LOUELLA BOURELLE PLAINTIFF (RESPONDENT) - v. -, 2016 SKQB 165

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2016 SKQB 165 Date: 2016 05 06 Docket: QBG 1317 of 2002 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: LOUELLA BOURELLE PLAINTIFF (RESPONDENT) - and - SASKATCHEWAN GOVERNMENT INSURANCE DEFENDANT (APPLICANT) Counsel: Heather J. Laing, Q.C. & Kyle B. Jabs for the defendant/applicant Jonathan S. Abrametz for the plaintiff/respondent ___________________________________________________________________________ FIAT DANYLIUK J.

May 6, 2016 ___________________________________________________________________________ Introduction [ 1 ] This is an application by the defendant SGI. It seeks an order directing the plaintiff to attend for an independent medical examination. The plaintiff resists.

[ 2 ] The application is made in the context of a statutory appeal of SGI’s decision to terminate the income replacement benefit the plaintiff had been receiving. That termination occurred March 15, 2000. The within matter lay dormant for a considerable time but has been reactivated relatively recently. [ 3 ] It must be noted that Mr. Abrametz was not plaintiff’s counsel in the early days of this matter. Decisions made affecting the outcome of this application were not his decisions, but rather those of former counsel. Facts [ 4 ] The facts are not in dispute.

The only evidence adduced on this application was the affidavit of Patti Schwartz sworn March 18, 2016. She is a personal injury representative in the employ of SGI. No affidavit was filed on behalf of the plaintiff. Background [ 5 ] The plaintiff was involved in three motor vehicle accidents - April 8, 1996; April 26, 1996; and April 25, 1998. She alleges she sustained injuries as a result of same. She sought benefits from the defendant pursuant to the provisions of The Automobile Accident Insurance Act , RSS 1978, c A-35 [ AAIA ].

The defendant paid benefits to her for just short of five years (April 1996 to February 2001). [ 6 ] In the spring of 2000 the defendant decided to terminate the plaintiff’s income replacement benefits. The defendant provided her with one year’s advance written notice of the intention to terminate the benefits. This was by way of a letter dated March 15, 2000. In this letter, the defendant’s position was that the plaintiff was now able to perform a substantial portion of her work duties. The defendant’s decision was based on an opinion received from Dr. M. Jutras.

The defendant’s letter also advised the plaintiff of her rights, including the right to appeal. [ 7 ] The plaintiff advised the defendant she wished to have the termination of her income replacement benefit reviewed. She completed the requisite application for review form on May 11, 2000. In that form she advised the defendant that she would be obtaining further medical information and that she did not wish to proceed with the review until she had that information in hand. The review hearing was put off to June 20, 2001. [ 8 ] The plaintiff did not attend the June 20, 2001 hearing at the appointed time.

She attended in the afternoon instead of the morning. The defendant and the plaintiff agreed to a rescheduled hearing date of December 18, 2001. It proceeded. The defendant made a written decision on February 13, 2002, denying the review and upholding the decision to terminate the plaintiff’s income replacement benefit. The within appeal [ 9 ] The plaintiff appealed from the defendant’s review decision. She had a statutory right of appeal. Her previous lawyer served and filed a notice of motion dated May 9, 2002, launching an appeal and filing same with the court.

On the return date of that motion (June 27, 2002) a consent order was presented. Counsel for the defendant and then counsel for the plaintiff (Mr. R. Borden) had endorsed their consent on a draft order on June 25, 2002. In each case the endorsement of consent read “The within Order is consented to as to form and content this 25 th day of June, 2002” [emphasis added]. Justice Allbright granted the consent order. [ 10 ] This order is important to this application, thus the wording of it is reproduced in full: IT IS ORDERED THAT: (

a) A hearing pursuant to Section 198 (2) of The Automobile Accident Insurance Act S.S. 1194, c. A-34 be held in respect of the subject manner ( sic ) in dispute, namely, whether or not the applicant is entitled to income replacement benefits pursuant to the said act ( sic ); (

b) Each of the Parties shall be entitled to production of documents from the other; (

c) Each of the Parties shall be entitled to conduct examinations for discovery; (

