IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150312

Docket: M115401

Registry:
Vancouver

Between:

Jorin Dann-Mills,
by his litigation guardian, Robbin Williams

Plaintiff

And

Sharon Tessier,
Daniel Mills, Kulwinder Singh Dhaliwal,
The City of Abbotsford,
I the Queen in Right of the Province of British Columbia,
Emil Anderson Maintenance Co. Ltd., ISL Engineering and Land Services Ltd. and Interlink
Carrier Ltd.

Defendants

And

Sharon
Tessier, Daniel Mills, Kulwinder Singh Dhaliwal,
The City of Abbotsford, Emil Anderson Maintenance Co. Ltd.,
I the Queen in Right of the Province of British Columbia as represented by
the Ministry of Transportation and Infrastructure,
ISL Engineering and Land Services Ltd. and Interlink Carrier Ltd.

Third
Parties

Before:
The Honourable Mr. Justice Voith

Reasons for Judgment

[1]           
The defendant ISL Engineering and Land Services Ltd. (“ISL”) seeks an
order “pursuant to Rule 7-2(8) or, in the alternative, pursuant to Rule 7-2(9),
and the inherent jurisdiction” of this court, that the plaintiff attend an
examination for discovery at a time and place agreed upon between counsel, or
failing agreement, at a time and place ordered by this court. ISL’s application
is supported by most of the defendants.

Background

[2]           
The general background to this application is straightforward. On August
14, 2008, the infant plaintiff, Jorin, and his mother, Ms. Tessier, were
involved in a serious motor vehicle accident. At the time, Jorin was 17 months
old. Today, he is nearly eight years old.

[3]           
Each of Jorin and his mother are plaintiffs in separate actions. I
currently case manage both actions. Both actions are to be heard at the same
time commencing on January 11, 2016. The trials are set for 67 days.

[4]           
It is argued that Jorin suffered a serious traumatic brain injury and
various other injuries, including seizure disorders and various adjustment
disorders. The claim being advanced on behalf of Jorin is, I am told,
significant.

[5]           
The following additional specific facts are relevant. In connection with
an earlier failed mediation, which took place in June 2013, the parties filed
ten separate medical-legal reports in relation to Jorin’s damage claim. These
reports were prepared by individuals within a number of specialized disciplines,
including pediatric neurologists, neuropsychologists, registered speech and
language pathologists, psychiatrists, pediatric psychologists and occupational
therapists. Some of these various reports were based on an examination of Jorin
in a school setting or in his home. Others included interviews of Jorin’s
grandmother and litigation guardian, and of his teachers.

[6]           
The parties plan to update a number of these reports, and the defendants
have scheduled the following further independent medical examinations of Jorin
in the next few months:

1)       Dr. Duane
MacGregor, pediatric neurologist, April 4, 2015;

2)       Dr. Joschko,
pediatric neuro-psychologist, April 9-10, 2015;

3)       Gary
Nix, educational consultant, May 7, 2015;

4)       Dr. Robin
Friedlander, psychiatrist, May 19, 2015;

5)       Karen
Kirker, occupational therapist, May 29-30, 2015;

6)       Wendy
Duke, speech language pathologist, May 2015 (exact date to be determined); and

7)       Physiatrist,
name and date to be provided.

[7]           
Counsel for the infant plaintiff has confirmed, in writing and before me,
that he does not intend to call Jorin at trial. If, for some unknown and
unlikely reason this intention changes, counsel has committed to providing the
defendants at least three months’ notice of that intended change.

The Relevant Rules

[8]           
The relevant Supreme Court Civil Rules provide:

Rule 7-2 – Examinations for Discovery

Examination of parties

(1)        Subject to subrule (2), each party of record to an
action must

(a)        make himself or herself
available, or

(b)        if any of sub-rules (5)
to (10) apply, make a person referred to in that sub-rule available,

for examinations for discovery by the parties of record to
the action who are adverse in interest to the party subject to examination.

Examination of guardian and
infants

(8)        Unless
the court otherwise orders, if a party to be examined for discovery is an infant,
the infant, his or her guardian and his or her litigation guardian may be
examined for discovery.

Examination of
mentally incompetent person

(9)        If a party to be examined for
discovery is a mentally incompetent person, his or her litigation guardian and
his or her committee may be examined for discovery, but the mentally
incompetent person must not be examined without leave of the court.

