IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140724

Docket: M053418

Registry:
Vancouver

Between:

Kulbir Kaur Litt
a.k.a Kulbir Kelly Litt

Plaintiff

And

Hui Wu Guo a.k.a.
Steven Guo, Narinder Singh Johal

and Kulwinder Kaur
Johal

Defendants

– and –

Docket: M111513

Registry:
Vancouver

Between:

Kulbir Kaur Litt
also known as Kulbir Kelly Litt

Plaintiff

And

Peter Lawrence
Ratsoy and S-232 Holdings Ltd.

Defendants

Before:
The Honourable Madam Justice Fenlon

Oral Reasons for Judgment

[1]            
THE COURT: The defendants apply for a second medical examination
of the plaintiff. The claims underlying the action are for personal injury,
physical and psychological, arising out of two motor vehicle accidents that
occurred in November 2003 and August 2010.

[2]            
The trial is set for October 27, 2014. The trial was adjourned at least
once, the most recent adjournment occurring in February of 2013. The 84-day
expert report service deadline is August 4.

[3]            
The defendants apply for an order that the plaintiff attend a medical
examination with Dr. Killian, who is a medical doctor with a specialty in
physical medicine and rehabilitation. They have scheduled an appointment on
July 31, 2014. The plaintiff does not wish to attend that medical examination,
hence this application by the defendants.

[4]            
The plaintiff did attend by consent two medical examinations with Dr. Paul
Bishop, once in February 2009 and again in October of 2012. Dr. Bishop is
a physician with a specialty in the spine and that area of medicine generally.

[5]            
The parties agree on the test. They agree that the fundamental
principles are set out in the decision of the Court of Appeal in Wildemann
v. Webster (1990), 50 B.C.L.R. (2d) 244 (C.A.). They also agree that that
test is one which focuses primarily on the need to ensure a reasonable equality
between the parties in the preparation of a case for trial.

[6]            
The parties also agree that a second independent medical examination is
generally granted in exceptional circumstances, but with the “compass” being
the need to ensure relative equality of preparation before trial.

[7]            
The defendants say that they have met the test. They rely on two grounds.
The first is that the plaintiff raised new complaints about worsening pain in reports
to her family doctor on January 3, 2013, and again on June 17, 2013. Those
reports of worsening pain include an aggravation of symptoms and the need to
take time off work.

[8]            
Those symptoms were addressed by Dr. Bishop in a report he prepared
about two months before the notes made in the records the defendants rely on. Dr. Bishop
says in his second report, dated October 2, 2012, that the plaintiff reported
to him that her symptoms had worsened since the second accident and that her
ability to work was very restricted by her pain, especially on prolonged
sitting. She reported at that time interruptions in her work due to those
symptoms.

[9]            
There is nothing in the record before me to suggest a second IME by a
different specialist is necessary to address some injuries or complaints that
were not known to Dr. Bishop; quite the contrary.

[10]        
The second ground raised by the defendants, and the ground that Mr. McHale
referred to as the primary basis supporting the application for another IME by
a different specialist, is that the most recent report of Dr. Bishop will
be two years old at the date of trial in October 2014. The defendants fear that
the plaintiff might file a newer report before the August 4 deadline for
delivery of such reports, and the defendants say they would then be at a
disadvantage because the plaintiffs will have a fresher report, a report based
on a more recent assessment of the plaintiff.

[11]        
The defendants submit that they would wish to put before the Court the
best evidence, the evidence of an examination of the plaintiff at a time more
recent than October 2012. There are, in my respectful view, two weaknesses with
that submission. The first is that it anticipates what has not yet occurred.  If
the plaintiff does submit a report prepared by one of her experts based on a
recent examination of the plaintiff and if something new comes out of that
report, then presumably Dr. Bishop could be invited to comment on it and
the defendants would be in a position to file a rebuttal report. There is
nothing in the record before me to suggest that he would not be able to comment
on such a report or that there would be a need for further examination should
he, in fact, be faced with such a report.

[12]        
The second weakness is that passage of time alone is not a basis for
ordering a second medical examination of a plaintiff. Dr. Bishop’s report
is very clear in terms of his diagnosis, prognosis and his description of the
pattern of symptoms Ms. Litt will experience into the future. He describes
a likely aggravation of symptoms on activity, which it seems is exactly what is
reflected in the medical reports which initially led to this application.

[13]        
In short, despite Mr. McHale’s able submissions, I cannot find that
a further examination is necessary to ensure reasonable equality of the parties
in preparing for this trial.

[14]        
I should add that I have considered all of the authorities that were put
before me. I note in particular that I have considered the factors outlined in
the test described in De Sousa v. Bradaric, 2011 BCSC 1400 at para. 12.

[15]        
In my view the plaintiff should be entitled to her costs of this
application in any event of the cause. For clarity, those costs are not payable
forthwith.

[16]        
To summarize, the defendants’ application is dismissed, and the
plaintiff is entitled to costs of this application.

The
Honourable Madam Justice L.A. Fenlon