Smith v. Scott, 2022 BCSC 1785

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Smith v. Scott, 2022 BCSC 1785 Date: 20220819 Docket: M177552 Registry: Vancouver Between: Craig Patrick Smith Plaintiff And David Scott , David Heath Scott dba Canadian Countertops and Brown Bros. Motor Lease Canada Ltd. Defendants Corrected Judgment: The text of the judgment was corrected at paragraph 40 on October 18, 2022 Before: Master Bilawich Oral Reasons for Judgment In Chambers Counsel for the Plaintiff: R. Fang Counsel for the Defendants: A. Mallek R. Topsy (A/S) Place and Date of Hearing: Vancouver, B.C.

August 19, 2022 Place and Date of Judgment: Vancouver, B.C. August 19, 2022 [ 1 ] THE COURT: The defendants apply for an order that the plaintiff attend a medical examination (“IME”) before Dr. Medvedev on September 8, 2022. Dr. Medvedev is a neurologist. The defendants also seek related relief, including that the plaintiff sign a consent form and answer questions put to him by Dr. Medvedev. They also seek an order that, in the event I do grant leave for the IME, that leave also be granted to serve Dr. Medvedev's report after the 84-day deadline has expired.

That is because the 84-day deadline is today, the date of the hearing. These reasons have been edited to enhance readability. My reasoning and the result have not changed. Background [ 2 ] By way of background, this is a personal injury claim arising from a motor vehicle accident. The plaintiff is claiming damages for injuries allegedly suffered in an accident that occurred on January 26, 2016, in Delta, BC. He alleges injuries including to his neck, shoulders, back, right knee, left index finger, headaches, fatigue, sleeplessness, anxiety, distress and other psychological injury.

The physical injuries are, on the whole, characterized as soft tissue in nature. [ 3 ] There is a trial scheduled for November 14, 2022, for seven days. As noted, the 84-day deadline to delver expert reports is August 19, 2022, which is today. [ 4 ] The defendants have previously served a report of a physiatrist, Dr. Zaki, which will be referred to later in these reasons. That is a fairly recent report. They take the position that the examination by Dr. Zaki does not qualify as an official Rule 7-6(1) examination. They say the plaintiff attended voluntarily.

As such, this is not an application for a second IME, but rather it should be treated as an application for a first IME. [ 5 ] During the hearing, we learned that the plaintiff has served a total of four expert reports on the defendants today. These include a report of an orthopaedic surgeon, or actually three reports from an orthopaedic surgeon, one of which dates back to 2017 and two of which are dated in July 2022. The fourth report is a functional capacity assessment. I did not catch the name of its author, and it is not pertinent for today’s application. I do not have copies of those reports in evidence.

I simply note the specialty and number of reports put forward by the plaintiff. [ 6 ] The plaintiff is a 35-year-old man who lives in Abbotsford. He works as a welder/fabricator and has been with the same company for 15 years. It is described as a physically demanding job, and the evidence indicates that relatively quickly after the accident,

he returned to his job essentially on full duties. [ 7 ] According to Dr. Zaki's report, he has been on a paternity leave of late. That is not related to any disability allegation; that is straight paternity leave. There is an expectation he can return to work once the paternity leave is over, on the same full-time basis. He has ongoing symptomology related to headaches which are the focus of the issues before me today. [ 8 ] In terms of the IME-related history, the plaintiff had a consultation with a treating neurologist, Dr. Madhani, on a referral from his general practitioner, Dr. Parhar.

There clinical notes in evidence which indicate there were consultations which took place. I believe they were in the 2017 time period. I may be a little off on the timing, but it is not critical for purposes of these reasons. There is an indication the plaintiff saw Dr. Madhani on at least two occasions on a referral basis.

Plaintiff's counsel produced a copy of the clinical notes to defendants’ counsel in a relatively timely manner, such that the defendants have been aware of the consult with a neurologist for quite some time. [ 9 ] In terms of the more recent IME activity, on April 28, 2022 defendants' counsel communicated to plaintiff's counsel that they wanted to set up what has been characterized as "IME 1" with an orthopaedic surgeon, Dr. Locht, which was to take place on June 6, 2022. [ 10 ] There was no response from plaintiff’s counsel.

I should note that plaintiff’s counsel that is being referred to in relation to IME requests is not the same counsel who is appearing on the application today. [ 11 ] The evidence is that essentially there was a last-minute notification that the plaintiff would not attend IME 1, given on the day of or very shortly before the IME. This was a one-line declaration that he would not attend, without offering any explanation for why. [ 12 ] Next, “IME 2” was scheduled with Dr. Zaki, a physiatrist. It was set up for July 14, 2022 at 9:00 A.M. That appointment was communicated to plaintiff’s counsel on June 29, 2022.