[9]           
The applicant’s central proposition is that the right to conduct an
examination for discovery of a party arises as a matter of right; see Halabus
v. Taekema, 2007 BCSC 113 at para. 6. The applicant argues that this
right extends to examination for discovery of parties that are infants. The
applicant further argues that the language of R. 7-2(8) is conjunctive,
and entitles a party adverse in interest to examine an infant party, his or her
guardian and his or her litigation guardian. The only potential exception to
the “right” to examine an infant for discovery, the applicant says, is found in
R. 7-2(9), which pertains to mentally incompetent persons and would extend
to mentally incompetent infants.

[10]       
To this end, counsel for the applicant relies on a letter dated September
4, 2014, from Dr. Michael Joschko, a registered psychologist who
specializes in childhood neuropsychology, and who examined Jorin on April 8 and
9, 2013, to establish that Jorin is mentally competent to attend at an
examination for discovery. Dr. Joschko’s letter can be summarized as follows:

a.   any child
of Jorin’s age would not understand the nature, quality and obligation
associated with an oath or solemn affirmation;

b.   Jorin is
capable of understanding the difference between telling the truth and lying;

c.   Jorin is
capable of understanding the nature, quality and obligation associated with telling
the truth;

d.   Jorin is
capable of answering questions about concepts, activities and events including
such things as his daily routine, daily functioning and relationships with
family or friends;

e.   there is
nothing about the examination for discovery process that would be potentially
harmful to Jorin;

f.    Jorin’s
short attention span makes it desirable that he be able to take short breaks
during an examination for discovery and that the discovery not be scheduled for
a full day at one time.

g.   Jorin does
have ADHD (attention deficit hyperactivity disorder) which is a “disorder of
the mind” but the disorder does not seriously impair

I       his ability to react
appropriately to his environment; or

ii      his ability to associate with others.

[11]       
Counsel for Jorin did not appear to contest the applicant’s central
thesis and focused, instead, on correspondence from Dr. Purtzki, an adult and
pediatric medicine and rehabilitation specialist, who has been involved in
Jorin’s care since shortly after his accident. Dr. Purtzki’s
correspondence addresses various matters and advances the following conclusions
in her letter dated July 18, 2014:

Dr. McConnell tested Jorin in
2013, and he was in the mildly mentally handicapped range.  He has severe
attention, memory and executive function deficits.  He has poor ability to self
regulate and has emotional outbursts, especially when fatigued or stressed.  He
has significant development delay… .

[12]       
Dr. Purtzki’s correspondence further asserts:

1.   He is
intellectually not competent to understand the purpose or complexity of the
examination.

2.   He would
not be able to comprehend what an oath actually means.

3.   He would
not be able to withstand any questioning due to his emotional fragility and
poor attention.

4.   It would be
very emotionally traumatic and completely contraindicated from a medical
perspective.

5.   Even
normally developing children are in a concrete state of thinking at that age,
and as an example, still believe in Santa Claus and the Tooth Fairy. A brain
injured child is even more limited in their understanding and can be lead to
say or believe anything if manipulated.

6.   I strongly object to any direct
questioning in a discovery. The results would be meaningless and the process
almost abusive to the child.

[13]       
In a follow-up letter dated September 18, 2014, Dr. Purtzki further
developed and explained some of the foregoing conclusions.

[14]       
The written submissions of both counsel thereafter address the question
of whether Jorin is “mentally incompetent”. The Interpretation Act, R.S.B.C.
1996, c. 238, s. 29, defines a “mentally incompetent person”, as “a
person with a mental disorder” as defined in s. 1 of the Mental Health
Act, R.S.B.C. 1996, c. 288. Section 1, in turn, states:

“person with a mental disorder” means a person who has
a disorder of the mind that requires treatment and seriously impairs the person’s
ability

(a)        to react appropriately to the person’s
environment, or

(b)        to associate with others;

[15]       
I do not consider that I need to address the factual issues raised by
the parties or the disparity in the evidence of Drs. Joschko and Purtzki. More
importantly, I do not agree with the applicant’s central thesis or with the
structure that the defendants would ascribe to R. 7-2(1), (8) and (9),
respectively, or on how those various rules should be interpreted in
conjunction.

[16]       
I do agree with the starting proposition that under R. 7-2(1) a
party to an action is entitled to examine for discovery any adverse party. That
starting proposition is, however, then modified and circumscribed by several
more specific sets of circumstances. One set of circumstances relates to
parties who are infants. A further, and potentially overlapping set of
circumstances, relates to parties who are mentally incompetent.

[17]       
In Sullivan on the Construction of Statutes, 6^th ed.
(Markham, Ont.: LexisNexis, 2014) at para. 11.2, the author summarizes the
presumption of coherence:

Governing principle. It is presumed that the
provisions of legislation are meant to work together, both logically and
teleologically, as parts of a functioning whole. The parts are presumed to fit
together logically to form a rational, internally consistent framework; and
because the framework has a purpose, the parts are also presumed to work
together dynamically, each contributing something towards accomplishing the
intended goal.