d) Either of the Parties may set the matter down for the hearing in accordance with the Queen’s Bench Rules and any applicable practice directive thereunder as it may apply to holding of a trial, and the Queen’s Bench Rules shall apply to any other matter that arises in the action; (

e) All costs of and incidental to this application will be reserved to the judge trying the issues. The delay [ 11 ] An examination for discovery of the plaintiff was held November 26, 2002. She granted a number of undertakings to the defendant. She did not provide replies to all of those undertakings in a timely manner. Between late November 2002

and early spring 2013, virtually nothing happened on this file. Defendant’s counsel wrote to the plaintiff’s prior counsel numerous times, seeking advice as to the status of this matter and seeking full compliance with the plaintiff’s undertakings.

In evidence before the court are letters from the defendant’s counsel to plaintiff’s former counsel dated March 28, 2003; May 8, 2003; August 22, 2003; September 29, 2003; November 26, 2003; January 7, 2004; March 15, 2004; May 20, 2004; July 26, 2004; October 4, 2004; September 14, 2005; October 25, 2005; November 22, 2005; January 26, 2006; and August 8, 2011. [ 12 ] No replies were received. [ 13 ] The plaintiff then changed lawyers. Mr. Abrametz reactivated the file and by mid-March 2013 provided a letter to counsel for the defendant dealing with the outstanding undertakings.

Counsel for the defendant decided to question the plaintiff further, and renewed its examination for discovery of her on March 22, 2013. She granted further undertakings, and Mr. Abrametz had all of those answers to the defendant by March 27, 2014. The parties then negotiated, to no avail, until the end of 2014. Since obtaining carriage of this matter Mr. Abrametz has moved with reasonable alacrity in pushing the appeal forward. The substantial delay cannot be visited upon him. Medical Information [ 14 ] In the early spring of 2015 SGI sought to have this matter proceed to a pre-trial conference.

The plaintiff demurred, stating she was in the process of obtaining new medical information relating to her claim. [ 15 ] As it turned out, the plaintiff had obtained a consultation with and report from Dr. R. Zabrodski of Calgary, Alberta. Plaintiff’s counsel supplied the defendant with this report in mid-August 2015. In response, the defendant requested that the plaintiff undergo an independent medical examination with Dr. H. Sommer in Winnipeg, Manitoba. This request was made by way of letter from the defendant’s counsel dated February 17, 2016. The plaintiff did not consent to attending with Dr.

Sommer, which led to this application. [ 16 ] The background concerning medical information and reports is germane to this application. There is no dispute that the plaintiff was involved in three motor vehicle accidents or that she was injured as a result. The dispute is as to the nature and extent of the plaintiff’s injuries, and whether her injuries and symptoms are attributable to the accidents or other sources.

All of this will, of course, impact upon whether the plaintiff is entitled to income replacement benefits and whether SGI was right or wrong in terminating those benefits effective March 2001. [ 17 ] Initially the defendant relied on the opinions of its medical consultant, Dr. M. Jutras. Dr. Jutras determined that the plaintiff sustained soft tissue injuries. SGI classified those injuries as a “grade 1 whiplash (WAD I and LBP I)”. Dr. Jutras’ report, as well as an underlying report to which he referred, are in evidence.

This report is now over 16 years old. [ 18 ] The plaintiff does not accept the defendant’s categorization of her injuries and symptoms, and alleges they are more serious. She says all of this has had significant negative impact on her health and quality of life. She lists many, many difficulties she feels are attributable to the accidents. [ 19 ] Amongst the medical information the plaintiff has assembled is the Dr. Zabrodski report. He provides his assessment of the plaintiff’s injuries and medical condition but also provides plaintiff’s counsel with a critique of Dr. Jutras’ previous opinion.

The Zabrodski report is in evidence before me. [ 20 ] The defendant now wants to update its own medical information. The defendant is willing to pay the plaintiff for her reasonable expenses in attending upon Dr. Sommer in Winnipeg. The defendant also provided information as to Dr. Sommer’s qualifications. [ 21 ] Although there is no evidence on this point, the plaintiff’s present counsel takes the position that Dr. Sommer testifies only for insurers and the defence, and thus should not be accepted for any independent medical examination.