The plaintiff did attend IME 2, which eventually led to Dr. Zaki's report dated August 4, 2022, which is in evidence before me. Counsel advises that the date of the report is also the date they received a copy of the report and became aware of the recommendations made therein. [ 13 ] There was some suggestion in argument by plaintiff’s counsel that because there is a reference in the instruction letter requesting a phone call in advance of the written report, Dr. Zaki's opinion would have been communicated to defendants' counsel earlier. There is no evidentiary basis supporting that.

In any event, I do not think the difference between the two dates is material for today's purposes. [ 14 ] The diagnosis from Dr.

Zaki is that the plaintiff's clinical presentation is consistent with: (1) whiplash associated disorder, grade 2, affecting the cervical and upper thoracic area, mostly related to soft tissue type injury (myofascial pain) to the neck and right interscapular area, and (2) a chronic post-traumatic headache, most consistent with tension-type headache and a possible element of referred pain from whiplash injury in the cervical area. [ 15 ] There is a passage under the "Prognosis and Recommendation for Further Management" section: Mr. Smith had been symptomatic since January 2016.

The right knee and left index finger symptoms had completely subsided, but he continued to have persistent and residual chronic headaches, neck, and upper back pain. Presentation is consistent with soft tissue type injury in the neck and back and tension type of headache. The documentation indicated that he was responding to management, however the examinee indicated that for the past year or so his symptoms have been constant and he has not noticed much improvement.

While the prognosis for a complete a permanent pain resolution is less likely at this point in his recovery, there is still the potential for improvement with symptom management. It is to be noted that when individuals have been complaining of chronic pain for such long duration, it is important to attempt at interrupting the chronic pain cycle if an etiology is suspected, with the understanding there is likely an element of an upregulation of the nervous system or increased excitation because of the chronic pain experienced.

Management for a similar patient with similar presentation would include utilization of medications for chronic pain, such as Lyrica or Cymbalta. In this case, it seems that propranolol might have been effective in the past in reducing the headache severity and frequency, so reinstating that for a period of a year would be reasonable. I would recommend that he would return to the neurologist for re-assessment and discussion around that. [ 16 ] This is the key passage from the report for purposes of today's application. Defendants’ counsel argues this should be interpreted as indicating there is a gap in Dr.

Zaki's opinion, and his proposal that the neurologist be consulted indicates an IME is necessary to fill it. [ 17 ] The specific gap that has been highlighted today is the recommendation that the plaintiff return to the neurologist for re- assessment and discussion around the recommendation for a further year of the prescription medication, propranolol. Counsel tendered an internet print-out from the drugs.com website indicating it is a beta blocker that is commonly used to treat migraine headaches. [ 18 ] There is no suggestion the plaintiff is experiencing migraine headaches in this case.

His have been characterized as a tension type headache or as most consistent with a tension type headache. I did not see anything in the report or the clinical notes that were drawn to my attention that suggested it was a migraine type headache. Nonetheless, propranolol has had a positive treatment effect in the past. [ 19 ] Continuing the history, shortly after receiving this report, defendants’ counsel scheduled “IME 3” with a neurologist, Dr. Webber, set for August 11, 2022 at her office in Vancouver. This was communicated to plaintiff’s counsel on August 3, 2022.

A request was made that plaintiff’s counsel respond by August 4, but he did not. On August 5, defendants’ counsel sent follow-up communications, which likewise were not responded to. [ 20 ] On August 8, 2022, a legal assistant with the defendants' counsel’s office spoke to plaintiff's counsel and was informed he was still deciding and he would try to confirm attendance or non-attendance later that day. Plaintiff's counsel did not follow up until the morning of August 11, 2022, the day of the scheduled appointment. Once again, he simply said the plaintiff would not attend the IME

with Dr. Webber, without saying why. [ 21 ] Defendants’ counsel then made urgent arrangements to

schedule “IME 4” with Dr. Webber. They were able to secure one on Sunday, August 14, 2022 and communicated this to plaintiff's counsel. They requested urgent confirmation the plaintiff would attend, but there was no response to that. This appointment was not used, as the plaintiff did not attend. [ 22 ] This led to the current effort, which was to set up “IME 5” with Dr. Medvedev, a neurologist. It is described as his earliest available appointment, on September 8, 2022 at his office in New Westminster. [ 23 ] This is a matter came before me as an application for short leave on August 15, 2022.

