Gagne v. Armstrong

2020 BCSC 2118 Gagne v. Armstrong

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Gagne v. Armstrong, 2020 BCSC 2118 Date: 20201224 Docket: M09582 Registry: Courtenay Between: Lise-Ann Gagne Plaintiff And Carol Armstrong Defendant Corrected Judgment: The front page of the judgment was corrected on January 19, 2021. Before: Master Dick Oral Reasons for Judgment Re Adjournment Application In Chambers Counsel for Plaintiff appearing by teleconference: S. Allardice Counsel for Defendant appearing by teleconference: A. Young, acting as agent for E. Welle Place and Date of Hearing: Nanaimo, B.C. December 24, 2020 Place and Date of Judgment: Nanaimo, B.C. December 24, 2020 [1] THE COURT: As indicated earlier, if written reasons are required or an appeal is undertaken, I reserve the right to edit them liberally, but I wanted to give you a decision as quickly as possible given the trial date is fast approaching. [2] The defendant seeks an order that the trial currently set for 10 days in Victoria, commencing January 25, 2021, be adjourned. The plaintiff opposes this relief. [3] This action arises from a motor vehicle accident on August 11, 2017, some three and a half years ago. The plaintiff's claim is for damages for personal injury and loss. She alleges as a result of the motor vehicle accident she has suffered whiplash type injuries, a neck injury, contusions, injury to shoulders, right arm, back, and ribs, shock,

and aggravation of sciatica, and other injuries to be determined. The injuries caused her pain and suffering, lost wages, loss of future earning capacities, special damages and expenses. [4] I understand liability has been admitted for the accident. I further understand this is the first trial date that has been obtained in this matter, and there have been no prior requests for adjournments. [5] The plaintiff's list of documents from July 7, 2018 did not contain records for counselling or psychological or psychiatric injury. On August 31, 2020, the defendant requested an updated list of documents. On September 4, 2020, an updated list of documents was provided. There were no psychological, psychiatric or counselling records listed, and the note to the adjustor was not listed. On October 9, 2020, the defence sought an updated examination for discovery. The continuation of that discovery was held November 9, 2020. [6] The defendant received a report from neurologist Dr. Rehan Dost dated August 10, 2020. He noted the plaintiff's current complaints included anxiety and depression. He recommended a psychiatric assessment to deal with those complaints. Dr. Dost indicated the major complaints the plaintiff reported she was suffering from related to the physical injuries she sustained in the accident. [7] On October 30 reports were served on the defendant from the plaintiff. These

included: · two reports from neurologist, Dr. Shahid Gul, dated December 17, 2019 and October 26, 2020; · the report of Dr. Robert Tarzwell, a psychiatrist, dated September 25, 2020; · a functional capacity evaluation and cost of future care report of Andrew Hosking, dated October 27, 2020; · a psycho‑vocational assessment of Dr. Michael Boissevain; · a psychologist report, dated October 30, 2020; and · a pecuniary loss valuation from an economist, Robert Wickson. [8] The September 25, 2020 report of Dr. Tarzwell opines the that plaintiff is suffering from post‑traumatic stress disorder, major depressive disorder, generalized anxiety disorder, somatic symptom disorder, and is entirely disabled from work due to these difficulties. Dr. Boissevain opines that the plaintiff is currently suffering from psychological distress from the motor vehicle accident. [9] In 2019, at her examination for discovery, the plaintiff described her claim of injury as shock, or adrenaline at the scene of the motor vehicle accident. In the subsequent examination of the plaintiff on November 9, 2020, she describes symptoms that affect her everyday life. [10] The plaintiff submits the defendant was put on notice in July 2020 that the plaintiff was suffering from and claiming damages as a result of psychological injuries as Dr. Dost noted her complaints in his report and recommended a report from a