In addition to this argument on the facts, the plaintiff advances other arguments to resist the order sought. Issues [ 22 ] The issues in this application are: 1. Does the court have jurisdiction to entertain this application? 2. If so, should the application be dismissed because Dr. Sommer is purely an insurers’ witness? 3. Is there a proper basis for ordering an independent medical examination? 4. What is the proper order to make?

Analysis Does the court have jurisdiction to entertain this application? [ 23 ] The plaintiff resists this application on the basis that the court has no ability to order an independent medical

examination. It is emphasized that this is an AAIA appeal, not a traditional personal injury action. It is submitted that the rule authorizing independent medical examinations was designed for parties to such traditional litigation. [ 24 ] I find there is jurisdiction to consider the request for an independent medical examination. [ 25 ] The plaintiff’s position ignores the order of Justice Allbright of June 27, 2002, which of course was a consent order. The parties agreed to conduct this appeal in accord with The Queen’s Bench Rules .

That agreement received the court’s imprimatur through the consent order. [ 26 ] A plain reading of the 2002 order discloses that it was the intent of the parties to conduct this appeal as if it were a regular Queen’s Bench action. I fully appreciate current plaintiff’s counsel was not such at the time of the order.

Nevertheless, the plaintiff is bound by the acts of her prior counsel. [ 27 ] Given that the order states The Queen’s Bench Rules “shall apply to any other matter that arises in the action”, and that the Rules contemplate the ordering of an independent medical examination, it is reasonable to interpret that this was within the contemplation of the parties when the order was executed and granted. [ 28 ] The parties spent a significant amount of time and effort arguing whether the plaintiff’s AAIA appeal is an “action”. In this case, I do not have to decide that point.

Due to the order this appeal is for all intents and purposes to be treated as a classic “action” and therefore is one. [ 29 ] The proper resolution of that issue is debatable. I am mindful of cases such as Terry v Saskatchewan Government Insurance , 2006 SKCA 96 , 285 Sask R 207 , and Lange v Saskatchewan Government Insurance , 2010 SKQB 67 , 352 Sask R 177 , but those cases are factually distinct from the instant case in one critical respect: the consent order governing the conduct of this matter.

I am also aware of the decisions in Kowalczyk v Saskatchewan Government Insurance , 2007 SKQB 44 , 292 Sask R 306 , and Harding v Skopyk , 2014 SKQB 104 , 443 Sask R 26 . [ 30 ] This issue may be decided on another application but for present purposes, my comments would be purely obiter dicta on this application. It is the 2002 consent order that governs the conduct of this matter. The Queen’s Bench Rules clearly apply, and fully apply. As a result, the defendant may seek an independent medical examination. Should the application be dismissed because Dr.

Sommer is purely an insurers’ witness? [ 31 ] Plaintiff’s counsel took the view that Dr. Sommer could not be independent and was therefore an inappropriate selection to conduct an independent medical examination. At para. 4 of his brief, plaintiff’s counsel asserted: A quick search of Canlii ( sic ) reveals “Dr. Hillel Sommer” has been involved as an expert for insurers in eight reported decisions, and never for an insured . SGI has used Dr. Hillel Sommer as their witness in the past (Murphy v.

Saskatchewan Government Insurance 2007 SKQB 238 ). [Emphasis added]. [ 32 ] This position was repeated and somewhat expanded during oral argument. It is suggested Dr. Sommer always appears as an expert witness for defendants or insurers, thus is not objective. [ 33 ] I cannot accept the plaintiff’s position on this point in these circumstances. There are several difficulties with it. [ 34 ] First, there is no actual evidence on this point. To assail the credibility or reliability of a proposed expert, one might reasonably expect an affidavit outlining issues with that expert.