I granted short leave for the hearing today, which was the earliest date that plaintiff’s counsel was available. [ 24 ] So the difficulties today are that September 8, 2022, the proposed date of the IME with Dr. Medvedev, is just 67 days before the scheduled trial. If I was inclined to grant the requested IME, there would also be a corresponding need for leave to deliver his report late. I do not have a specific date for when a report would be available after the September 8, 2022 examination.

However, defendants’ counsel suggested that application of additional funds would make a more expeditious report possible and it is counsel's intention to pay whatever is necessary to get the report out in as timely a manner as possible. Legal Basis [ 25 ] This application is being made pursuant to Rule 7-6(1). Rule 7-6 — Physical Examination and Inspection Order for medical examination

(1) If the physical or mental condition of a person is in issue in an action, the court may order that the person submit to examination by a medical practitioner or other qualified person, and if the court makes an order under this subrule, the court may also make. (

a) an order respecting any expenses connected with the examination, and (

b) an order that the result of the examination be put in writing and that copies be made available to interested parties of record. Subsequent examinations

(2) The court may order a further examination under this rule. [ 26 ] As noted, the defendants' position is that the IME with Dr. Zaki involved voluntary attendance and does not count as a first examination under Rule 7-6(1). They cite Kenny v. Bateman, 2017 BCSC 900 at paras. 36-44 , for that proposition. They suggest the legal test for this application is less onerous than would be the case if it was a second or subsequent IME was sought. [ 27 ] I have also been referred to Tran v. Abbott, 2018 BCCA 365 , which sets out some of the underlying principles relating to applications for medical examinations. [ 28 ] A useful

summary of applicable principles is found in Justice Gomery's reasons in Gennings v. Lum, 2020 BCSC 1196 at paras. 9-14 : Legal framework [9] Supreme Court Civil Rule 7-6(1) authorizes the court to order an independent medical examination of a plaintiff in a personal injury action. The purpose of an IME is to put the parties on an equal footing with respect to the medical evidence; Tran v. Abbott , 2018 BCCA 365 at para. 32 [ Tran ]; Wright v. Sun Life Assurance Company of Canada , 2014 BCCA 309 at para. 31 .

While an assessment of what steps are necessary to achieve the goal of putting the parties on an equal footing is discretionary, the court must consider the effect of refusing an IME on the conduct of the trial; Tran at para. 40 . [10] The goal of putting the parties on an equal footing does not necessarily require matching expert for expert or report for report; Hamilton v. Pavlova , 2010 BCSC 493 [ Hamilton ] at para. 12 , Gray-Verboonen v. Mandurah , 2019 BCSC 1697 [ Gray-Verboonen ] at para. 15 . [11] The applicant bears the burden of showing that the IME is necessary; Stocker v.

Osei-Appiah , 2015 BCSC 2312 [ Stocker ] at para. 19 ; Rong v. Yelland , 2019 BCSC 2071 [ Rong ] at paras. 9-12 . It is not the law that a second or subsequent IME is only justified in exceptional circumstances; a dictum to this effect in Hamilton at para. 16 was repudiated in Tran at paras. 27-28 . However, it is the case that a further IME is not necessary if it would only serve to bolster an opinion already obtained by the defendant; Gray-Verboonen at para. 15 .

In Stocker at para. 33 , Justice Pearlman stated: [33] A second examination will not be permitted for the purpose of attempting to bolster an earlier opinion of another defence expert.

In meeting the higher threshold for a further examination, the defendant must show that there is some question or matter that could not have been dealt with at the earlier examination. [12] Where the defendant has already obtained an IME or IMEs and the question is whether a further IME should be ordered, the court must assess the questions already addressed, the differing specialities of the assessors, and the often uncertain path taken in the development of a differential diagnosis in a difficult case; Kim v. Lin , 2010 BCSC 1386 [ Kim ] at paras. 21-27 .

[13] In every case, the court must consider whether the IME sought is proportionate having regard to the magnitude of the plaintiff’s claims and complexity of the medical issues; Kim at paras. 33-35 . [14] The court must also consider whether the application is brought in time to permit admissible evidence to be adduced by the defendant at trial without undue prejudice to the plaintiff; Vermuelen-Miller v. Sanders , 2007 BCSC 1258 at paras. 47-48 ; Hamilton at para. 15 . It is common ground that timeliness is not a concern in this case.

Analysis [ 29 ] There was considerable argument about the necessity for the requested IME. The defendants say there is a significant gap note in Dr. Zaki's opinion, who has identified an ongoing treatment issue with propranolol and has recommended a prescription for a period of at least a year and suggested that the plaintiff return to the neurologist for re-assessment and discussion around that. [ 30 ] There was disagreement about whether the reference to the neurologist was an invitation to seek a second opinion from any neurologist or simply a reference to Dr.

