Lam v. Lifemark Health Corp.

2023 BCSC 1782 Lam v. Lifemark Health Corp.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Lam v. Lifemark Health Corp., 2023 BCSC 1782 Date: 20231013 Docket: S226921 Registry: Vancouver Between: Leung Wai Lam Plaintiff And Lifemark Health Corp. aka Lifemark Health Management Inc. aka Lifemark Health Inc., Ken Henderson, Vanja Mudrinic, Lori Nishi, Anne Marsden, John Joffe, Andrew Huber, Lorna MacDougall, Tim Hunt, Tracy Krahn, Jenny Leard, Canadian Back Institute Operating Limited Partnership aka CBI Health, Ognjen Dukic, Yvonne Lynch, Physiomoves Physiotherapy Clinic, Tiphanie Ge, Susan MacLennan, Tai McLavy, M. Dunn, Prab Dhaliwal, Geoff Gordon, Workers' Compensation Board of B.C., Workers' Compensation Appeal Tribunal and Ellen Riley Defendants Before: The Honourable Mr. Justice Milman Reasons for Judgment The Plaintiff, appearing in person: L. Lam Counsel for the Defendants, Lifemark Health Corp. aka Lifemark Health Management Inc. aka Lifemark Health Inc., Anne Marsden, Tim Hunt and Tracy Krahn: R. Bacha Counsel for the Defendants, Ken Henderson and Yvonne Lynch: V. Pierce Counsel for the Defendant, Vanja Mudrinic: L. Karr Counsel for the Defendant, Lori Nishi: R. Allsup Counsel for the Defendants, John Joffe and Michael Dunn: A. Taggar Counsel for the Defendant, Andrew Huber: E. Grant Counsel for the Defendants, Canadian Back Institute Operating Limited Partnership aka CBI Health and Physiomoves Physiotherapy

Clinic: D. Reid Counsel for the Defendant, Ognjen Dukic: K. Graham Counsel for the Defendant, Tiphanie Ge: H. Bromley A. Benzinger Counsel for the Defendants, Susan MacLennan, Tai McLavy, Prab Dhaliwal, Geoff Gordon and Workers' Compensation Board of B.C.: J. Goosen K. Brar Counsel for the Defendants, Workers' Compensation Appeal Tribunal and Ellen Riley: T. Martiniuk Place and Date of Hearing: Vancouver, B.C. September 15, 2023 Place and Date of Judgment: Vancouver, B.C. October 13, 2023 Table of Contents I. Introduction.. 4 II. Factual Background.. 4 A. The Accident and Associated WCB Claim.. 4 B. Initial Treatment and Evaluation. 4 C. Review Applications and Appeals (Round 1) 7 D. Adjudication of the Shoulder Injury Claim and the Associated Review and Appeal (Round 2) 8 E. Calculating the Revised PPD Pension Amount and the Associated Review and Appeal (Round 3) 8 III. This Action.. 9 IV. The Defendants' Applications. 9 V. Discussion.. 10 VI. Disposition.. 14 I. Introduction [1] In this action, the plaintiff, Leung Wai Lam, seeks damages that are alleged to flow from a workplace injury he sustained on October 31, 2012. There are numerous defendants, all of whom were involved in the handling or adjudication of his associated claim for benefits under the Workers Compensation Act, R.S.B.C. 2019, c. 1 (together with its predecessor, the "Act"), or the treatment he received

through that process. [2] The defendants who have been served and responded to the claim now apply to have the claim struck under Rule 9-5 or summarily dismissed under Rule 9-6 of the Supreme Court Civil Rules on the basis that the claim is barred by statute and otherwise devoid of merit. There are twelve such applications before the court. [3] For the reasons that follow, I have concluded that the applications should be allowed and the claim struck in its entirety, without leave to amend. II. Factual Background A. The Accident and Associated WCB Claim [4] Mr. Lam was injured on October 31, 2012 when he fell from a ladder while working as a carpenter (the "Accident"). On the following day, November 1, 2012, he applied to the defendant, Workers' Compensation Board ("WCB") for benefits under the Act. On November 9, 2012, WCB approved the claim in respect of injuries described as "trunk/lumbar spine contusions and right foot/ankle sprains/strains", and accordingly began paying Mr. Lam temporary total disability benefits. B. Initial Treatment and Evaluation [5] WCB arranged for Mr. Lam to receive physiotherapy from the defendant, Tiphanie Ge, a physiotherapist who was then with the defendant, Tyler L. Dymont Physiotherapist Corporation, doing business as Physiomoves Physiotherapy Clinic. Mr. Lam attended a number of sessions with Ms. Ge from December 3, 2012 to January 25, 2013, at