[Footnote omitted.]

[18]       
The author then summarizes the implied exception rule, which is used to
resolve conflicting provisions, at para. 11.58:

Implied exception (generalia specialibus non derogant).
When two provisions are in conflict and one of them deals specifically with the
matter in question while the other has a more general application, the conflict
may be resolved by applying the specific provision to the exclusion of the more
general one. The specific prevails over the general; it does not matter which
was enacted first. In the absence of conflict, a specific provision prevails
over a general one only if applying the general provision would render the
specific one superfluous.

[Footnotes omitted.]

[19]       
In Ottawa (City) v. Eastview (Town), [1941] S.C.R. 448 at
461-462, the majority reviewed the historic sources of the implied exception rule.
More recently, the Supreme Court of Canada applied this interpretive rule in
the context of a textual analysis of the Civil Code, and it noted “[t]he
legislature’s decision to express itself in such detailed and specific language
indicates an intention not to have the rules contained therein undermined by
the application of more general provisions”; Perron-Malenfant v. Malenfant
(Trustee of), [1999] 3 S.C.R. 375 at para. 42.

[20]       
I accept that the implied exception rule will give way in circumstances
where a general provision expressly states that it applies to the exclusion of
a more specific provision; Doré v. Verdun (City), [1997] 2 S.C.R. 862 at
para. 41. This, however, is not the instant case.

[21]       
The implied exception rule has also been applied in the context of the
interpretation of the Rules of Court. In Boleak v. Boleak, 1999
BCCA 776, the court considered an application to vary a Divorce Act,
R.S.C. 1985, c. 3 (2^nd Supp.), custody order pursuant to a
general provision of the Court of Appeal Act, R.S.B.C. 1996, c. 77,
which conflicted with a more specific provision under the former Rules of
Court. At para. 22, Rowles J.A. applied the implied exception rule,
and concluded that the specific provisions in the Rules of Court
overrode the general provisions in the Court of Appeal Act.

[22]       
The opening words to R. 7-2(8), the rule pertaining to infants, are
“[u]nless the court otherwise orders”. These words recognize that there are some
exceptions to the general rule that a party to an action can be examined for
discovery. They recognize that there may be cases where a court is unprepared
to require that an infant attend at discovery.

[23]       
It is noteworthy that each of Rules 7-2(2), (5), (8), (11), (18) and (28),
which deal with examinations for discovery, as well as R. 7-2(16), which
deals with discovery of documents, are similarly prefaced with the words
“unless the court otherwise orders”. Each recognizes that a court has the
jurisdiction or ability to direct that some result, other than the usual result
that is relevant to the particular rule, may be appropriate in the
circumstances before the court.

[24]       
The examination for discovery of mentally incompetent parties is
governed by R. 7-2(9), and it establishes a completely different regime.
The starting premise under R. 7-2(9) is that “the mentally incompetent
person must not be examined without leave of the court.”

[25]       
Both counsel referred to a series of cases decided under R. 7-2(9).
These cases each involved adults who were mentally incompetent, and who the
opposing party was endeavouring to discover. In each case, the court declined,
for various reasons, to allow such a discovery. I do not consider the analysis
in those cases to be particularly helpful in the present circumstances.

[26]       
Based on the structure and language of the Rules that I have referred to,
it is clear there will be some cases that involve infant plaintiffs who are not
mentally incompetent, but where a court, nevertheless, considers it
inappropriate to require that infant to attend at an examination for discovery.
Accordingly, I do not accept that the only circumstance which might, on a
principled basis, prevent the examination for discovery of an infant party is
if that infant is mentally incompetent.

[27]       
The circumstances, where the examination for discovery of an infant
child may not be appropriate will be many and varied. I need not identify all
such factors for present purposes. I consider, however, that they may relate to
the child’s age, ability to understand the truth, ability to express
himself/herself, attention span, and the prospect of undue anxiety on the part
of the child or potential harm to the child.

[28]       
It is worth noting that neither party was able to direct me to a single
authority from this jurisdiction that addressed the intended examination for
discovery of an infant, or the kinds of concerns that might arise from such an
examination. As a practical matter such examinations for discovery are
extraordinary.

[29]       
I consider, however, that some useful guidance is found in Nemeth v.
Harvey (1975), 7 O.R. (2d) 719 (S.C.). That case addressed the intended
discovery of a five year old, under an Ontario Rule that the court described in
the following terms at 720:

Subsection (2) of Rule 331 is
applicable and provides that a child of tender years may be examined if he
understands the nature of the oath, or if he does not understand the nature of
the oath, he is of sufficient intelligence to be examined and, in addition,
understands the duty to speak the truth.