Madhani, the treating neurologist who originally prescribed propranolol. Plaintiff’s counsel suggests this is simply a recommendation that the plaintiff have a follow-up with the treating specialist to address ongoing use of medication to manage headache symptoms. [ 31 ] There was also considerable argument regarding who is responsible for the timing of this application. There is much history in terms of efforts to

schedule an IME, with the defendants emphasizing plaintiff’s counsel’s non-responsiveness and last-minute responses. He has essentially left it to the day of scheduled IMEs to advise whether the plaintiff was going to attend various appointments and has been non-communicative regarding the rationale for not attending. He has not offered any insight as to whether he was taking the position that proposed IMEs involved overlap or the plaintiff simply had a scheduling problem that day, but was willing to attend at another time. Defendants’ counsel says this is a contributing factor to the delay in getting Dr.

Zaki's report and his identification of the need for a neurologist consult. [ 32 ] Plaintiff’s counsel emphasizes that defendants’ counsel has been aware of the consulting neurologist, Dr. Madhani, being involved in treating the plaintiff since about 2017. They emphasize that the defendants’ request for an IME involved an orthopaedic surgeon, not a neurologist. When the second IME request with Dr.

Zaki came along, that again was a request not for a physiatrist rather than a neurologist. [ 33 ] I was not really provided an explanation as to why the defendants chose to change from their original election of an orthopaedic surgeon for the first IME request to Dr. Zaki for the second. The selection of Dr. Zaki was presented being based on him having considerable experience in and being able to address the neurological aspects of the plaintiff's condition. I was taken to various passages in Dr.

Zaki's report which confirm he did address the neurological aspects and the headache aspects of the plaintiff's injuries in considerable detail, which ultimately led to the recommendations highlighted earlier in these reasons. [ 34 ] The defendants argue that the identification of the prescription medication-related gap first came to their attention as of August 4, 2022 and they acted expeditiously to try and arrange a neurologist IME. They say their efforts cannot be criticized in the circumstances. [ 35 ] There are a couple aspects to this.

One is the argument about this being the first Rule 7-6 IME, as opposed to a second IME, and the suggestion that a different legal standard applies. I acknowledge there is pre- Tran case law that suggests a different standard applies.

See in particular, Kenny . [ 36 ] Balanced against that is the reality that we are dealing with an application which contemplates the proposed IME take place well after the 84-day time limit, which will make it necessary for there to be an abridgment of the 84-day deadline if any report arising from that examination is to be tendered at trial. [ 37 ] I was not directed to any specific authorities on how the court is to exercise its discretion to abridge the 84-day deadline. Over the lunch break, I found Justice Veenstra’s reasons in Hoang v.

Dean , 2021 BCSC 537 at paras. 34-37 : 34 The court has jurisdiction to reduce the time for service of expert reports pursuant to Rule 11-6(3), in which the words "unless the court otherwise orders" qualify the 84-day deadline. In exercising that jurisdiction, the court should have regard to the principles applied under Rule 11-7(6) when a late-delivered report is tendered at trial: Usmon v. Masi , 2020 BCSC 958 at para. 6 .

In Usmon , Justice Riley commented that: [7] Of particular note is Rule 11-7(6)(c), which gives the court at trial the residual discretion to admit a report despite non-compliance with the service requirements where "the interests of justice require it". In Maras v. Seemore Entertainment Ltd. , 2014 BCSC 1109 , Mr. Justice Abrioux, as he then was, explained that the "interests of justice" are not properly invoked "to simply excuse or ignore" the requirements in the Rules . Rather, there must be compelling reasons justifying the "extraordinary step" of abrogating the service requirements.

In my view, the same analysis is appropriate in considering whether the court should exercise its discretion to abridge the 84-day service requirement in advance of the trial under Rule 11-6(3). 35 In Usmon , the completion of expert reports had been delayed as a result of the Covid-19 pandemic, and Justice Riley granted an order abridging the deadline. 36 A different result obtained in Balingoay v. Dhindsa , 2018 BCSC 2307 . In that case, the defendants claimed to have attempted to arrange an IME in a timely manner, but the plaintiff had failed to respond as to available dates.