which point Ms. Ge informed WCB that she did not believe that further sessions would be of assistance to Mr. Lam. [6] WCB next referred Mr. Lam to the defendant, CBI Health LP ("CBI") for an Occupational Rehabilitation 1 Program ("OR1"). The OR1 focused on strength and conditioning exercises along with work simulation tasks, education and physiotherapy. Mr. Lam attended OR1 sessions with CBI from January 30 to March 5, 2013, receiving services provided primarily by the defendants Yvonne Lynch (a physiotherapist) and Ognjen Dukic (a kinesiologist), who were then with CBI. In March 2013, Mr. Lam was discharged from the OR1 as fit to return to work with limitations, and additional rehabilitation was recommended. [7] In March 2013, WCB referred Mr. Lam to the defendant, LifeMark Health Management Inc. ("LifeMark") for an Occupational Rehabilitation 2 Program ("OR2"). The OR2 focuses on functional exercises, improving functional tolerances to work demands, and providing education on posture, anatomy and pain management. Mr. Lam attended OR2 sessions with LifeMark from March 11 to April 18, 2013. Mr. Lam received services at LifeMark through its employees, the defendants Ken Henderson (a physiotherapist), Vanja Mudrinic (a clinical counselor), Lori Nishi (a kinesiologist) and Anne Marsden (an occupational therapist). [8] Mr. Lam was discharged from the OR2 following the discovery

that he had a lumbar compression fracture (the "Spine Injury"). [9] Following the discovery of the Spine Injury, the defendant, Sarah MacLennan, who was then Mr. Lam's case manager at WCB, referred him to the defendant, Dr. Michael Dunn for an opinion. Dr. Dunn was a family physician who was then on contract with WCB to provide medical advice on such matters. [10] On April 18, 2013, Dr. Dunn rendered an opinion to the effect that the Spine Injury was likely related to the Accident but was not large, did not cause any neurological problems and did not require further treatment. Relying on Dr. Dunn's opinion, WCB accepted that the Spine Injury was causally connected to the Accident, so as to entitle Mr. Lam to benefits under the Act in relation to it. [11] WCB next referred Mr. Lam to the LifeMark Pain and Medication Management Program ("PMMP"). He was treated there by the defendants, Dr. John Joffe (a family physician), Andrew Huber (a clinical counselor), Lorna MacDougall (a clinical counselor), Tim Hunt (a physical therapist), Tracy Krahn (an occupational therapist) and Jenny Leard (a kinesiologist). In an assessment report dated May 15, 2013, the team concluded that Mr. Lam had chronic lower back pain. [12] Mr. Lam was discharged from the PMMP on June 25, 2013, on terms that recognised that he had ongoing limitations. [13] On June 27, 2013, Dr. Dunn rendered an opinion that

Mr. Lam was likely at his maximum possible state of recovery. In light of that opinion, on July 4, 2013, WCB decided that: a) Mr. Lam's injuries had either resolved or reached maximum recovery; b) his chronic back pain was a permanent condition; and c) he would be unable to return to his pre-injury job for those reasons. (collectively, the "Permanent Conditions Decision"). [14] In light of the Permanent Conditions Decision, WCB referred Mr. Lam to a vocational rehabilitation program. WCB's initial conclusion was that Mr. Lam could be retrained to re-enter the workforce as an insurance, real estate or financial broker. [15] Having made those findings, WCB was required under the Act to assess Mr. Lam's degree of impairment. Because his impairment was less than total, he was deemed to be entitled to a permanent partial disability ("PPD") pension. [16] At the time, claimants in Mr. Lam's position had to show that there were "exceptional circumstances" to justify having their PPD pension benefits calculated based on the their loss of earnings, as opposed to their degree of loss of function (as of January 1, 2021, the legislation was amended so as to entitle such claimants to have their benefits calculated according to the formula that yielded the higher result, regardless of whether the circumstances were seen to be exceptional or not). [17] By letter dated August 13, 2013, WCB

