Pearlman v. Lubin

2009 BCSC 326 Pearlman v. Lubin

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Pearlman v. Lubin, 2009 BCSC 326 Date: 20090311 Docket: S064108 Registry: Vancouver Between: David Pearlman Plaintiff And Dr. Stan Lubin Defendant Before: The Honourable Madam Justice Morrison Reasons for Judgment The Plaintiff, David Pearlman Appearing In Person Counsel for the Defendant Abigail Turner Mandeep K. Gill Date and Place of Trial: December 1-5, 2008 Vancouver, B.C. [1] This is an action by the plaintiff, David Pearlman, for damages against his former family physician, Dr. Stan Lubin, the defendant. The plaintiff alleges breach of confidence, defamation and libel, fraud, deceit and negligence, medical malpractice. [2] The plaintiff, a retired lawyer, was involved in a motor vehicle accident on November 25, 2004. The defendant, a general practitioner, was the plaintiff's family doctor from 1993 to 2006. On April 11, 2006, Dr. Lubin, at the request of ICBC, prepared a medical report on the plaintiff. That report is the basis of the plaintiff's claim against the defendant. Background [3] The plaintiff, born August 8, 1934, is 74 years of age. He received his Bachelor of Science degree in 1956 from the University of Manitoba, and in 1960, his law degree. He practised law in Winnipeg until 1989, and retired at that time, after suffering upper chest pains, high blood pressure and cholesterol. He testified that he required

a change of lifestyle for health purposes. He was on disability insurance after he ceased practising law. [4] The medical records of Dr. Lubin, which were filed as exhibits, indicate the plaintiff first saw Dr. Lubin in 1993, and then saw him on a fairly regular basis throughout the years, sometimes three times a year, sometimes much more often. The plaintiff lived for the most part in the Lower Mainland, but also sometimes in the United States. [5] On November 24, 2004, the plaintiff had a physical examination at Dr. Lubin's office. Mr. Pearlman testified that at that time, he had had no pain symptoms for three years. Prior to that time he had a number of symptoms, including problems with his neck and back. [6] One day after that examination, on November 25, 2004, the plaintiff was rear ended in a motor vehicle accident. At the time, he felt an impact in his thoracic spine, and his body was vibrating. He said there were particles between his teeth, from two teeth in the front of his mouth. He had a cantilever bridge that was twisting, "swinging like a gate". [7] Three days after the accident, the plaintiff went to Dr. Lubin's office, and saw Dr. G. Feinstadt, a locum. Dr. Feinstadt examined the plaintiff, and ordered x-rays. The plaintiff did not complain of any damage to his teeth at that time. On December 3, 2004, the plaintiff saw Dr. Feinstadt again. The records indicate

that there was no complaint of injury to his teeth on that occasion. [8] On December 1, 2004, Mr. Pearlman gave a statement to Kelly Winn, an adjuster with ICBC. That statement said, in part: ... It was a tremendous jolt. I was sitting with my hands on the steering wheel and I felt a tremendous pain radiating up and down and across my entire body in a whole circle. Tremendous shock. That was immediately. Now I am feeling rotten. I have sore vertebrae from top to bottom, dizziness and I was given medication, I discontinued it because I got shooting pains in the left ear. I don't know if the medication caused it. I have pain in the teeth and gums and the bridge is twisting. The last time I went to the dentist was four or five months ago. I went because I had problems with my bridge on the left side. I had a pin put in and it was secure but after the jolt it wasn't. My dentist is Dr. Dahl in Ferndale. He was my dentist for several months. I can't remember offhand how long I lived in Washington. I have sore hips, the neck the cervical, thoracic, and lumbar spine. I have had x-rays done two days ago. I a Dr at 943 West Broadway. I have had x-rays in the past. I have been told I have arthritis of the spine and I should stay out of problems but I have not had any pain or discomfort and was symptom free for 3 to 4 years. I was taking medication. I take cholesterol, dieuretics, high