Justice Matthews commented at para. 15 that the usual process in British Columbia is for the defendant to suggest dates and advise the plaintiff of the doctor to conduct the IME, then negotiate any appropriate terms, leaving sufficient time if agreement is not reached for an application to be brought. Thus: [17] Accordingly, if a party seeks an IME for a report to be served as a primary report at least 84 days before trial, that party must start

planning for the IME with enough time to identify the examiner, propose dates, deal with any conditions, make an application, if necessary, before the IME which itself must be conducted with enough time for the examiner to conduct the examination and complete the report. 37 In Balingoay , the plaintiff was notified of the proposed IME less than a week before it was scheduled, and the IME appointment was only 9 days prior to the 84-day deadline.

Justice Matthews concluded, at paras. 33-35 that: [33] There is a compelling case for the defendants' application for an IME on the equal-footing basis. [34] The late delivery of the defendants' report is more problematic. The defendants seek to address this by agreeing to abridge the time for the plaintiff's rebuttal report, if any, to the report the defendants seek to serve late by the same amount of time that they seek to have abridged. That would mean that the rebuttal report would be served at the opening of the trial.

In my view that is the antithesis of the objectives of the purpose of the rules pertaining to timelines as described by the Court of Appeal in Tran . The parties would not have the time before trial to understand each other's cases, let alone engage in meaningful settlement and avoid trial by ambush. [35] The defendants have not offered any acceptable reason for their delay in seeking the first IME, the second IME or in bringing this application. The first delay is manifestly unacceptable, and the second and third in light of the first delay are baffling.

The only explanation is that the defendants have chosen to delay and now seeks to avoid the natural consequences of their actions. [ 38 ] So, I have to balance the argument that there is lower legal threshold to get a first IME with the fact that the requested examination and delivery of the report would occur after the 84-day deadline has passed. [ 39 ] Abridging the 84-day deadline requires an exceptional reason. In this case, what it comes down to is looking at the rationale for why an examination with a neurologist is sought. The defendants say there is a “gap” identified in Dr.

Zaki's report, namely, his suggestion that the plaintiff return to the neurologist for re-assessment and discussion around continuing use of propranolol. How I read that paragraph in Dr. Zaki’s report is that there is a low possibility of full recovery from the chronic headache condition and his focus is on pain management and interrupting the chronic pain cycle. [ 40 ] The question is whether this indicates a gap that warrants a late IME with a neurologist? I interpret Dr. Zaki's recommendation as a recommendation to consult the treating neurologist (Dr. Madhani) to confer about Dr.

Zaki’s recommended course of pain management using propranolol. This is a relatively narrow ongoing treatment point rather than a broader indication that Dr. Zaki feels there is a gap in his ability to opine on the neurological aspects of the plaintiff's injury. [ 41 ] From the broader selection of passages I was taken to in Dr. Zaki's report, it is clear he has given a broad analysis of most of the physical injuries and the neurological sequelae that the plaintiff is still experiencing.

He has characterized the latter as being a post- traumatic headache, consistent with tension-type headache and a possible element of referred pain from whiplash injury in cervical area. That does not indicate he is professing inability to address a significant issue. He has simply identified a course of treatment through extension of a medication he is prescribing which has proven to be successful in moderating the plaintiff’s pain in the past.

He is suggesting the plaintiff follow up with “the neurologist” as part of the pain management plan he is recommending. [ 42 ] This does not indicate there is a substantial gap that requires a separate neurologist IME. In argument, plaintiff's counsel took me to passages from Dr. Madhani's notes which indicate that her conclusions about the plaintiff's injuries line up closely with what Dr. Zaki has concluded regarding the nature of the plaintiff’s injuries. [ 43 ] If I had been satisfied that there was a substantial gap in the opinion that Dr.

Zaki provided – that a different area of expertise was needed to analyze the plaintiff's injuries and something substantial he was missing, I would have been inclined to allow a late IME. [ 44 ] Defendants’ counsel advised that they had specifically selected Dr. Zaki because of his ability to opine on the neurological aspects of the plaintiff's injuries. He has done that. He has made recommendations, and I simply do not perceive there to be a gap that would make it necessary or appropriate to allow a late IME in order to even the playing field as between the plaintiff and the defendant.

Conclusion [ 45 ] I dismiss the defendants’ application for an IME with Dr. Medvedev; specifically paragraphs 1, 2, and 4 of the notice of application filed August 15, 2022. [ 46 ] On costs, I will let counsel advise what their positions are, but I will tell you my inclination is to say parties bear their own costs, because I think that this was an unfortunate application that was contributed to in substantial part by plaintiff counsel's lack of timely response to IME requests.

And it is frankly a disturbing part of this whole situation, but I will invite you to persuade me otherwise. (Submissions re costs) [ 47 ] THE COURT: Thank you. I am going to stick with my initial inclination, which is to say parties will bear their own costs of today's application. “Master Bilawich”