Lehan v. Awad Estate, 2023 NSSC 382

SUPREME COURT OF Nova Scotia Citation: Lehan v. Awad Estate , 2023 NSSC 382 Date: 20231201 Docket: 495722 Registry: Halifax Between: Claire Lehan Plaintiff and The Estate of Mahmoud Abdul Awad Defendant DECISION Judge: The Honourable Justice Jamie Campbell Heard: November 22, 2023, in Halifax, Nova Scotia Counsel: Charles Ford, for the Plaintiff Christine Nault, for the Defendant By the Court: [ 1 ] What does the word “immediately” mean when used in Nova Scotia Civil Procedure Rule 21.05(2)? The rules do not define the term.

The drafters of the rule presumably believed that common sense had not fled field in the practice of civil litigation. “Immediately” might be accurately, though somewhat tautologically, defined as “in the absence of contrary intention, immediately”. It could mean straight way, right away, without delay, forthwith, at once, promptly, directly, instantly or right now. It stands in contrast to the phrases “in due course”, “within a reasonable time” or “at your convenience”. It implies a degree of urgency. In some contexts, it might mean instantaneously, or close to instantaneously.

It could mean “this second” or “this moment”. In other contexts, or in other circumstances it might mean “as soon as you can, within reason of course”. The word leaves some room for the consideration of context, which is where the admittedly now sometimes suspect concept of common sense comes into play. [ 2 ] This case is a personal injury matter. Ms. Lehan has sued the Estate of the late Mr. Awad who was the taxi driver in whose vehicle she was a passenger when an accident took place. She has alleged that she was injured. The defendant has sought to have Ms. Lehan attend for an Independent Medical Evaluation.

Ms. Lehan is not refusing to participate but will only agree under certain conditions. There is agreement on most of those conditions. There is a dispute about some of them. [ 3 ] The defendant has now brought a motion to compel Ms. Lehan’s attendance for an Independent Medical Examination with Dr. David King. Mr. Ford, counsel for Ms. Lehan, says she will not attend unless the defendant’s counsel, Ms. Nault agrees to provide the report within a specified time after she receives it from the doctor and agrees to provide consequential disclosure, which in his view is Dr. King’s full file on Ms.

Lehan, by a specific time. Ms. Nault says that she will comply with the rule and provide the material immediately. But Mr. Ford is concerned that he and Ms. Nault have different

interpretations of the word. [ 4 ] The defendant has also sought to have Ms. Lehan’s record of billable hours because Ms. Lehan has claimed for lost of past and future earnings and loss of earning capacity. There appears to have been some misunderstanding about the nature of the records sought. The defendant asked for “time sheets”. In the plaintiff’s brief on the motion, Mr. Ford wrote that if the defendant was only seeking the “number of billable hours and non-billable hours that the Plaintiff worked on a daily basis, Ms. Lehan has no issue providing these and we do not need a motion or an order to do so.” Ms.

Nault for the defendant says that was precisely the information being sought. So, there is no need for a motion. The motion is withdrawn. [ 5 ] Mr. Ford, for the plaintiff has sought an order of costs for $500 in favour of his client. He says that two and a half years ago he

made it clear that he would provide summaries showing the billable and non-billable hours worked by Ms. Lehan. He says that it was only when Ms. Nault saw that in his brief that she was willing to withdraw the motion. [ 6 ] The lack of clarity arises not from a refusal of one or the other side to simply state in plain language what the issue was. Neither party seems to have wanted to just say what they meant, or to have wanted to ask what was meant, in plain, simple, and unambiguous language. The evident lack of trust between counsel in this matter goes both ways.

No award of costs will be made. [ 7 ] That leaves the Rule 21 issues. [ 8 ] Nova Scotia Civil Procedure Rule 21 says that a judge can order a medical examination or test. A party who by claim, defence or ground puts their physical or mental condition in issue, may be ordered to submit to an examination. When a medical examination is ordered by a judge the order must include a description of the purpose of the examination and among other things the time, place and date of the examination.

Under Rule 21.02(6) the order may contain provisions requiring the person to deliver documents to the doctor before the examination, the requirement for the doctor to provide the report to the party who obtains the order, by a “deadline”, and the requirement that the party receiving the report deliver a copy of it to each other party by a “deadline”. There is no requirement for the judge to set a deadline. [ 9 ] Rule 21.05 says that the doctor who completes an examination must deliver an expert’s report conforming with Rule 55, to the party who obtains the order.