blood pressure medications. I cannot remember how long ago I moved from BC. The last time I worked was many years ago. It was not in BC. I was retired. I am now looking for work because I have to earn a living. Since the accident I have been stiff and have discomfort and pain. I have been attempting to move as much as I can. I am trying to move the body, I don't want to stiffen up like a board. If I should turn around to shoulder check I have to turn my whole body and if I am have to go any distance the pain and discomfort are tremendous. I can only bend so that my hands are a foot and a half from the toes to bend. I am trying to bend. I have not tried to lift. Normally I skate. I went for a skate today for 10 minutes. I went on the ice, skated around twice, went off, went back on, trying to limber up. I went the other day and lasted 3 minutes. I was in a car accident 20 years ago, 25 years ago. I may have had 5 or 6 whiplashes, but I have not been in an accident for 20 to 25 years, maybe more. I have had problems with the neck and sciatica. 4 or 5 years ago I ended up at the emergency hospital, two hospitals and it took 100 days of pain and medication for it to ease up and I haven't had pain for 3 to 4 years. I went to Richmond General Hospital, Vancouver General Hospital. Dr. Stan Lubin treated me for that. He is at Oak and West Broadway. I saw Dr. Garry Feinstadt at 103-1001

West Broadway after the accident. 604-734-8252. I go back Friday. It's not clear that I see Feinstadt or Lubin. I am trying to look for work. I am waiting for BC Olympic to send me something, with real estate I have to go down to UBC to make arrangements. I was speed skating champion of Canada. I was champion in the 90's. This was amateur and you skate in your own age group. ... [9] Ms. Winn sent a letter to Dr. Lubin on December 6, 2004, indicating that Mr. Pearlman was making a claim with ICBC for injuries resulting from the motor vehicle accident, and asking for copies of his complete clinical records, including any consultation reports from August 30, 1993 to that date, December 6, 2004. She enclosed an authorization that Mr. Pearlman had signed on December 1, 2004. This was a fairly standard ICBC authorization to provide medical information, authorizing "every medical practitioner... to provide any representative of the Insurance Corporation of British Columbia... any and all records, x-rays, information and evidence in their possession", etc. The authorization indicated that information collected with the authorization form was done in accordance with s. 26 of the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, and s. 9 of the Insurance Corporation Act, R.S.B.C. 1996, c. 228. [10] Dr. Lubin complied with that request at that time, plus other

requests to provide medical records and information about the plaintiff which he received before April 2006. [11] On November 30, 2005, the law firm of Stephens & Holman wrote a letter to Ms. Winn at ICBC advising that they were acting on behalf of the plaintiff with regard to the accident of November 25, 2004. The letter stated, in part: It is our usual policy to revoke all previous authorizations signed by our client, and we have done so in this case. ... In the future, if you require any information, please contact us and we will endeavour to meet your reasonable requests. [12] Less than six months later, on April 7, 2006, Dr. Lubin received a request from Ms. Winn of ICBC requesting a narrative medical report with regard to the plaintiff. Her letter was dated April 4, 2006. Dr. Lubin's narrative medical report of April 11, 2006 was sent to ICBC, to Ms. Winn. This was the letter that is the basis of Mr. Pearlman's claim against Dr. Lubin. [13] That letter, in part, set out Mr. Pearlman's medical history, and stated that since 2002, up until the time of the motor vehicle accident of 2004, Mr. Pearlman had not complained of any neck or low back pain, which he had suffered previously. The letter noted that Mr. Pearlman was seen by Dr. Lubin on November 24, 2004 for a physical examination, and there were no complaints of neck or back pain at that time. This was the day before