Counsel cannot testify from the lectern. [ 35 ] Second, the results of the “quick search of CanLII ” conducted by plaintiff’s counsel have not been put before the court. Only one of the eight referenced decisions was named. I do not know if those cases were all Saskatchewan cases. I really have no details. There is no way to verify counsel’s assertion given the lack of material. [ 36 ] Third, counsel’s CanLII search must have been quick indeed. Searching his name in the CanLII database for Manitoba reveals that Dr. Sommer has testified for both insurers and insureds. I specifically note two cases: (

a) Stitz v Adam , 2002 MBQB 186 . The plaintiff consulted with Dr. Sommer during the course of his treatment. Dr. Sommer’s report was part of the plaintiff’s case at a

summary judgment application brought by the defendant. (

b) Rey v Forbes , 2004 MBQB 1 , 182 Man R (2d) 26 . The defendant sought an order compelling the plaintiff to submit to an independent medical examination. The plaintiff resisted. Interestingly, one of the defendant’s main arguments was that the plaintiff had seen Dr. Sommer whose opinion on an issue was inconclusive. The defendant wished to have another medical practitioner examine the plaintiff in order to be able to supply information on point. Dr. Sommer had clearly been retained by the plaintiff in this case.

An independent medical exam was ordered. [ 37 ] This is not a case of the court going out to get its own evidence or conducting independent research on a subject. Counsel indicated that a legal search of extant case law had been done, and that eight cases indicated Dr. Sommer had testified only for the defence. Only one of those case names was provided, but the position for the plaintiff was that Dr. Sommer was only an insurance defence witness. In an effort to understand the fruits of that referenced search, regard was had to CanLII, a publicly available legal search engine.

The search results provided to this court are at odds with what the plaintiff asserts as to Dr. Sommer. [ 38 ] It appears Dr. Sommer has been involved in litigation on behalf of both plaintiffs and defendants. I do not know

which side has been served more often by Dr. Sommer. But factually, it cannot be said that Dr. Sommer is always a defence or insurers’expert. [39] Fourth, even if Dr. Sommer did only appear for the defence, the defendant may choose to adopt the risks ofhaving an ostensibly biased expert conduct an independent medical examination. If that is proven true, it could affect qualifications as anexpert or the weight to be placed on the opinion given. Any expert must be able to comply with The Queen’s Bench Rules.

If Dr.Sommer is, at trial, shown to be a shill for the insurance industry, the value of any medical opinion proffered will be treated accordingly.In this regard see Rasmussen v Parmar (1977), (BC SC), 3 BCLR 78 at page 80: The doctor mentioned may well be a defendant’s doctor. The plaintiff’s solicitor, by his affidavit, is undoubtedly unhappy with thisparticular doctor’s diagnoses in other cases but that is something that can be adequately dealt with by counsel at the trial.

If he wants toshow some form of prejudice on the part of the doctor he can demonstrate that on cross-examination. [40] This bare assertion of bias in favour of insurers against Dr. Sommer by the plaintiff is insufficient to support theconclusion that Dr. Sommer is someone unqualified to medically assess the plaintiff. [41] Finally, without some actual evidence or cogent legal arguments, the issue raised by the plaintiff amounts tonothing more than a bare allegation without support.

As Justice Zarzeczny said in Spicer v Van Norman Ford Sales (1998), (SK KB), 176 Sask R 157 (QB) at para 2: The application was also opposed based upon the perceived or argued “defence disposition” which Dr. Fagnou was asserted to have. Thiswas based upon an assertion in the affidavit of the plaintiff referring in turn to the conclusions of certain inquiries conducted into his pastevidence in cases in Alberta. Such assertions are most inappropriate. They are argumentative as opposed to factual and therefore not incompliance with the rules.

I have given no consideration to this argument and dismiss it accordingly. … [42] Additional guidance as to such arguments is found in Gonzalez v Klassen, 2003 ABQB 108, 12 Alta LR (4th)87, and Alladina v Calvo, 2014 ONSC 2550. In Alladina, there was a suggestion that a proposed medical expert was biased, thereforeshould not be allowed to conduct the examination. There was little actual evidence to support the allegation.

This allegation was rejectedby the court, and at para. 40 the following was noted: The Plaintiff in effect asks the motions court to make an advance ruling on a health practitioner's competence or bias based on affidavitevidence from counsel or comments from some courts, without allowing the health practitioner to conduct the assessment as he or shesees fit and having any issues of competence or bias challenged in court at trial on the basis of competing expert evidence.

Such aprocess appears to turn the general approach to the assessment of credibility and competence of an expert witness at trial on its head. [43] Under these particular circumstances, I cannot find that Dr. Sommer’s legal involvement has been such thatthere is no point in such a referral or examination. That is a matter best left for the trier of fact. Is there a proper basis for ordering an independent medical examination? [44] I have already determined that this court has jurisdiction to entertain the defendant’s request.

