Economou v. Zoppa

2021 BCSC 2182 Economou v. Zoppa

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Economou v. Zoppa, 2021 BCSC 2182 Date: 20211025 Docket: M156012 Registry: Vancouver Between: Deanna Marie Economou Plaintiff And Darren Edward Zoppa Defendant Before: Master Harper Oral Reasons for Judgment In Chambers Counsel for the Plaintiff, appearing via telephone conference: M. Burtini Counsel for the Defendant, appearing via telephone conference: J.S. Sheikhupura Place and Date of Hearing: Vancouver, B.C. October 25, 2021 Place and Date of Judgment: Vancouver, B.C. October 25, 2021 [1] THE COURT: In this personal injury case arising from a motor vehicle accident in 2014, the defendant seeks the following orders: 1) that the plaintiff attend a virtual independent medical examination ("IME") with a neurologist, Dr. Frank Kemble, on October 28, 2021; and 2) that the plaintiff attend a functional capacity evaluation to be conducted by Dr. Christopher Cooke in person on November 3, 2021. [2] Both applications are opposed. The arguments on both sides of this application boil down to an issue of timing. Background Facts [3] The trial is scheduled to commence November 29, 2021. The 84‑day deadline for serving initiating expert reports was September 6, 2021. [4] The defendant seeks these two IMEs as initiating IMEs and not as responsive IMEs. In my view, making such an application after the 84‑day deadline is very

problematic. [5] The plaintiff underwent back surgery and has apparently not had a particularly good outcome. The surgery was performed on March 1, 2021. The prognosis apparently is uncertain, and the plaintiff's neurosurgery expert report suggests that prognosis be postponed until 6 to 12 months following the surgery. Despite that uncertainty, the plaintiff wishes to proceed with the trial, and the defendant also wishes to proceed with the trial. [6] Counsel for the defendant says that these two late IMEs will prevent an application to adjourn the trial and cites Hoang v. Dean, 2021 BCSC 537 in support of that argument. [7] The plaintiff puts forth several arguments in opposition to the IMEs: 1) that the defence has not shown by way of evidence that a physical examination is necessary; 2) there is prejudice to the plaintiff by a late IME because the defendant would have the benefit of the plaintiff's expert reports; 3) the defendant cannot say that it is genuinely surprised by the plaintiff's expert evidence, and 4) if the defendant does have any prejudice by denial of the application, it is minor because the defendant can obtain responsive reports. [8] The 42‑day service deadline of a responding report has been extended by agreement to October 27, 2021, and I leave aside, for present purposes, whether the trial judge would accept responsive reports that are even later. [9] As

I said at the outset, this application is really all about timing. The plaintiff claims in her notice of civil claim back and leg injuries. [10] In 2018, she was examined for discovery, and her evidence was that she was to consult with an orthopedic surgeon. [11] In 2019, the trial originally scheduled for September 16, 2019 was adjourned so that the plaintiff could consult an orthopaedic surgeon. [12] In March 2020, the plaintiff reduced her work hours allegedly due to the back and leg problems. [13] In December 2020, her surgery was cancelled. Obviously, by that point, the plaintiff has opted to go ahead with the surgery. As noted, she had the surgery on March 1, 2021 and, a few days later, plaintiff's counsel informed the defence that the plaintiff had had her surgery (I use the term "defence" because plaintiff's counsel communicated interchangeably with the adjuster and with counsel for the defendant). [14] In June 2021, the plaintiff informed the defence that the plaintiff had had a poor response to the surgery, and she was off work. [15] By the end of July 2021, the surgery records had been provided to the defence. Discussion [16] One of the concerns that I have on this application, among several, is that the court should not sanction a two‑tier approach where the plaintiff serves their initiating reports and the defence then waits and sees whether there is something of

great enough concern to seek an IME. That is not how the rules operate. [17] The defendant could have set up the two IMEs it now seeks well before the 84‑day service deadline and then used the waiting period to determine whether or not to cancel those IMEs. That never happened. [18] I accept plaintiff's counsel's submission that the plaintiff would have agreed to attend the two IMEs suggested before the 84‑day deadline. [19] I agree with the plaintiff that prognosis is often uncertain at trial, and it is not open to the defendant to simply wait and see how the case develops such that if the plaintiff has an unexpectedly poor outcome from surgery, or even if the poor outcome is part of the normal risk of surgery, that the defendant can then decide at the last minute and, in this case, beyond the last minute, whether to seek an IME. [20] I conclude from the evidence that the ICBC adjuster was adopting the wait‑and‑see approach, which is not a principle at play in applications for IMEs. Conclusion [21] It is far too late in the day for these IMEs to occur. I note also that the IME with Dr. Kemble will not be in person. It is a virtual IME, and there is no evidence from Dr. Kemble that he requires the plaintiff in person. Of course, he does not require the plaintiff in person because he is amenable to a virtual IME. [22] If the defendant wishes to tender responsive reports, the

defendant may certainly do so. I do not think the plaintiff should be in a position on this application of accommodating these two very late IMEs, which if granted, in my view, would be contrary to all of the principles of the law that surrounds applications for IMEs. I agree with the plaintiff that this defence strategy should not be rewarded. Costs [23] The issue of costs is very worrisome. I note that in Johnson v. Giblin, 2020 BCSC 2281, Master Muir was satisfied that special costs were appropriate in that case. She said: [6] I can say that [O'Callaghan v. Hensbach, 2017 BCSC 2182] is one example of the frustration that the court experiences with these types of applications. The court has expressed, on many occasions, its frustration with defendants leaving IMEs at the 11th hour and then seeking to invoke the Rules to stampede a plaintiff regardless of convenience, availability, or anything else, to attend on very short notice. That practice, in case it is not clear, is not one that the court condones. And further: [13] Given the dissatisfaction that I have already expressed with these types of applications, in my view this application should not have been brought, and I will award the plaintiff special costs in any event of the cause but not payable forthwith. Just of today, not of the short leave. [24] Special costs are awarded where there is reprehensible conduct. In

this case, I believe that special costs are appropriate. The position of the Insurance Corporation of British Columbia--and I say that advisedly because this application is driven by the decision-making of the ICBC adjuster, or adjusters, from time to time--was simply to sit back, bide its time, and see what evidence the plaintiff produced at the 84‑day deadline, notwithstanding that plaintiff's counsel kept the adjuster up to date on a real‑time basis as to the plaintiff's surgery and the sequelae from that surgery. [25] The defence knew exactly when the 84‑day deadline was and took no steps whatsoever to even provisionally book IMEs that could later be cancelled. That kind of strategy is incomprehensible. The plaintiff has been put to a great deal of inconvenience on this application close to trial. If special costs are needed to change the practice that Master Muir and others, including myself, deplore, then that is what is required. [26] The defendant will pay the plaintiff her special costs of this application in any event of the cause but not payable forthwith. "Master Harper"