And the party who obtains the order must “immediately deliver the report to all other parties.” Presumably, if the judge issuing the order has set a deadline for the delivery of the report to the other parties, that deadline would govern, rather than the requirement for immediate delivery in Rule 21.05. If the judge does not set a deadline, then Rule 21.05 would require that the report be delivered immediately. [ 10 ] The drafters of the rule used the word “immediately” rather than setting a specific time to apply in all cases, expressed in minutes, hours, days or months. In this motion, Mr.

Ford, for the plaintiff says that the assurance from the defendant’s counsel, Ms. Nault, that she will comply with the rule is not enough because she has suggested that before sending it on to him, she would want to review it. And when it arrives in her office she may be on vacation or in a long trial. He says that she must agree to a specific time within which she must provide the independent medical evaluation after receiving it from the doctor. [ 11 ] Ms. Nault described that her practice is to send the report to her client and to review it before sending on to the other party.

That would usually happen within a day or two. Ms. Nault acknowledged the obligation to provide the report immediately but noted that immediately was based on whether she was in trial, on vacation or otherwise unavailable. Mr. Ford argues that this is a subjective

interpretation of the word “immediately”, based on counsel’s schedule. He says that he tried to find a middle ground by requiring that the report be provided within 7 days, but that Ms. Nault would only agree to follow the rule as she interpreted it. [ 12 ] Mr. Ford says that “immediately” is a precise and unequivocal word and its ordinary meaning should be applied. It means “without pause or delay” or a more urgent standard than “as soon as is practicable” or “reasonably promptly”. It means the same thing as “forthwith” and implies speed and promptness and the omission of delay. Having provided

definitions of the “precise and unequivocal” word, Mr. Ford says that the plaintiff in this case is seeking clarity on what the term “immediately” means. [ 13 ] Ms. Nault says that she is prepared to comply with the rule and provide the report immediately. She did not want to find herself in a situation where she was unknowingly in breach of her agreement. She gave as an example a situation in which the report was in her email inbox, and she was not aware of it because she was on vacation or in a trial. [ 14 ] The word “immediately” was used precisely because context matters.

If the report arrives while counsel is, for example, out of the office dealing with their own illness or urgent family matters, the requirement for immediate delivery of the report does not demand that they return their focus to the office to make sure the independent medical evaluation is delivered to the other parties. Some lawyers, I am given to understand, take vacations. The report may be delivered, and they may not even know that it is there waiting for some days to be delivered to the other parties. [ 15 ] So again, context matters.

If the report arrives before the lawyer leaves for vacation, the use of the word “immediately” suggests that it should be sent before heading off. If the lawyer is on vacation when the report arrives, that suggests that in most cases at least, it would be a priority upon returning. That may not mean that it is the very first thing done. The rule is drafted in such a way that it demands the consideration of context.

The drafters of the rule did not include a specific time presumably to allow for the kinds of unforeseen circumstances that can arise. [ 16 ] Obviously, the intent is not that the report must be sent to the other parties instantaneously or within seconds. The implication is of urgency. In other words, don’t sit on the report once you have it. Don’t get the report and then go away on vacation. Don’t forget about it. Don’t put it on the bottom of the pile. Don’t send it to your client to review and let them forget about it. In most situations in will be a matter of days.

Sometimes, there will be circumstances where it might be longer than that. In the context of civil litigation that is what “immediately” means. [ 17 ] In this case, Ms. Nault’s obligation is to provide the report immediately. If Mr. Ford is not satisfied that it was done immediately, he can make a motion and seek relief. Which relief will, again, depend on the circumstances. [ 18 ] Consequential disclosure is made under Rule 55. The doctor who does the IME is required to provide the materials that were considered in the preparation of the IME. Mr. Ford says that the entire file should be provided. Ms.

Nault is concerned that the “entire file” may mean something other than the “materials considered by the expert that is in the control of the party”. She is prepared to provide all documents and materials considered by Dr. King when the report is provided. It is not clear to me what materials the entire file might encompass that is not captured by reference to the materials considered by the expert, unless the concern is the phrase “that is in the control of the party”. In this case the defendant has specifically agreed to provide all the materials considered by Dr.

King, to request that he provide them and to follow up with him if there appears to be anything missing. I can see nothing wrong with that proposal. [ 19 ] In this case, it is not necessary to set a deadline. It is not appropriate to provide a definition of “immediately” with a view that it would apply in other cases. If Mr. Ford is not satisfied that the report has been provided with sufficient urgency he can made a motion to

seek relief. [ 20 ] Costs are granted to the defendant in the amount of $500. Campbell, J.