the accident. [14] Dr. Lubin's letter detailed the complaints that Mr. Pearlman had when he saw Dr. Feinstadt on November 27, 2004, which included dizziness, pain, soreness in the back of the head, neck and hips. There was a loss of range of motion of the neck: ... with significant tenderness over the spinous processes of the c-spine and the upper thoracic cervical spine and the upper thoracic spine. There was also marked loss of range of motion of the lumbar spine and some lumbar paravertebral spasm. Dr. Feinstadt diagnosed whiplash and low back strain. [15] Dr. Lubin's letter stated that when he saw Mr. Pearlman on December 3, 2004, he diagnosed soft tissue injury following the motor vehicle accident. He also saw him the next day, December 4, 2004, at which time he diagnosed "whiplash associated disorder grade 2 of the lumbar, cervical and thoracic spine. I prescribed exercise, heat and physiotherapy." [16] December 17, 2004 was the next time Dr. Lubin saw Mr. Pearlman, and in his letter to ICBC, Dr. Lubin wrote that Mr. Pearlman had also said that he had cracked "his left upper front tooth. ... I could not see any problem with his tooth when I examined it. I diagnosed whiplash associated disorder with decreased tenderness." [17] The narrative letter reveals that Dr. Lubin next saw Mr. Pearlman on January 14, 2005. Although Mr. Pearlman had resumed skating, the pain in his

neck and low back were worse the following day. Dr. Lubin wrote: I diagnosed whiplash associated disorder grade 2 of the cervical and lumbar spine. I again recommended neck exercise and physiotherapy. Mr. Pearlman also complained of a problem with his upper teeth which he attributed to the motor vehicle accident. On examination there was some looseness of the upper front tooth. I felt his dental problem was not likely connected to the motor vehicle accident. [emphasis added] [18] The letter further revealed that Mr. Pearlman had seen Dr. Joseph Chong "for dental pain" on November 10, 2005. [19] The balance of Dr. Lubin's letter dealt with neck and low back pain, which Mr. Pearlman was continuing to suffer. In his final paragraph, Dr. Lubin wrote: In summary, Mr. David Pearlman had a history and physical findings consistent with whiplash associated disorder of the cervical spine and lumbar spine. He had preexisting neck and low back pain and significant preexisting cervical arthritis. He continues to have neck and low pain. In my opinion, Mr. Pearlman's neck pain has persisted longer than what would have been expected with a whiplash associated disorder grade 2 because of his preexisting cervical arthritis. I predict he will continue to have on and off pain of his neck for some time, which is partly due to his motor vehicle accident of November 25, 2004. I cannot say with

certainty how long he will continue to have neck and low back pain. [20] Mr. Pearlman was unaware of that report existing or being sent to ICBC until later in May of that year. The plaintiff was having significant problems and expenses with his teeth, problems that he attributed to the accident. ICBC was refusing to pay for his dental expenses. Mr. Pearlman's American insurers were also refusing to pay over a $10,000 limit. When Mr. Pearlman saw a copy of Dr. Lubin's report around May 18, 2006, Mr. Pearlman's reaction was best described as one of outrage. [21] On May 29, 2006, Mr. Pearlman handwrote a letter to Dr. Lubin, which had the heading "Re: Your Fraudulent Report of April 11, 2006." In that letter, he advised Dr. Lubin that he had telephoned Kelly Winn of ICBC the previous week at which time he was informed of the medical report from Dr. Lubin, and also that ICBC would not pay for any dental expenses, nor would they reimburse his private insurer for the sum of $10,000 which had been paid to dentists on Mr. Pearlman's behalf. ICBC refused to send Mr. Pearlman a copy of the report, saying that he would have to get it from Dr. Lubin. The next day, Mr. Pearlman testified that he presented himself at Dr. Lubin's office, at which time he received a copy of the report. That was on or about May 18, 2006. [22] Mr. Pearlman's letter to Dr. Lubin advised Dr. Lubin that he had not