[30]       
The court also said at 720:

I spoke with the child apart from counsel in the presence of
his father. I find that the child manifests the average intelligence of a child
of his years and I have no reason to believe, based on my talk with him, that
he is not truthful. But the Rule calls for more than a conclusion of average
intelligence, since if a finding of average intelligence were the only test,
very few infants could be excluded from examination. It seems to me that before
a child of tender years may be examined it must also be manifest that the
intelligence of a child is such that a reliance can be placed upon answers
which he would give and this quite apart from the question of truthfulness.

The child is now five years of
age. Without going into details of my examination of the child I have come to
the conclusion that he does not meet the test of “sufficient intelligence”
within the meaning of the Rule. The intelligence required under the Rule is, as
I have said, more than average intelligence and it seems to me that the child
must have an awareness of the purpose of the examination, its general meaning,
a general understanding of its significance and of [some] insight into the
importance of what might be said by him on such an examination. The child, in
my opinion, does not manifest the required intelligence under this test.

[31]       
In this case there are a number of circumstances which militate against
an examination for discovery of Jorin being appropriate.

                       
i.        
The Medical Evidence

[32]       
There are significant differences in the conclusions of Drs. Purtzki and
Joschko. Counsel for Jorin also attached various other expert medical-legal
reports, which were prepared in connection with the earlier mediation that I
referred to, to his application materials. Some of those reports are now two to
three years old. Nevertheless, they are of some assistance. The report of Dr. Ho,
a registered psychologist, who saw Jorin in early 2013, approximately when Dr. Joschko
met and tested Jorin, concluded:

Clinical Observations of
from the Intake Interview of Jorin.

The interview lasted for fifteen
minutes. His verbal communication ability indicated that he was socially and
verbally functioning at a much younger age. He jumped from topic to topic.
Verbal communication to gather information about Jorin indicated that he was
unable to answer questions or report about his daily life in a logical manner.
Nevertheless, he was able to report bits and pieces of life that appeared
relevant and important to him. He was worried; scared of the dark and his
awareness of his anger and the impact on others were important pieces of self
understanding. He most probably could understand and has an intuitive sense
that he could not express adequately and words. Given his functioning, the
present psychologist stopped the child verbal intake and moved to a child
friendly assessment.

[33]       
Dr. Ho also concluded that: “Jorin is suffering from Posttraumatic
Stress Disorder and Adjustment Disorder with Anxiety, Depression and Conduct
issues.”

[34]       
Dr. McConnell, a registered psychologist who also saw Jorin in
early 2013, prepared a report that expressed the following conclusions:

What is this child’s
current neurocognitive status?

Jorin’s overall level of intelligence is estimated to fall
within the Borderline range of functioning. When confidence intervals are
considered, his overall score falls within the Mild Intellectual Handicapped
range to the bottom of Low Average range. When teacher and (grand)parent
ratings of his everyday or adaptive behaviors are considered in relation to his
intellectual scores, then the argument for a definition of Mild Mental Handicap
is indicated. That is, his intellectual scores, coupled with very low scores on
the adaptive measures, meet the DSM IV definition of Mild Intellectual
Disability.

Jorin’s neurocognitive challenges were evident across all
cognitive domains assessed. He has a significant language impairment that
affects both his comprehension and expression. Although he performed adequately
(albeit still below age level) on tests assessing his comprehension of single
words or his skill in naming common objects, when he needed to process more
than a few words or needed to explain himself, his language impairment was
obvious.

Jorin’s working memory, attention and executive skills were
similarly impaired and limit what can be asked of him. These deficits, in
combination with his language impairment, undermine his already limited ability
to process information and respond appropriately. Furthermore, Jorin fatigues
easily and when he fatigues, his ability to focus and comprehend deteriorates
further. His already weak behavioral and emotional self-regulation is
compromised even further and he tends to tantrum. Observations of Jorin’s
significantly impaired executive control that were provided by his
caregiver/grandmother and teacher were very consistent with what was observed
in session, on tests, and during school observation.

Memory skills were difficult to evaluate because Jorin was
unable to understand what he was required to do on the memory tasks. Even with
extra support, structure and example, Jorin was unable to complete them.

