Foster v. Chandel, 2013 BCSC 1847

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Foster v. Chandel, 2013 BCSC 1847 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 Counsel for the Plaintiff: D. M. Iverson Counsel for the Defendants: R. P. McLennan Place and Date of Trial/Hearing: Victoria, B.C. September 11, 2013 Place and Date of Judgment: Victoria B.C.

October 8, 2013 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