Chow v. Hughes

2014 BCSC 739 Chow v. Hughes

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Chow v. Hughes, 2014 BCSC 739 Date: 20140324 Docket: M100428 Registry: Vancouver Between: George Chow Plaintiff And Michael Hughes Defendant Before: Master Baker Oral Reasons for Judgment In Chambers Counsel for the Plaintiff: T.G. Kornfeld Counsel for the Defendant: D. Robinson Place and Date of Hearing: Vancouver, B.C. March 24, 2014 Place and Date of Judgment: Vancouver, B.C. March 24, 2014 [1] THE COURT: Well, first, let me say how refreshing it is to have counsel deal so efficiently and cooperatively. This matter has come essentially by short leave but by agreement so that counsel did not even have to request an order for short leave. Counsel worked that out between them and brought the matter, as I say, on, abridging the time by cooperation. It truly is refreshing and I am glad to see it because I despair of counsel making those phone calls and getting along to do what they have to do in a more efficient way. It is also refreshing to have counsel stay well within their time estimate, tell me everything I think that was possible for them from their respective client's perspective, and to advocate their case so quickly and efficiently. [2] Having said that, this is an application for a second medical examination on behalf of the defence, by Dr. Regan, as Mr. Robinson has correctly said, a well-known and respective

orthopedic surgeon. Dr. Regan did a report in anticipation and preparation for the first trial date which was December of 2012, but was adjourned in October of that year owing to insufficient time set aside. I do not have the exact date of his report, but I believe it was the summer of 2012. [3] MR. ROBINSON: Your Honour, it was actually 2011. [4] MS. KORNFELD: 2011. [5] THE COURT: Oh, thank you, 2011. [6] The gist of -- without, I hope, unfairly summarizing or distilling, but the gist of the defence's position is that it has been three years now, approximately, since Dr. Regan's report and, as a consequence, the second examination is justified. I should also say by way of chronology, the trial date is in July of this year and that the last day for a medical report is, I think, the 21st of April, but just as compelling, today is the last day to notify Dr. Regan of cancellation. Failing that, there will be a $3,000 cancellation fee. [7] Having said all that by way of preamble, I am not going to allow the application. I agree with Ms. Kornfeld that, simply put, the standard has not been met. The cases, in my respectful view, are very clear, have been clear from Master Brandreth-Gibbs' decision in 1999 in Trahan, that is Trahan v. West Coast Amusements that is recorded at 2000 BCSC 691, that is, among other things, a very helpful and oft-repeated case, actually, with the points

and standards established by that case. Some evidence has to be offered to justify the second examination which has a much higher onus than a first examination. I say that fully and freely acknowledging Madam Justice Smith's comments in McKay v. Passmore, paragraph 20, --that decision is reported at 2005 BCSC 570 -- where Madam Justice Smith said: do not find in the authorities a requirement that there be medical evidence supporting an application for a second IME; nor does the Rule fetter the court's discretion in that way. [8] Acknowledged, agreed. Without reading too much into that, I think Judge Smith was saying exactly what she said, which is, "I do not require medical evidence per se." I think the pattern or the practice has grown since then in keeping with Master Keighley's comments, in the case to which I was referred, which is that medical evidence is very helpful, but having said that as a generality and recognizing the growing practice of requiring some medical evidence, there is a specific aspect to this case which, in my opinion, compels medical evidence, let alone any other evidence. [9] At page 60 of the materials, which is page 7 of Dr. Regan's report of June 1, 2011, he says in the third full paragraph: There is no further investigation required in the author's view and there is no surgery anticipated to be required for management of his musculoskeletal

subjective complaints. [10] That is as clear a statement as I think I have seen by a practitioner or an expert where he bluntly says, "Do not need any more investigation." Well, what is sought now is exactly that, further investigation. So, at the very least, there would have to be compelling evidence specifically addressing, if nothing else, that aspect of the evidence before me. There is no medical evidence. Dr. Regan has not been brought back into this. I have nothing from him explaining why he needs to see the plaintiff again. We often do see that in response to a medical report received. I have nothing beyond Mr. Doll's conclusion that he -- and it is not evidence, it is a conclusion on his part in the affidavit -- that he thinks it is necessary to have a further medical examination. [11] Over and over again, the cases have quoted the Court of Appeal and beaten the metaphor to death that the purpose if IMEs is to level the playing field. I agree entirely with Ms. Kornfeld. This is not a playing field that needs leveling. It is already level. By that, I mean reports were all prepared and delivered in a timely way in anticipation of the 2012 trial date. Nothing has changed, basically, except for the delivery of a couple of psychological or psychiatric reports which I find do not bear on the issue before me today. Things have remained static from the experts' and the reports'

perspective since the fall of 2012, but more particularly, the orthopedic perspective has not changed. We have Dr. Regan who says, "I cannot come up with any explanation to " as he puts it, to explain the discrepancy between the objective observations that he has made as an expert and the subjective complaints of the plaintiff. That was followed by the orthopedic report of Dr. Yu, that is Y-u for the record since there is another Yue involved in the case, and that is that. [12] One of the submissions made on behalf of the defence was that the defence has no idea of what the plaintiff's condition is, whether he has had further treatment, how he is doing, that sort of thing. Well, in partial answer to that, Mr. Chow will be examined for a third time, that is, examined for discovery a third time, again by consent, but just as relevantly, in my view, there has been no evidence as to lack of documentary disclosure. If he is getting treatment, surely that would be reflected in medical records. One would think that medical records of Mr. Chow on an ongoing basis would be subject to review and production. [13] I have made a passing reference to various cases, in particular to McKay v. Passmore and Madam Justice Smith's reference to further medical evidence being not necessarily required by the Rules. Paragraph 16 of that case also succinctly states the law: The overriding question is

whether a second medical examination is necessary to ensure reasonable equality between the parties in their preparation of a case for trial [14] That may be a restatement, as I say, of the metaphor of a level playing field, but I just see nothing in this case that suggests to me that there is not "reasonable equality" between the parties in their preparation for the trial, and as a consequence, the application is dismissed. [15] Is there anything further? [16] MS. KORNFELD: Costs. [17] THE COURT: Mr. Robinson? [18] MR. ROBINSON: I have nothing further to add on costs. [19] THE COURT: Thank you. Well, costs will follow the cause. The plaintiff is entitled to their costs in any event of the cause. "D. C. Baker, M."