The next questionis whether SGI has met the remaining requirements to obtain an order for an independent medical examination. [45] Such an order may be made pursuant to s. 36 of The Queen’s Bench Act, 1998, SS 1998, c Q-1.01 and/or Rule5-49. Respectively, these provisions read as follows: 36(1) In an action brought to recover damages or other compensation with respect to bodily injuries sustained by any person, a judgemay order the injured person to be examined by one or more duly qualified medical practitioners who are not being called by a party aswitnesses at the trial of the action.

(2) An examination pursuant to subsection (1) is to be as complete as the medical practitioners consider necessary to ascertain the extentof the injuries alleged to have been sustained by the person being examined, the cause of the injuries and the probable duration of theinjuries.

(3) A person being examined pursuant to subsection (1) shall answer all proper questions posed by the medical practitioners.

(4) The medical practitioners shall make a full report of the examination, file a copy of the report in court and deliver copies to theparties or their lawyers.

(5) One medical adviser for each party may be present during the examination.

(6) No examination shall be made until due notice of it has been given to the parties or their lawyers.

(7) The party who asks for the examination shall bear the costs of the examination, in the first instance, insofar as the costs of themedical practitioners are concerned, but the trial judge may treat those costs as costs in the cause.

(8) On an ex parte application, a judge may order that a medical practitioner who makes an examination pursuant to this

section be calledas a witness at the trial, and a witness called pursuant to that order: (

a) is subject to cross-examination by any party; and (

b) is deemed not to be a witness of any party.

(9) Failure without excuse to submit to examination at the times and places appointed by the medical practitioners is a ground for a stayof proceedings in the action or for a dismissal of the action in the discretion of the judge.

5-49 In an action brought to recover damages or other compensation with respect to bodily injuries sustained by any person, a judge mayorder the injured person to be examined by one or more duly qualified medical practitioners who are not being called by a party aswitnesses at the trial of the action. [46] As well, the cases hold that this court has an inherent jurisdiction to order such an independent medicalexamination. See Fortugno v Wickstrom, 2005 SKQB 53, 259 Sask R 315, and Hayman v Criddle, 2010 SKQB 94, 352 Sask R 251. [47] The plaintiff has repeatedly characterized her examination by Dr.

Zabrodski as an “independent medicalexamination”. It is not such, at least not within the meaning of s. 36 or Rule 5-49. She chose that physician. That is not at the essence ofan independent medical examination. Generally speaking such an examination is conducted at the behest of the defendant or respondentin a proceeding where damages resulting from personal injuries are being claimed. As stated by Laing J. in Foulds v Knox, (Sask QB): It is common knowledge that applications pursuant to the foregoing

section are invariably, if not exclusively, brought by the defendant.It is the only mechanism available in Saskatchewan to have a plaintiff medically examined by someone other than a doctor of theplaintiff’s choosing. [Emphasis added]. [48] Justice Laing also stated that this court clearly possesses discretion to direct which physician shall conduct anyindependent medical examination. The defendant has the right to select the doctor who will conduct the independent medicalexamination, subject to any objections as to qualifications (and none were stated here).

This is not subject to a veto by the plaintiff. [49] The plaintiff also argues it would be “unfair” to force her to go to Manitoba for an independent medicalexamination when she has recently undergone same with Dr. Zabrodski. Again, this misses the point that whatever the assessment of Dr.Zabrodski was, it was not an independent medical examination within the meaning of the law discussed herein. Repeatedly saying it is sodoes not make it so. [50] Based on the evidence before me I conclude Dr.

