Massey v. Tomich, 2013 BCSC 458

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Massey v. Tomich, 2013 BCSC 458 Date: 20130315 Docket: 10-4602 Registry: Victoria Between: Cameron Brent Massey Plaintiff And: Jenesa Louise Tomich Defendant Before: Master Bouck Reasons for Judgment Counsel for the Plaintiff/Applicant: M. W. Prior Counsel for Defendant: N. Mosky Place and Date of Trial/Hearing: Victoria, B.C. March 14, 2013 Place and Date of Judgment: Victoria, B.C. March 15, 2013 Introduction [ 1 ] The plaintiff seeks an adjournment of the trial in this matter scheduled to commence on April 2, 2013.

The possibility of an adjournment was first raised by plaintiff’s counsel at the trial management conference held March 1, 2013. [ 2 ] For reasons that follow, I have concluded that the application ought to be dismissed. Facts [ 3 ] The plaintiff’s claim relates to injuries allegedly suffered in a motor vehicle accident which occurred on January 11, 2009. Liability for the accident has been admitted. Causation of the plaintiff’s alleged injuries will be the main issue at trial. [ 4 ] At the time of the accident, the plaintiff was resident of Seymour Arms, B.C.

The accident occurred in the Mill Bay area where the plaintiff was looking for work. Following the accident, the plaintiff returned to Seymour Arms and sought medical treatment from his then physician, Dr. Swart. According to the evidence before me, the plaintiff saw Dr. Swart on nine occasions in 2009. [ 5 ] The plaintiff has a complicated medical history. Before January 2009, Mr. Massey was involved in four other motor vehicle accidents and was allegedly injured in all of the accidents. [ 6 ] In or about December 2009 the plaintiff moved from Seymour Arms to the Victoria area.

He has been under the care of two other family physicians since moving to Victoria. [ 7 ] This action was commenced in November 2010. The plaintiff pleads that he suffered soft tissue injury to the low back, shoulders, left hip, buttocks and left leg. Dr. Swart’s clinical records were in the possession of plaintiff’s counsel when the action was commenced. [ 8 ] In terms of post-litigation medical investigations, Mr. Massey was examined by Dr. Alan Bass on February 8, 2012. In his report issued that same day, Dr.

Bass opines that: ... in all probability [the plaintiff’s] present symptoms have been caused or exacerbated by the motor vehicle accident that occurred on the 11 th of January 2009. [ 9 ] After mentioning other unrelated health problems, Dr. Bass further states, “I am at a loss to know what to do with man”. Dr. Bass goes on to recommend treatment at a residential rehabilitation centre but observes that such treatment is not inexpensive. Dr. Bass promises to conduct further treatment investigations and keep plaintiff’s counsel apprised of those investigations. Dr.

Bass also suggests that a functional capacity evaluation might be helpful.

[ 10 ] In preparing his report, Dr. Bass had in his possession the clinical records of Dr. Swart. [ 11 ] On June 18, 2012, the plaintiff was seen by Dr. D. Warren, a neurosurgeon, on a referral from Mr. Massey’s family doctor. A consult report from Dr. Warren is in evidence. Dr. Warren states in that consult report that: At this time this patient does not have any indication for lumbar spine surgery. I am going to make referrals for appropriate nonoperative management which will include a sub-specialized in clinic, rehabilitation physician and extensive physiotherapy. ...

I will not need to see this patient in follow up regarding his current complaints ... [ 12 ] There is no evidence that any of the above treatment was pursued. [ 13 ] The plaintiff saw Dr. Warren again in November 2012. [ 14 ] According to the affidavit sworn by the plaintiff, Dr. Warren made a referral for epidural injections “in an effort to address my ongoing back pain”. [ 15 ] Mr. Massey says that he had not heard anything further from Dr. Warren but “was told that they [the injections] could take one to seven months”.

There is no evidence of any follow-up by the plaintiff to determine when or where this treatment would be pursued. [ 16 ] Dr. Bass’ report was served on the defendant on February 22, 2013, three days past the 84-day deadline under Rule 11-6 (3) of the Supreme Court Civil Rules (“SCCR ”). The defendant objects to the admissibility of the report primarily on the basis of the late delivery. [ 17 ] Plaintiff’s counsel says that he hoped to obtain a further opinion from Dr. Bass but learned at some point (the evidence does not say when) that Dr.

Bass had retired in June, 2012. [ 18 ] The plaintiff has not delivered any other expert reports pursuant to Rule 11-6 (3). [ 19 ] However, in mid-December, 2012, plaintiff’s counsel requested a report from Dr. Swart. The instructing letter makes no mention of the trial date nor any of the report requirements under Rule 11-6(1). Plaintiff’s counsel poses certain questions to be addressed in the report. No response has been received from Dr. Swart but there is no evidence before me of any follow-up by counsel or the plaintiff in that regard. [ 20 ] The plaintiff requests the adjournment so that: a. Dr.

Swart’s report may be obtained; and b. the injection treatments may be undertaken and a prognosis be given after completion of that treatment. Discussion [ 21 ] In opposing this application, the defendant relies on the following authorities: Sidoroff v. Joe (10 December 1992), Victoria CA V1784 (B.C.C.A.); Lister v. Houston (27 May 2008), Vernon 39947 (S.C.B.C.); Wong v. Rempel (9 December 2001), New Westminster M112691 (B.C.S.C.); Abraham v. Guzek (18 November 2008), Victoria 07-1509 (B.C.S.C.); Spiewak v. Sept (3 December 2010), New Westminster M112666 (B.C.S.C.); Chapman v.

Singh (27 April 2012), Vancouver M105820 (B.C.S.C.). [ 22 ] The seminal case of Sidoroff v. Joe sets out the well established test on an adjournment application. That is, the interests of justice must govern whether to grant an adjournment and those interests require a balancing of interests of the plaintiff and the defendant. [ 23 ] Several of the other cases cited by the defendant deal with circumstances similar to the case at bar. [ 24 ] In Lister v. Houston, the plaintiff sought an adjournment of the trial so that she could attend a pain clinic.

The court denied the application noting that, “Often trials proceed before treatment is complete”: para. 11. [ 25 ] In Wong v. Rempel, the court ruled that the objects of the SCCR as set out in Rule 1-3 must be considered on an adjournment application. In particular, the “... issues of proportionality, as well as the public interest in the early and economical resolution of disputes by this court”: para. 12. [ 26 ] Abraham v. Guzek deals with an adjournment application also premised on the plaintiff anticipating pain injection treatment.

The court determined that the basis for the adjournment was not sound and thus “One does not get to balancing prejudice”: para. 3. [ 27 ] In this case, the plaintiff has evidence to present at trial that supports his claim. This is not a case of new information arising from a medical opinion. Nor is this a case where expert evidence suggests the necessity of injections in order to provide an opinion and prognosis. [ 28 ] The plaintiff has had chronic health issues for some time. The evidence suggests that he has been dilatory in following up with

medical practitioners. There is some cause for concern that the injections may never be pursued even if scheduled. [ 29 ] Echoing the comments of Master Keighley in Wong v. Rempel , the interests of justice require a just, speedy and inexpensive resolution to this claim. Justice is served as the plaintiff has evidence upon which he may rely at trial to prove his claim. While Dr. Bass’ report may have been served three days late, I would be very surprised if the plaintiff was not granted leave to rely on that report at trial. In any event, the late delivery and thus potential inadmissibility of Dr.

Bass’ report is not the basis of the adjournment application. [ 30 ] For all of these reasons, the application is dismissed. Costs of the application will be to the defendant in the cause. “C.P. Bouck” Master C. P. Bouck