O’Callaghan v. Hengsbach

2017 BCSC 2182 O'Callaghan v. Hengsbach

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: O'Callaghan v. Hengsbach, 2017 BCSC 2182 Date: 20171129 Docket: M154558 Registry: Vancouver Between: Katherine Rita O'Callaghan Plaintiff And Mischa Hengsbach Defendant Corrected Judgment: The text of the judgment was corrected at paragraph 8 on December 1, 2017 Before: Master Baker Reasons for Judgment Counsel for Plaintiff: K. Stewart Counsel for Defendant: A. Scarth Place and Date of Trial/Hearing: Vancouver, B.C. November 16, 2017 Place and Date of Judgment: Vancouver, B.C. November 29, 2017 Table of Contents ISSUE. 3 BACKGROUND. 3 PARTIES' POSITIONS. 4 Defendant 4 Plaintiff 5 DISCUSSION. 6 DECISION. 10

ISSUE [1] The defendant has applied for short leave pursuant to Rule 8-5(1) to abridge the time to bring its application on November 20, 21, or 22 for an order that the plaintiff attend on a defence independent medical examination ("IME"). I dismissed the application for short leave at the hearing with reasons to follow. These are those reasons.

BACKGROUND [2] The plaintiff alleges that on June 4, 2014, while riding her bicycle, she was struck by a vehicle owned and operated by the defendant. Her notice of civil claim ("NOCC") was filed June 26, 2015, and the response by the defendant was filed on November 3, 2015. [3] In the NOCC among other injuries and damages, Ms. O'Callaghan claimed (a) Injury to her head including: i. Concussion and post-concussive symptoms; ii. Dizziness; iii. nausea iv. headaches; v. cognitive impairment (k) fatigue; (l) nightmares and sleep disruption; (m) driving related anxiety [4] Plaintiff's counsel[1] advised the court (and it was not disputed by defence counsel) that at a fairly early stage in the proceedings, in the usual course of making discovery of documents, the plaintiff's general practitioner's clinical notes were delivered to the defence. [5] Ms. O'Callaghan was examined for discovery in September 2016, and in that discovery she was examined on, and described, I gather, her nightmares, four counselling sessions to deal with post traumatic stress disorder, and the fact that she no longer drove, owing, she said, to the stress she felt after the accident. Again, that was not disputed by defence counsel. [6] The plaintiff attended at a defence IME by Dr. Dost, a neurologist, last September, and Dr. Dost's report was available by October 11. [7] The trial in this matter is set for 15

days commencing January 22, 2018. The time limit for delivery of expert reports (i.e., the so-called "84 day reports") has passed and the date for responsive reports ("42-day reports") is rapidly approaching. With all of that in mind, the defence has decided that it needs psychiatric evidence and has engaged Dr. Spivak, an Albertan psychiatrist, to examine Ms. O'Callaghan (in B.C.) and give his expert opinion. PARTIES' POSITIONS Defendant [8] The defence position, as I understand it, is that while Ms. O'Callaghan did tell of her nightmares and difficulties (para. 5 above) at her discovery, the magnitude or depth of her problems were not reasonably evident to the defence until the receipt of two plaintiff's reports, one by Dr. Babbage, a psychiatrist, and one by Dr. Cohen, a neuropsychologist, both received at or near the 84-day deadline. Mr. Scarth argues that notwithstanding the pleading, above, or Ms. O'Callaghan's discovery evidence, the defence could not reasonably have been expected to understand the import or magnitude (as alleged, at least) of Ms. O'Callaghan's psychiatric damages until it received these reports and is now put to the task of obtaining rebuttal evidence, if available, in very short order. [9] Mr. Scarth submits that when the defence received these reports on October 27, it moved with alacrity to raise and pursue the issue of a psychiatric IME. He has

attempted to establish plaintiff's counsel's availability next week (November 20, 21, or 22) and argues that commitments counsel has (e.g., meetings preparatory to other examinations for discovery) are of less importance that this matter, and as such plaintiff's counsel should reasonably make himself available. Plaintiff [10] Ms. Stewart, addressing this last point first, advises that all counsel in her firm are committed to other matters next week such that in many cases counsel are covering for colleagues. Trying to accommodate an application in this matter next week on short notice will cause even more disruption to her firm but, more importantly, will detract from other clients' rights to legal service and assistance. [11] More to the point, Ms. Stewart argues that this application has not met the test for short leave. There is nothing in the history of this case that, she submits, can permit the defence to genuinely profess surprise at Ms. O'Callaghan's allegations of psychiatric harm flowing from the accident. She specifically points to a multitude of factors that should have alerted the defence to the issue: 1. the claim as pled in the NOCC; 2. Ms. O'Callaghan's physician's clinical records; 3. the plaintiff's evidence at her examination for discovery; 4. a Notice to Admit delivered by the defence in July 2017; and 5. the defence's own IME examination and report from Dr.

Dost. [12] I have already addressed the pleadings in para. 3 above, so will not elaborate further. I have also mentioned the clinical records and, while they were not before me[2], I accept counsel's assurances that they specifically recorded some degree, at least, of Ms. O'Callaghan's psychological or psychiatric concerns, including elements of post traumatic stress and fear of driving. Similarly, Ms. O'Callaghan, as I have said, seemed willing to discuss or elaborate on her psychiatric issues at her examination for discovery. There appear to have been no restrictions placed on the examination or refusals to respond in that respect. [13] Ms. Stewart submits that the defendant's notice to admit, delivered last July to plaintiff's counsel, should also have alerted defence counsel. That notice to admit asked that the plaintiff admit that she suffered no psychiatric injuries in the accident. That was denied. Finally, I gather that Dr. Dost, the defence expert, examined Ms. O'Callaghan respecting her emotional difficulties. That information, obviously, would have been quickly available to defence counsel.