psychiatrist to address those complaints. [11] The plaintiff further submits there was notice given in September 2020 of her psychological complaints as a letter was sent to the ICBC adjustor seeking payment for counselling. The note is not in the list of documents, nor did it appear to have been sent to defence counsel, only the adjustor. [12] The clinical records produced on December 2, 2020 did not include anything related to psychological assistance. [13] At the trial management conference, I understand that there was no discussion about amending the notice of civil claim to claim for psychological injuries. [14] On November 16, 2020, the defendant wrote to the plaintiff to advise that they would be objecting to any of the psychological evidence as psychological issues had not been addressed in the pleadings. [15] On November 12, 2020, the plaintiff indicated they would consent to a late psychiatric medical exam if the report would be obtained by December 18, 2020 so that they could get a rebuttal report in time for trial. [16] I understand the defendant did make efforts to secure a medical examination with a psychiatrist, but they could not get an appointment until January 12, 2021. [17] The plaintiff's position is the adjournment should not be granted, as the defendant did not do what they should have done in order to be ready for trial. The plaintiff argues that as soon

as Dr. Dost indicated that the plaintiff was suffering from anxiety and depression it was incumbent on the defendant to obtain the reports that they felt would be necessary to state their position at trial. [18] The plaintiff claims that the prejudice to her outweighs any prejudice to the defendant as it will increase the costs to her for updated reports, and she will continue to suffer from increased anxiety related to efforts by the defendant to find out more information about other events in her life, and she says all of that is non‑compensable. [19] The parties agree there are numerous factors to be considered on an adjournment application. Navarro v. Doig River First Nation, 2015 BCSC 2173, sets out the principles the court should consider. [20] The paramount consideration for the court in exercising its discretionary power on an application for an adjournment is to ensure there will be a fair trial on the merits. Because the interests of justice must prevail at the end of the day, courts are generous rather than overly strict in granting adjournments, especially where granting the request will promote a decision on the merits. [21] The factors to consider include: an expeditious and speedy resolution of matters on their merits; the reasonableness of the request, and the grounds or explanation for the request; and the potential prejudice to each party An Expeditious and

Speedy Resolution of Matters on their Merits [22] I note this accident occurred about three and a half years ago, this is the first trial date, and the first time an application to adjourn has been brought. The Reasonableness of the Request, and the Grounds or Explanation for the Request [23] I understand and accept the request here is reasonable, the basis being the plaintiff's complaints have entered a completely different realm that include complete disability due to psychological health issues. The Potential Prejudice to Each Party [24] With respect to prejudice we are talking about non‑compensable prejudice. I accept there is prejudice to both parties if the matter is adjourned but find that the prejudice to the plaintiff is primarily compensable. [25] The other considerations include the right to a fair trial, the proper administration of justice, the history of the matter, including deliberate delay or misuse of the court process. [26] The ultimate consideration is securing a fair trial on the merits. I accept that on this matter the only way that a fair trial can be achieved is to grant an adjournment of the trial. [27] The defendant needs to be able to appropriately defend the claims being made. The complaints are now more complex and include psychological and psychiatric issues that affect or impact the plaintiff's current and future losses. The defendant wishes to

obtain a psychiatric report to challenge the plaintiff's claim. I accept that the value and potential complexion of the claim has altered in the last several months. [28] I find the defendant's request is reasonable, and I accept the grounds for the request at this late stage is the fact that they are not in a position to obtain appropriate reports to challenge the reports that were served on them at the 84‑day deadline. [29] I am satisfied on these facts that the prejudice to the defendant in having a fair trial on the merits is significantly greater than the prejudice to the plaintiff if I do not grant an adjournment of this trial. [30] I accept and understand the significant concerns about the plaintiff's emotional health and her financial concerns if an adjournment is granted, but the defendant has a right to mount a proper defence and have a decision made on the merits of the case, and that consideration surpasses the prejudice to the plaintiff. [31] I would urge both counsel to continue to talk about whether or not it would be appropriate to grant an advance in this case. I understand there is wage loss, liability has been admitted, and it would appear to be an appropriate case where an advance could be made available to assist the plaintiff given she is on disability benefits, and still suffering both wage loss and anxiety as a result of this matter. [32] Anything arising from that, counsel? Having heard nothing ‑‑ [33] MR. ALLARDICE: No, Your Honour. [34] THE COURT: Thank you both. [35] MR. YOUNG: No, Your Honour. "Master Dick"