informed Mr. Lam that it had concluded that no exceptional circumstances were present and therefore that his benefits would be determined on a "loss of function" basis. In a subsequent decision dated September 6, 2013, WCB assessed that figure at 2.5% and began paying him a PPD pension accordingly. [18] In October 2013, WCB refused to approve further physiotherapy for Mr. Lam on the basis that he was believed to be at his maximum level of recovery and his chronic pain was believed to be permanent. C. Review Applications and Appeals (Round 1) [19] Mr. Lam sought review of these decisions to WCB's Review Division, as permitted by the Act. In a decision dated January 31, 2014, the Review Division: a) upheld the Permanent Conditions Decision, the evaluation of his degree of loss of function and the denial of further physiotherapy services; and b) overturned the vocational plan calling for Mr. Lam to be retrained as an insurance, real estate or financial broker. [20] The effect of that decision was to render it necessary to develop a new vocational plan for Mr. Lam, which meant that his loss of earnings would also need to be re-evaluated accordingly. The Review Division therefore referred the matter back to WCB to reconsider his PPD pension entitlement on that basis. [21] On February 26, 2014, WCB decided to issue a new vocational rehabilitation plan for Mr. Lam, this time with the

target occupation of retail sales. The Review Division upheld that decision on July 30, 2014. [22] Mr. Lam appealed those Review Division decisions to the defendant, Workers' Compensation Appeal Tribunal ("WCAT"), as permitted under the Act. In a decision dated August 22, 2014, WCAT upheld the earlier decisions of the Review Division. D. Adjudication of the Shoulder Injury Claim and the Associated Review and Appeal (Round 2) [23] So matters stood for the next five years. In 2019, Mr. Lam approached WCB again, this time seeking to have it accept a recently discovered right rotator cuff rupture (the "Shoulder Injury") as also having been caused by the Accident. Mr. Lam's caseworker at WCB at the time was the defendant, Tai McLavy. [24] In a letter to Mr. Lam dated April 26, 2019, WCB informed him that it was denying his request, citing the previous decisions of WCB and WCAT, the long period of inactivity and an intervening motor vehicle accident. The letter was signed on behalf of WCB by the defendant, Geoff Gordon. [25] Mr. Lam's application for review of that decision was dismissed by the Review Division on October 18, 2019. The review officer was the defendant, Prab Dhaliwal. [26] Mr. Lam's subsequent appeal of that decision to WCAT was refused in a decision issued on October 16, 2020, by the defendant Ellen Riley, then Vice Chair of WCAT. E. Calculating the Revised PPD

Pension Amount and the Associated Review and Appeal (Round 3) [27] On March 29, 2021, WCB revisited Mr. Lam's PPD pension entitlement based on his new vocational plan to become a retail sales assistant. This time, his entitlement was calculated on the basis of his loss of earnings (the legislation having since been amended to remove the requirement that he show exceptional circumstances to justify having the calculation done on that basis). Accordingly, Mr. Lam was found to be entitled to a PPD pension of $2,765.88 per month. [28] That calculation was subsequently upheld on review by the Review Division and then again on appeal to WCAT, in decisions rendered on August 16, 2021 and April 11, 2022, respectively. III. This Action [29] Mr. Lam commenced this action on August 30, 2022. On September 11, 2022, he filed an amended notice of civil claim (the "ANOCC") in response to these applications. [30] In summary, the ANOCC alleges that: a) the Shoulder Injury was caused by the Accident, and the defendants knew this to be so; b) the Spine Injury did not resolve and still requires treatment; c) the treatment he received from the defendants for the Spine Injury and the Shoulder Injury did not help, but rather made his condition worse; d) the defendants who diagnosed his condition did so incorrectly and lacked the requisite qualifications; e) the defendants have refused to accept the