Sommer is qualified to conduct the requested independentmedical examination. [51] I am also satisfied that the facts and circumstances of this matter militate in favour of conducting an independentmedical examination. I have reviewed all of the evidence as a whole, but note the following which militate in favour of an independentmedical examination: (

a) This matter was commenced in May 2002. After July 2002 virtually nothing happened for some 13 years. (

b) There is neither evidence that the plaintiff is physically or medically unable to go to Winnipeg for an independent medicalexamination, nor unable to travel for any purpose. In fact, her consultation with Dr. Zabrodski was in Calgary. Based on the evidencebefore me the plaintiff is physically able to attend. (

c) There is also no evidence that there are economic impediments to the plaintiff’s travel to Winnipeg. The defendant has offered topay all reasonable travel costs. The plaintiff has not provided any evidence at all, much less evidence that would show hardship or travelrestrictions due to employment duties. (

d) There is no evidence of prejudice to the timely advancement of this matter before the court. There has been significant delay, butit is not attributable to the defendant. The defendant also indicates its intention to proceed with the independent medical examinationswiftly so as not to disturb the pre-trial conference date set for early September 2016. (

e) The plaintiff has obtained a relatively recent medical opinion, one which is certainly new to the defendant. The defendant’smedical opinion is from Dr. Jutras, which is now very dated. (

f) All of this is in the context of visits to a variety of health care professionals over the years. The opinions of these people are notalways consonant with one another. (

g) The plaintiff lists a plethora of symptoms as a result of the various accidents in which she was involved. (

h) Dr. Sommer has Manitoba licensure regarding the practice of medicine. (

i) Overall, I am satisfied that such an examination is required for trial fairness, so as to ensure that the defendant has the fullest andfairest opportunity to deal with the plaintiff’s allegations regarding her medical status at the pre-trial conference and, if required, at thetrial. [52] Finally, the plaintiff invokes a broad policy argument that to grant the defendant’s request would be to open thefloodgates to such applications. It would not. This case does not decide that the statutory AAIA appeal is an “action” in all cases. Thiscase turns on the 2002 procedural order made by consent.

There are no floodgates to open. [53] Based on the material before me I find the defendant has satisfied the criteria to obtain an order that the plaintiffsubmit to an independent medical examination. What is the proper order to make?

[ 54 ] Having concluded that the requested order should be made, the terms must be set out. I am mindful that (as much as possible) care must be taken to preserve the September 2016 pre-trial conference date. It is the court’s expectation that having made this order, both parties will cooperate with both the letter and the spirit of the order to ensure this matter proceeds in an orderly fashion. [ 55 ] Accordingly I make the following order: 1. The plaintiff, Louella Bourelle, shall attend on Dr. Hillel Sommer at A – 2020 Coydon Avenue in Winnipeg, Manitoba for the purpose of receiving a medical examination pursuant to

Section 36 of The Queen`s Bench Act, 1998 , SS 1998, c Q-1.01, Rule 5-49 of The Queen’s Bench Rules , and/or the court’s inherent jurisdiction on the following terms and conditions: (

a) Reasonable prior notice of the date and time of the medical examination shall be provided to the plaintiff; (

b) Dr. Sommer shall be entitled to conduct as full and thorough examination of the plaintiff as he considers necessary in order to opine on, among other things, the extent, cause, and/or duration of her injuries which form the subject matter of this action; (

c) The plaintiff shall adequately answer all proper questions submitted to her by Dr. Sommer, including questions as to the extent, cause, and/or duration of her injuries; (

d) Dr. Sommer shall prepare a written report of his examination of the plaintiff. Copies of the same shall be filed with the court and provided to counsel for each of the parties; (

e) If desired, each party shall be entitled to have one medical advisor present during the examination, the cost of which shall be borne in the first instance by the party requesting such attendance, and thereafter shall be in the cause; (

f) The plaintiff shall provide Dr. Sommer with any written consents that may be required to obtain medical images, reports, and information relating to her injuries which are not currently in the parties’ possession; (

g) Should the plaintiff fail, without reasonable excuse, to submit to the examination, the within action shall be stayed without further order until the examination has been completed; (

h) The costs of the examination shall be borne in the first instance by the defendant, and thereafter shall be in the cause; (

i) The reasonable costs of travel, accommodation, and sustenance incurred in connection with the examination, in an amount to be determined by agreement between counsel for the parties, or, in the alternative, as further ordered by the court, shall be borne in the first instance by the defendant, and thereafter shall be in the cause; (

j) The costs of the within application shall be borne in the first instance by the defendant, and thereafter shall be in the cause; (

k) Either party may bring this matter back before Mr. Justice Danyliuk upon providing the other with 14 days’ notice in the event there is a dispute regarding the terms of the within Order. J. R.W. DANYLIUK