IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150304

Docket: M124091

Registry:
Vancouver

Between:

Satvinder Singh Bhandal

Plaintiff

And

Daniel Kane
Charlebois

Defendant

Before:
Master Muir

Oral Ruling

In
Chambers

[1]            
THE COURT: This is an application by the defendant to adjourn
the trial of this action presently scheduled for March 16, 2015 for 7 days.

[2]            
The claim arises out of a motor vehicle collision that occurred on April 29,
2011. The plaintiff claims injuries to his head, jaw, neck, shoulders, chest, and
back and he also complains of headaches, depression, difficulty concentrating,
fatigue and sleeplessness.

[3]            
He has been unable to work since the accident. I understand he has
received some wage replacement, but I have no details of that.

[4]            
In 2013, counsel agreed on a seven-day trial commencing March 16,
2015. Discoveries were held in 2014, during which no indication was given by
the plaintiff of any psychiatric problem. The plaintiff said he had not seen a
counsellor for moods, but he did indicate that he thought he would do so in the
future.

[5]            
Shortly before the 84 day deadline, counsel for the plaintiff provided
expert reports from Dr. Cheryl Nagle, a family physician, and Dr. Lee
Rasmusen, a psychiatrist. The primary injury complained of by the plaintiff is
debilitating head pain.

[6]            
The reports of the plaintiff’s family physician and Dr. Rasmusen
clarify for the first time that the plaintiff has apparently suffered from an
undiagnosed bipolar disorder for an extended period of time.

[7]            
Counsel for the defendant takes the position that the late revelation of
this serious psychiatric problem is grounds for an adjournment of the trial. Although
the defendant was offered the chance to have an extension of the time to
provide a rebuttal report to the plaintiff’s experts’ reports, he did not avail
himself of the opportunity to do so. He argues that Dr. Rasmusen’s report indicates
that the plaintiff could benefit from treatment for his bipolar disorder, that
the failure of some treatment that he has undertaken with respect to his pain
is no indication that treatment for his bipolar disorder will also be
unsuccessful. Although Dr. Rasmusen is quite guarded in my review of his report
on the prospects of such treatment.

[8]            
Counsel for the plaintiff pointed out that Dr. Rasmusen’s opinion
was that it would take a minimum of three months before sufficient efficacy
could be established if the proper drug regime or an effective drug regime was
embarked upon, and that full stabilization might take several years. He does point
out, however, that the plaintiff’s symptoms in the past were not so severe that
they prevented employability, and he speculates that the plaintiff might be
able to be employable again.

[9]            
It is this that the defendant argues is a game changer for this case. There
is a significant claim for past wage loss and for loss of capacity. The
defendant says that such a game changing uncertainty will cause prejudice to
the proceeding and with the trial being so close, it would be unfair to the
defendant and overwhelms any potential prejudice or prejudice that the
plaintiff would suffer.

[10]        
The law is not at issue. Both parties referred me to the decision of Munster
& Sons Developments Ltd. v. Shaw et al, 2005 BCSC 1623, where Mr. Justice
Romilly quotes from J.S. (Guardian ad litem of) v. D.S., 2001 BCSC
1534, and ultimately Novak v. Bond, [1998] B.C.J. No. 2034 (B.C.S.C.) at
para. 8:

The question of granting an
adjournment is a matter of discretion, to be exercised in accordance with the
interests of justice. This requires a balancing of interests of the plaintiff
and the defendant: Sideroff v. Joe (1992), 76 B.C.L.R. (2d) 82 (C.A.). The
paramount consideration that must be maintained in the exercise of that
discretion is to ensure that there will remain a fair trial on the merits of
the action: Cal-Wood Door v. Olma, [1984] B.C.J. No. 1953 (C.A.).

[11]        
I gather both parties have experts’ opinions on the head and neck pain
and the experts agree that the pain results from the motor vehicle accident, although
the experts are not in total accord.  It appears the injuries from the motor
vehicle accident and the pain aggravate the bipolar disorder. There is no
suggestion the bipolar disorder exacerbates the pain although I think
I can take judicial notice that depression can be a disabling condition.

[12]        
The plaintiff was quite able to work prior to the accident with his
untreated symptoms of bipolar disorder and likely would have been able to
continue to do so. It is likely, with treatment, that he would be able to
return to work absent the pain. It appears to me that the chronic pain is his
primary disabling issue.

[13]        
The defendant obtained a neurological opinion from Dr. Medvedev. The
complication of bipolar disorder does not affect Dr. Medvedev’s opinion,
which he says is chronic occipital pain. The defendant suggests this was a
guarded or reserved opinion because Dr. Medvedev did not have the benefit
of reviewing the plaintiff’s experts’ reports which disclosed the bipolar
disorder and he felt that there were other conditions at play. Dr. Medvedev
was, however, aware of the potential for a bipolar disorder and that is
disclosed in his report. His opinion is unreserved in that regard.

[14]        
Dr. Medvedev’s opinion was served one month after the 84 day
deadline. The plaintiff’s experts’ reports were served before the deadline in
accordance with the Supreme Court Civil Rules, B.C. Reg. 168/2009.
Had the bipolar disorder diagnosis or the potential of a bipolar disorder
diagnosis been something that would have seriously impacted Dr. Medvedev’s
opinion, I would have expected him to say so. There is no such statement
in his report. There is nothing to suggest that Dr. Medvedev requires or
recommends a psychiatric opinion. There is nothing that suggests that the
resolution of the bipolar issues or the inability to resolve them will in any
way affect his diagnosis of the plaintiff having chronic occipital pain.

[15]        
The plaintiff points out that the defendant was well aware that there
was a psychological component to this problem and that the defendant could have
obtained expert opinions in that regard in a timely way. The pleadings put
psychological matters in issue. Psychological issues were referenced on
discovery, and of course in the plaintiff’s experts’ reports and the report of Dr. Medvedev
of December 18. A response report obviously could have been obtained, but
was not.

[16]        
The plaintiff has been unable to return to work since the accident. He has
suffered significant loss in that regard obviously. He has chronic pain every
day and argues there would be significant and disproportionate prejudice if the
trial is adjourned. The accident was in 2011 and the plaintiff submits that he
is prejudiced every day this is not heard. The trial is unlikely to be able to be
rescheduled until 2017 if the matter is adjourned.

[17]        
On a balancing of the interests that is required here, I am not
satisfied that an adjournment is needed in order to have a fair trial on the
merits. Courts routinely deal with issues of such unresolved contributing
factors to injury and damage and are able to come to grips with them in a fair
way that balances the objects of the system as expeditiously and as
inexpensively as possible. I am satisfied that a balancing of these
interests requires today’s application be dismissed.

[18]        
The plaintiff will have his costs in the cause.

“Master Muir”