IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131121

Docket: M116752

Registry:
Vancouver

Between:

Patricia Wong

Plaintiff

And

Clifford Russell
Trueit and Floor-Tech Systems Inc.

Defendants

Before:
Master D. C. Baker

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: This is an application to adjourn a trial set for
three days commencing December the 3rd and arising out of a motor vehicle
accident.  The application is made by the plaintiff and counsel have both
argued their perspectives thoroughly, ably, and succinctly.  It has been a long
week.  I have heard a lot of applications.  There has been a complete spectrum
in that respect.  I am glad to say that today’s was at the very professional
and competent end of the spectrum.

[2]            
I am going to grant the application.  I find absolutely no fault with
Ms. Wong or the conduct of her case to date.  The suggestion that she or her
counsel have been either dilatory or anything of that nature in trial
preparation is simply just not evidenced at all before me.  Ms. Wong alleges a
variety of injuries, not surprisingly, I suppose, from a vehicle-pedestrian
accident – she being, obviously, the pedestrian – in which liability has been
admitted.

[3]            
The issue quite specifically and in a focused manner turns on her right
knee.  She pleaded in her notice of civil claim injuries to her right knee.  No
question about that.  It turns out that she has had knee problems in the past. 
There are indications, I am not sure it is even disputed, that there is
arthritis setting in, but matters proceeded in the usual fashion.  A notice of
trial was taken out some 14 months ago.  When the events I am about to describe
became evident, Ms. Kornfeld felt she could not file a trial certificate, the
trial certificate requiring in Form 42 that she be ready for trial.  Her
position today and then was that, "I am not ready for trial because my
client has newly diagnosed injuries."

[4]            
In July, I believe it was, of this year, at the defendant’s request, Ms.
Wong attended on Dr. Werry, W-e-r-r-y?

[5]            
MS. KORNFELD:  Yes.

[6]            
THE COURT:  For an independent medical examination.  Dr. Werry gave such
an even-handed report that Ms. Kornfeld indicated that, for a while, she was
quite content to rely on his observations and conclusions and was ready to go
to trial without further ado, but he also recommended – and this is
interesting, much of this has been initiated as a consequence of the IME, I
think – he recommended further orthopaedic examination and opinion in respect
of the knee.  Dr. — is it Yuzak?

[7]            
MS. KORNFELD:  Yuzak, Y-u-z-a-k.

[8]            
THE COURT:  Thank you.

[9]            
Dr. Yuzak, the general practitioner for the plaintiff, was not
particularly, I would say, eager to proceed down that track, was not
particularly eager to order scans.  So Ms. Kornfeld undertook that on her own
initiative and that scan revealed a torn ACL and torn meniscus.  There is
dispute now as to the cause of those injuries, whether they are degenerative in
nature, i.e., resulting from the, I would say, generally degenerative
conditions that Dr. Werry was referring to in his comments on arthritis, or was
it traumatic?

[10]        
Time was short.  Ms. Kornfeld had referred the matter quickly to Dr.
Fuller, an orthopaedic surgeon, who was unable on the short notice to actually
examine Ms. Wong, but said that, "The MRI," and this is dated
November 17th, his letter, "The MRI is reported to show severe and complex
tears of the medial meniscus inner cartilage and a horizontal tear of the
lateral meniscus outer cartilage."  He proceeds to describe the anterior
cruciate ligament being torn.  The next paragraph is what is germane, "Although
these changes are usually associated with trauma, I am unable to offer a
responsible opinion on the causal relationship of these injuries to the motor
vehicle accident of January 11, 2010, without carrying out an appropriate
history, interview, and complete physical examination."

[11]        
That strikes me as absolutely obvious and totally professionally
responsible on the part of Dr. Fuller.  I do not know how he could go opining
without — I do not think he could give us any better than what he gave us.  It
obviously requires further examination.  Causation, if it is to be established,
obviously requires further orthopaedic examination and opinion.

[12]        
As I have said, I just cannot see in the circumstances any fault on the
part of Ms. Wong in this respect.  Ms. Mihailovic has been clear that — and I
do get the point and it does make sense, to this extent, that Ms. Wong has
complained about right knee problems for a long time, from the accident on.  She
argues that she should have been more diligent in trying to obtain the expert
examinations and reports that would confirm what now she alleges is the
circumstance, i.e., that the accident caused the ACL tear.  I cannot see any
evidence whatsoever of that.  In my respectful view, Ms. Wong, like most
patients, relied on her physicians, be they GPs or specialists as time went
by.  I cannot see any dilatoriness on her part.