DISCUSSION [14] As I said above, I dismissed this application for short leave from the bench, but felt that not only this specific application but this process (i.e., short leaves) in general warrant discussion. [15] I realize that observations and comments on the practise of requesting short leaves in other cases do not bear on this, or any particular, application. Each application must be taken on its own circumstances, context, and evidence. That is the case here. But before considering the facts of this case, I think it is important to make a few general observations. [16] The Masters in chambers, almost daily, are asked to give short leave under Rule 8-5(1). I have heard three of these applications in 1 ½ days of chambers; in one application, plaintiff's counsel told the court that it was the third short leave application by the defence in that case since October 17. Interestingly, on a quick search I found no authorities to guide the court in granting or refusing applications for short leave. The rule itself offers little guidance, other than an application may be made in circumstances of "urgency". [17] Such applications should be restricted to emergent circumstances and should not reward inefficiency, inattention to a particular case, or a lack of oversight. To abridge the time limits imposed by the Supreme Court Civil Rules is, presumably, to prejudice the other party

who is, naturally, entitled to rely on timelines imposed by the Rules and to expect the opposing party to do likewise. [18] In the absence of guiding authorities, I suggest the following considerations, non-exclusive, should guide the parties and the court in considering short leave applications: a) The application, of course, is to be made by Requisition, usually without affidavits, and may be made before a Registrar, Master, or Judge. b) While undue formality in the application is discouraged, the application should be made in court, on the record (even if by video or telephone) and not online as an e-filed application. c) Applicant's counsel should notify the opposing counsel or party of an intention to apply for short leave so that counsel can appear. At the very least applicant's counsel should canvass with his or her friend their availability on the proposed chambers date and whether he or she is opposed to the short leave. d) The applicant should be prepared to give a full accounting of the facts, circumstances, context, and chronology leading to the application for short leave, all of which should establish that the applicant has been affected or surprised by events or developments not reasonably foreseeable. e) If opposing counsel is not present should, as in the case of without notice applications, be prepared to give both favourable and unfavourable details. f) If

any important or pivotal fact or element is disputed by opposing counsel the applicant should be prepared to offer affidavit evidence on the point and, as always, counsel should not speak to his or her own affidavit if the matter is contested. g) Busy schedules for the applicant counsel will usually not be sufficient reason for short leave; in that case counsel should arrange for a colleague or agent to speak to the chambers application on the usual notice required by the rules. [19] Ultimately, taking these points into consideration, the court will balance the prejudice both to the other party by potentially disrupting their schedules and trial preparations as well as service to other clients and to the applicant by virtue of reasonably unforeseen facts, circumstances, or developments that have inhibited the applicant's preparation in the normal chronology that the rules contemplate and mandate. [20] Some areas of the law tend to offer more emergencies or crises than others; family law would likely fall in this category. Despite this, however, of late more applications for short leave seem to arise from personal injury/motor vehicle accident cases than in any other. And most of those applications for short leave seem to be on behalf of the defence, seeking short leave to bring an application for an IME close to trial. In that respect, this case is completely typical of that

growing practise. [21] In many cases, the applicant can point to genuine circumstances giving rise to surprise or the advent of claims or circumstances the applicant could not have reasonably anticipated. This, and many similar applications, is not in that category. In too many cases, in my view, the defence, either assuming that settlement is likely or simply by applying triage or prioritizing in busy offices with large caseloads, have not given due attention and focus in a timely way to the possible claims and damages of the plaintiff. Lawyers are extremely busy professionals. They have many cases other than the one specifically before the court. Every master and judge knows that. Still, that cannot be permitted to affect the other party's right to due process and adherence to the rules unless clearly justified; it is the court's function to prevent that. [22] I have opined often, from the bench, about the template nature of pleadings in personal injury cases[3]. Often, it seems, the only change to pleadings are the names of the parties and the date and location of the accident. The damages claimed and particulars of alleged negligence are almost rote. Still, when a party specifies concussion, cognitive impairment, nightmares, sleep disruption, and driving related anxiety (which, to be fair, not all plaintiffs claim), it should be an obvious announcement to the defence that

psychiatric enquiry is justified. [23] With the advent of standardized pleadings, an obvious problem for the defence arises: what really are the damages (if any) to this particular plaintiff? It is my conclusion that very often the true issues in the claim are not established until expert medical (and sometimes economic) reports are delivered. And, yes, very often these reports are delivered at or very near the 84-day deadline. I do understand the defence dilemma in that, but even when faced with standardized pleadings, nothing prevents the defence from, as here, conducting the usual steps for disclosure and discovery. The chronology or timing of that is very much for the defence to decide and control. [24] In this particular case, Ms. Stewart is right; there were multiple indications to the defence that Ms. O'Callaghan was not only making a claim for psychiatric injuries, but that she was firm in her allegation and that in her view the damages were significant and long-lasting. Both the clinical records and her discovery evidence should have reinforced that assertion. Her denial of the facts contained in the defence notice to admit was a further obvious sign. But preceding all of those indicators was the NOCC which, despite my complaints of template pleadings in general, was clear in alleging specific psychiatric or psychological injuries and consequences of the accident.

DECISION [25] There is nothing in the circumstances of this case that justifies any surprise to the defence respecting Ms. O'Callaghan's claim of psychiatric injuries, and as a consequence, the application for short leave is dismissed. "Master Baker" [1] It should be noted that neither counsel that appeared on this application has conduct of the matter, but that, notwithstanding that, both gave full, complete, and helpful submissions on the application. [2] Nor would I expect them to be, on an application for short leave, unless the defense put them in their materials. [3] Although, it must be said, it is probably not as pronounced as in family law where many counsel seem to feel their pleadings are totally mandated and restricted by the Family Rules' forms