true extent of his injuries; f) the defendants falsified evidence in order to harm him or for their own profit; and g) the Review Division and WCAT decisions were wrongly decided. [31] Based on those and related allegations, the ANOCC appears to advance causes of action in negligence, conspiracy and misfeasance in public office, although none of these are clearly pleaded. IV. The Defendants' Applications [32] In their applications, the defendants seek one or more of the following orders: a) striking the ANOCC in its entirety under Rule 9-5(1) as disclosing no reasonable claim, or as unnecessary, vexatious, embarrassing and an abuse of process; and b) dismissing the claim under Rule 9-6(5) as disclosing no genuine issue for trial. [33] Mr. Lam opposes the applications on the basis that, in his submission, the allegations set out in the ANOCC are true. He has adduced an affidavit in response to the applications in which he repeats the allegations contained in the ANOCC and attaches as exhibits many of the documents that the defendants have produced to him through the discovery process. V. Discussion [34] Rule 9-5(1) and (2) state as follows: (1) At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of a pleading, petition or other document on the ground that (a) it discloses no reasonable claim or defence, as the case may be, (b) it

is unnecessary, scandalous, frivolous or vexatious, (c) it may prejudice, embarrass or delay the fair trial or hearing of the proceeding, or (d) it is otherwise an abuse of the process of the court, and the court may pronounce judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs. (2) No evidence is admissible on an application under subrule (1)(a). [35] In Green v. Proline Management Limited, 2017 BCSC 1656, Adair J. conveniently summarised the test to be applied under those provisions as follows: [34] The test for striking a claim as disclosing no reasonable claim under Rule 9-5(1)(a) is whether it is "plain and obvious," assuming the facts pleaded are true, that the claim discloses no reasonable cause of action, has no reasonable prospect of success, or if the action is "certain to fail." If there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat." No evidence is admissible on an application under Rule 9-5(1)(a). [35] The rule that material facts in a notice of civil claim must be taken as true does not mean that allegations based on assumption and speculation must be taken as true. Allegations in pleadings should not be weighed as to their truth, but it is not fundamentally wrong to look behind allegations in some cases, and it may be

appropriate to subject the allegations in the pleadings to a skeptical analysis. [36] Under Rule 9-5(1)(b), a pleading is unnecessary or vexatious if it does not go to establishing the plaintiff's cause of action, if it does not advance any claim known in law, where it is obvious that an action cannot succeed, or where it would serve no useful purpose and would be a waste of the court's time and public resources. If a pleading is so confusing that it is difficult to understand what is pleaded, it may also be unnecessary, frivolous, or vexatious. An application under this subrule may be supported by evidence. [37] Abuse of process under Rule 9-5(1)(d) or the court's inherent jurisdiction is a flexible doctrine. It allows the court to prevent a claim from proceeding where to do so would violate principles of judicial economy, consistency, finality and the integrity of the administration of justice. A claim may be struck where it is a collateral attack on an administrative decision that is subject to appeal or judicial review. A claim may also be struck as an abuse of process where it is an attempt to relitigate an issue that has already been decided. [36] The defendants submit that it is plain and obvious that Mr. Lam's claim cannot succeed for a variety of reasons, including that it is barred by various statutes and does not plead material facts but only speculation and