Speech therapy: Jorin
requires ongoing speech therapy that can help not only with improving the
intelligibility of his speech but also with language comprehension and
communication. He currently has significant problems with both language
comprehension and language expression. Moreover, his poor working memory and
weak attentional focus further undermine his ability to process language-based
material. Although it is difficult to predict his language skills in 10 or even
5 years from now, it is evident at this point in time that communication with
Jorin needs to be at a much simpler level than is typical for his age. That is,
instructions need to be short, direct, simple and often repeated.

[35]       
Dr. McConnell’s report also references various specific scores for
Jorin that arise from various types of focused testing that he had Jorin
undertake. Those results are not consistent with the results that Dr. Joschko
obtained with his testing. Dr. Joschko has, by separate letter dated
October 23, 2014, advanced various potential explanations for the differences
in these results.

[36]       
I do not consider it prudent, appropriate or necessary to draw any
concrete conclusions from such evidence. These are matters that will be
canvassed fully at trial with updated export reports and other evidence. There
is, however, significant support in these and other medical reports for several
of the conclusions that were expressed by Dr. Purtzki in her correspondence.

                     
ii.        
Harm to Jorin

[37]       
I am not particularly concerned with the prospect of harm to Jorin. I
have no doubt that counsel would be exceedingly solicitous and respectful of
Jorin’s age and condition. Counsel for the applicant has said he would conduct
the discovery in an environment that was known to or comfortable for Jorin. The
discovery would be conducted in short segments. Persons known to Jorin, and
with whom he is comfortable, would be present. I also observe that there was no
suggestion, in the reports I reviewed, that Jorin has struggled or been
distressed in any of the many medical examinations that he has attended.

                   
iii.        
The Purpose of an Examination for Discovery

[38]       
I question the possible utility or value of any examination for
discovery of Jorin, particularly in light of some of the medical conclusions I
have identified. It was this issue that I canvassed most fully with counsel for
the applicant.

[39]       
It is generally understood that the central objects of an examination
for discovery are:

i)        to
enable the examining party to know the case it must meet;

ii)        to
enable a party to procure admissions which will dispense with other formal
proof of its case; and

iii)       to
procure admissions which will damage an adversary’s case.

See e.g. Frederick M. Irvine, ed., McLachlin &
Taylor, British Columbia Practice, loose-leaf, 3^rd ed. (Markham:
LexisNexis, 2006) at 7-178.

[40]       
The applicant and other defence counsel accepted that they had no desire
to obtain any “admissions” from Jorin on discovery. Instead, the applicant said
that the “primary reason” for Jorin’s intended discovery related to the first
consideration I identified; that being, to enable the defence to know the case
that it must meet.

[41]       
Respectfully, I struggle to see how this can be so. This is not a case
where the defendants may be surprised by Jorin’s evidence at trial. Jorin will
not be present at the trial. Instead, the whole of Jorin’s case will be
established by expert evidence, of which the defendants will have ample notice,
and through other witnesses. The defendants can examine Jorin’s father and his grandmother
(Jorin’s litigation guardian). They can interview his teachers and his special-needs
assistants. In earlier applications, it became clear that Jorin, who requires
full-time supervision, has had a series of caregivers. These sources are likely
to be far more fruitful and reliable than the examination for discovery of an
infant who, there is reason to believe, without deciding that it is so,
struggles with comprehension, attention and language difficulties.

[42]       
The last basis for an examination of Jorin that was raised by counsel
for the applicant was a desire, in a sense, to see Jorin and how he functions.
There is significant disparity in the existing medical opinions on Jorin’s functionality.
I have referred to some of these differences earlier in these reasons. Other
differences are apparent in the letters of Drs. Purtzki and Joschko, respectively.
Counsel considers that some opportunity to see and interact with Jorin would
potentially be helpful for settlement and other purposes.

[43]       
First, it would appear that a discovery of Jorin would only achieve this
object for the single counsel who conducted the examination for discovery, and
not for the teams of counsel who represent the various defendants in this
action. I cannot imagine that the intention would be to conduct the examination
in the presence of all counsel who are involved in these actions.

[44]       
Second, though I do not question counsel’s expressed goal, I consider
that this object can be otherwise achieved. I suggested to counsel that Jorin
might be videotaped, or that counsel might possibly view Jorin, at a medical
examination, through a glass mirror. Though counsel for Jorin indicated he
would not be opposed to such endeavours, I was also told by counsel for the
defendants that the examining independent medical practitioners might object.
Nevertheless, I consider that with some ingenuity there are far better means
available to get a sense of Jorin and his functionality than a brief
examination for discovery would yield.

[45]       
In all the circumstances, I do not consider that an examination for
discovery of Jorin would be appropriate, and I am unprepared to allow that
examination to take place.

[46]       
Costs are to be in the cause.

“Voith
J.”