[13]        
Sideroff v. Joe, a Court of Appeal decision, is the one we always
rely on — or are always referred to, that is for sure, in respect of
adjournments and the required balancing of prejudice between the parties. 
There is prejudice, of course, to the defence if this matter is adjourned. 
There is further delay, but the prejudice to Ms. Wong just so obviously
outweighs that, that her — it is just so obvious to me that she will not be
able to present her case in a full and a complete way.  She will be deprived of
the opportunity to do that.  I agree with Ms. Kornfeld that the cases that
decide otherwise largely recognize a diagnosis and a prognosis, within reason,
and that the treatment modality and consequence may be before the trial judge. 
That is a much more limited discussion.  We are still at the stage here of
analysis of causation, and that is so elementary to the case that the
adjournment has to go.

[14]        
Ms. Mihailovic requested conditions, most of which Ms. Kornfeld agreed
with, which is to reset the matter.  There is some discussion still whether it
can be done in three or four days.  I will not go there.  I will leave that to
counsel to reset it.

[15]        
The new date will be peremptory against Ms. Wong.   That is fine.  That
order will go.

[16]        
There will be further examination for discovery arising as a consequence
of these new facts.  That is fine.

[17]        
I think that leaves costs.  Was there some other condition, one other
condition?

[18]        
MS. KORNFELD:  Yes, the rebuttal, that it be restricted to —

[19]        
THE COURT:  Oh, the nature of any reports, I will not make that a
condition.  It was asked that any further reports be restricted to rebuttal
reports in respect of this and I will not make that order.  I simply do not
agree and do not accept that there is any attempt by Ms. Wong or her counsel to
somehow circumvent the Rules.  I think that is — I do not get that.  The Rules
require an application to adjourn.  Nobody is trying to file a report that is
out of time.  That would be a circumvention of the Rules, I suppose.  Anyway,
that order will not go.

[20]        
On costs, I have heard Ms. Kornfeld.  Ms. Mihailovic, what do you say on
costs?

[21]        
MS. MIHAILOVIC:  Given the circumstances, I think each party should bear
their own costs of this application.

[22]        
THE COURT:  I do not agree.  The plaintiff is entitled to her costs. 
She is absolutely entitled to an adjournment so she is entitled to her costs. 
The costs are summarily fixed at $1,520 all in.  That includes costs in
accordance with Schedule 3 to the tariff.  I am fixing the costs in accordance
with Rule 15-1(14) — sorry, 14-1(15)?  It is 14-1(15).  Schedule 3 provides
for a full day at Scale B, at approximately $1,200.  When you add in the tax
and you add in the $120 for disbursements, it is $1,520 —

[23]        
MS. MIHAILOVIC:  Your Honour, the fact that this could have gone —

[24]        
THE COURT:  — payable in any event, but not forthwith.

[25]        
MS. MIHAILOVIC:  — that this could have been brought at the TCM, but
the Rules specifically says —

[26]        
THE COURT:  I think the judge actually spoke about that.

[27]        
MS. KORNFELD:  The Rules —

[28]        
MS. MIHAILOVIC:  He did and he asked her if she was bringing an
adjournment application and my friend specifically said no.

[29]        
THE COURT:  Okay.  Well, you will be —

[30]        
MS. MIHAILOVIC:  That is why I think this is unnecessary.

[31]        
THE COURT:  — very familiar, then, with Vernon v. Liquor
Distribution Branch?  You are familiar with —

[32]        
MS. MIHAILOVIC:  No.

[33]        
THE COURT:  Oh, you are not?  You should be.  About October 2010, soon
after the new Rules were passed: you can look it up, Mr. Justice Goepel, Vernon
v. LDB.  You cannot bring an application at a TMC or CPC if affidavits are
required.

[34]        
MS. MIHAILOVIC:  Unless parties agree.

[35]        
THE COURT:  If I sound frustrated it is because it is so frequently the
case where one counsel will simply pop up and say, “…well, they say their
client was, forgive me, hit by a truck recently, but I need an affidavit” and,
you know, that has, with respect, reduced the effectiveness.  You are
absolutely right, absolutely right.  The TMC rule specifically provides for
adjournments.  I mean what else would you — what could be more logical than to
deal with adjournments, which I do, usually based upon briefs.  As soon as
counsel says, "Need some evidence," it goes to chambers and we have
spent a good chunk of the afternoon talking about evidence here.  But this is a
case that required evidence.  No doubt about it.  No doubt about it.  None.

“D.
C. Baker, M.”