assumption. [37] The defendants rely on a number of overlapping statutory bars. [38] First, WCB, Ms. MacLennan, Mr. McLavy, Dr. Dunn, and Mr. Dhaliwal rely on s. 332 of the Act, which, they say, prohibits actions of this kind from being maintained or brought against them. That provision states as follows: 332 An action may not be maintained or brought against the Board or a director, officer or employee of the Board in respect of any act, omission or decision (a) that was within the jurisdiction of the Board, or (b) that the Board, director, officer or employee believed was within the jurisdiction of the Board. [39] Second, WCAT and Ms. Riley rely on s. 56 of the Administrative Tribunals Act, S.B.C. 2004, c.45 [ATA], which applies to them pursuant to s. 296(h) of the Act. Section 56 of the ATA states as follows: Immunity protection for tribunal and members 56 (1) In this section, "decision maker" includes a tribunal member, adjudicator, registrar or other officer who makes a decision in an application or an interim or preliminary matter, or a person who conducts a facilitated settlement process. (2) Subject to subsection (3), no legal proceeding for damages lies or may be commenced or maintained against a decision maker, the tribunal or the government because of anything done or omitted (a) in the performance or intended performance of any duty under an enactment governing an

application, or (b) in the exercise or intended exercise of any power under an enactment governing an application. (3) Subsection (2) does not apply to a person referred to in that subsection in relation to anything done or omitted by that person in bad faith. [40] They argue that the bad faith exception set out in s. 56(3) cannot assist Mr. Lam because the allegations of bad faith that he advances are speculative and unsupported by facts; see Harun-ar-Rashid v. British Columbia (Human Rights Tribunal), 2023 BCCA 276; Gonzalez v. British Columbia (Workers' Compensation Board), 2011 BCSC 977, 2012 BCCA 97, application for leave to appeal dismissed [2012] S.C.C.A. No. 206, Gong v. O'Neill, 2022 BCSC 2119. [41] The other defendants whose applications are before the court provided treatment of various kinds to Mr. Lam at the direction of WCB. Several of them rely on s. 127 of the Act as a bar to the action. That provision states as follows: Limitation on legal proceedings against employers or workers 127 (1)Subject to subsection (2), (a) the compensation provisions are in place of any right and rights of action, statutory or otherwise, founded on a breach of duty of care or any other cause of action, whether that duty or cause of action is imposed by or arises by reason of law or contract, express or implied, to which a worker or a dependant or family member of the worker is or may

be entitled against (i) the employer of the worker, (ii) an employer within the scope of the compensation provisions, or (iii) any other worker, in respect of any personal injury, disablement or death of the worker arising out of and in the course of employment, and (b) no action lies in respect of such an injury, disablement or death. (2) Subsection (1) applies only if the action or conduct of (a) the employer or the employer's servant or agent, or (b) the other worker, that caused the breach of duty of care arose out of and in the course of employment within the scope of the compensation provisions. [42] It has been held that this provision bars all actions against a worker, including a physician, who provided treatment under the statutory scheme to a worker for injuries sustained in a workplace accident, even if the treatment was ineffective or harmful: Kovach v. British Columbia (Workers' Compensation Board), [2000] 1 S.C.R. 55. [43] Next, the defendants argue that this action is in essence a collateral attack on, and an attempt to re-litigate the earlier decisions of WCB, its Review Division and WCAT. Such decisions can, they say, only properly be challenged by way of an application for judicial review under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, and such an application would have been well out of time when this action was commenced in any event. [44]

Finally, the defendants assert that the action is also barred by the passage of time, either under the Limitation Act, S.B.C. 2012, c. 13 or its predecessor. [45] I agree with the applicant defendants that it is plain and obvious that the claim is bound to fail and should be struck in its entirety, owing primarily to the numerous overlapping statutory bars canvassed above, which, I accept, operate to preclude an action such as this from being advanced against most if not all of the defendants. [46] To the extent those statutory bars do not cover all of the claims advanced against all of the defendants, I would also strike the ANOCC under Rule 9-5(1)(b) as bound to fail on the basis that any aspect of the claim that might not be barred by statute rests entirely on speculation and assumption, with virtually no material facts pleaded, let alone attested with evidence to support it. [47] Overall, the claim does not withstand the kind of skeptical scrutiny mandated by the authorities. Moreover, no amendment could possibly cure the radical defects that lie at its core. [48] It follows that the entire ANOCC should be struck under Rule 9-5 and I so order. VI. Disposition [49] The ANOCC is struck, without leave to amend. "Milman J."