to treat these symptoms, Ms. Foster consumes a
maximum dose of a certain anti-depressant which is supplemented by another
medication.

[6]            
Eventually, Ms. Foster’s symptoms led her to leave employment, first on
short term and now on long term disability.

[7]            
The long term disability insurer required Ms. Foster to attend a
psychiatric examination. The plaintiff has agreed to produce any record of that
examination. This information has yet to be provided by the long term disability
insurer although requested.

[8]            
Ms. Foster deposes that she is not alleging to have suffered any
psychiatric or psychological injury in the accident.

[9]            
The trial in this matter has been set for three days commencing
June 14, 2014. The defendants say that the trial can proceed at that time
even if removed from Fast Track so long as extra consecutive days are made
available to the parties.

[10]        
The defendants may lead evidence from witnesses to the motor
vehicle accident itself, as well as from the plaintiff’s employer. It is
suggested that the testimony from these witnesses, together with the
defendants’ two proposed medical experts, will mean that the trial will not be
completed in the reserved three days.

[11]        
While acknowledging that the amount of damages being sought may exceed
$100,000, the plaintiff is confident that the trial can be completed in three
days. In terms of experts, the plaintiff will rely on the report (or reports)
from her family doctor and perhaps those of Dr. L. Kahn, a pain management
specialist. The plaintiff has no intention of leading psychological or
psychiatric opinion evidence.

[12]        
The plaintiff voluntarily attended an independent medical examination
with Dr. J. Filbey, a physiatrist, on June 3, 2013. The defendants have
yet to decide whether a written opinion will be sought from Dr. Filbey.

[13]        
Ms. Foster deposes that she does not wish to attend an examination with
another psychiatrist because of the “invasive nature of the questions which may
be asked of me”. Ms. Foster also questions the necessity of the examination
being conducted by a psychiatrist in the Lower Mainland, rather than a local doctor.

[14]        
The plaintiff has been examined for discovery, but the defendants say
more time is needed to fully canvass all of the issues raised in the medical
evidence. The plaintiff is amenable to continuing the examination beyond the time
allowed under Rule 15-1(11).

Discussion

Psychiatric IME

[15]        
It is logical to first address the request that the plaintiff attend the
independent psychiatric examination.

[16]        
As the plaintiff has already attended one independent examination, the
defendants might be expected to meet a higher evidentiary threshold before an
order for a second examination is made: Hamilton v. Pavlova, 2010 BCSC
493. However, whether the request is made for a first or second examination,
the court will only make the order if necessary to put the parties on equal
footing in their ability to explore the issues in the case: Teichroab v.
Poyner, 2008 BCSC 1130 @ para 24.

[17]        
In seeking their order, the defendants rely on the fact that the
plaintiff is taking the maximum dosage of anti-depressant medication; has been
seen by a psychiatrist (but not for treatment); and is suggested [by her family
doctor] to be suffering from a mood disorder related to chronic pain.

[18]        
There is no evidence from any medically-trained person suggesting that a
psychiatric examination is necessary or useful to either diagnose or treat the
plaintiff. The plaintiff is taking medication in the dosage recommended by
physicians with no suggestion of prescription abuse. The emotional symptoms are
said by the medical experts to emanate from the plaintiff’s physical pain, not
from any alleged psychiatric condition or disorder.

[19]        
The defendants submit that the psychiatric examination may reveal other
causes for the plaintiff’s anxiety and depression. It may also reveal the
nature and extent of these conditions.

[20]        
Such information can be sought at the plaintiff’s examination for discovery.
A psychiatric examination should not be ordered simply to allow the defendants
to ask the same questions asked in discovery but in a different manner and
venue.

[21]        
The nature and extent of the plaintiff’s pain disorder and resulting
symptoms is revealed in the records and reports of the treating physicians.
There is no evidence to suggest that a psychiatrist could offer a “better”
diagnosis or prognosis on that condition.

[22]        
The facts of this case have many parallels to those discussed in Wocknitz
v. Donaldson, 2010 BCSC 1991. As in that case, the defendants do not have the
necessary evidentiary foundation to support an order for “this particularly
invasive form of examination”: para. 20.

Removal of action from Fast Track

[23]        
The dismissal of the application for a psychiatric examination
eliminates one of the defendants’ rationales for seeking removal of the action
from Fast Track.

[24]        
Another rationale for removal of this action from Fast Track is the
length of the trial.

[25]        
It appears on the evidence before me that the trial can be completed in
three days. The plaintiff says that she can complete her case in just over one
day. The defendants’ need to cross-examine the plaintiff’s two experts has not
been firmly determined, but the time required for this purpose should not be
more than one day. That leaves sufficient time to hear the defendants’
witnesses as well as closing submissions. In any event, the defendants are not
even certain of the witnesses to be called or the medical evidence that will be
led at trial. To a large extent, the defendants’ evidence concerning the length
of trial is based on a yet to be determined witness list and trial plan.

[26]        
The fact that the plaintiff’s claim for damages might exceed $100,000 is
not in and of itself justification for removal of the action from Fast Track: Hemani
v. Hillard, [2011] B.C.J. No. 1924 (S.C.).

[27]        
Finally, the plaintiff is prepared to continue her examination for
discovery for up to three hours beyond the time allowed under Fast Track. That
concession removes any potential prejudice to the defendants who say that
certain subject matters have yet to be explored. No order is made with respect
to the examination time as the relief was not specifically sought. The
defendants always have the opportunity to apply for an order extending the time
if this remains an area of contention.

[28]        
The defendants’ application for removal of this action from Fast Track
is at best premature. As the evidence develops, it may become obvious to the
parties that the action ought to be removed if only because the trial will
certainly consume more than three days. In those circumstances, it might be in
the plaintiff’s best interests to consent to the removal to ensure that a trial
date is not lost and costs are not so limited: Rule 15-1(14), Sandhu v. Roy,
2011 BCSC 1653.

[29]        
Thus, although the application is dismissed at this time, the defendants
are at liberty to seek an order removing the action from Fast Track either at
or subsequent to the Trial Management Conference.

[30]        
Costs of the defendants’ two applications will be to the plaintiff in
the cause.

                “C.
P. Bouck”     

Master
C. P. Bouck