given any written authorization to send out a report on Mr. Pearlman's behalf. The letter also stated, "You are not qualified as a dentist... You have no right to make a finding of liability or to make an assessment of damages." Mr. Pearlman further wrote, "Your report destroys my credibility regarding dental injuries and all other injuries and all other matters. You have subjected me to having my insurer make allegations that I have submitted a fraudulent claim to them." [23] The letter went on with further strong language against Dr. Lubin; that letter marked the end of the doctor-patient relationship between the plaintiff and the defendant. Mr. Pearlman felt at that time, and continues to feel that Dr. Lubin had sabotaged him. The letter also advised Dr. Lubin that Mr. Pearlman could not use him as a witness in court and stated that Mr. Pearlman had no hope of settling with ICBC because of what Dr. Lubin had written in the letter. [24] After the accident, Mr. Pearlman began actions against his American insurance company, American Commerce Insurance Co. He also began an action against ICBC and Kelly Winn, and another action against the owner and driver of the vehicle that rear ended his vehicle in the accident. He also began an action against Stephens & Holman, his former lawyers, and then this action against Dr. Lubin. [25] In his action against the owner and operator of the

vehicle that rear ended him, (Atlantic Trading Company Ltd. and Rebecca Lee Spence, Action No. M101344), Mr. Pearlman sought damages for injuries suffered as a result of the accident in 2004. Liability was admitted by the defendants, but the defendants claimed Mr. Pearlman had suffered no injury or damages as a result of the accident. A jury trial in that action took place in New Westminster in the Supreme Court of British Columbia September 15 to 17, 2008. Mr. Pearlman did not call Dr. Lubin. Nor did the defendants. Nor were Dr. Lubin's medical records or his letter of April 11, 2006 placed in evidence. Mr. Pearlman was unsuccessful in his claim for damages, and as a result of the dismissal of his action Mr. Pearlman had double costs assessed against him in that trial. [26] Mr. Pearlman's appeal of the jury verdict and the order of Mr. Justice Rice in that action was unsuccessful. [27] Mr. Pearlman blames Dr. Lubin for the plaintiff's unsuccessful action against the owner and operator of the vehicle that rear ended him, the loss of that civil jury trial. [28] The plaintiff's action against ICBC and Kelly Winn was heard in Chambers before Mr. Justice Cullen on May 4, 2007. That was an action where the defendants brought an application to dismiss the plaintiff's claims against them. Part of the plaintiff's claim against ICBC and Ms. Winn was dismissed. The court declined to

grant judgment on the issue of negligence relating to the production and disclosure of Dr. Lubin's report at that stage of the proceedings. Evidence on behalf of the Plaintiff [29] The plaintiff testified at some length about the extensive problems that he has had with his teeth, which he claims were mostly as a result of the motor vehicle accident. He finally had to have implants, which have cost him $1,800 to $2,000 U.S. each. He has had seven implants, plus two separate bridges that have had to be made. He has had to wear appliances, and has had partial plates, plus trouble biting and eating. A bridge on the right side of his mouth was in for seven years before the motor vehicle accident. His evidence is that his main and continuing problems with his teeth, including the damaged bridge were as a result of the accident. Although his U.S. insurer paid $10,000 for dental work, for all the additional dental work that he needed, ICBC refused to pay. [30] The plaintiff claims that at one point, Dr. Lubin said to him, "Dentistry is best left to dentists." But in spite of that, Dr. Lubin made comments in his letter to ICBC on dental matters, not within his area of expertise; this had the effect of sabotaging the plaintiff's claim for damages and injuries resulting from the accident. Mr. Pearlman was denied benefits under Part 7 of the Insurance (Motor Vehicle) Regulation, B.C. Reg.

447/83, pursuant to the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231. [31] The plaintiff claims that ICBC was given an unauthorized report by Dr. Lubin. As a result of that report, Mr. Pearlman was unsuccessful in claiming Part 7 benefits and ultimately unsuccessful at the jury trial. [32] Mr. Pearlman testified that he was unable to call Dr. Lubin in his court action against Atlantic Trading Company Ltd. and Rebecca Lee Spence. Nor was he able to use Dr. Lubin's report at the trial. Mr. Pearlman testified he tried to get Dr. Lubin to "recant", but Dr. Lubin did not do so. So the plaintiff felt he could not call the defendant as his witness. [33] At the jury trial, the plaintiff testified that the only medical evidence he was able to call was Dr. Baird, who was his general practitioner. But the first time Mr. Pearlman had seen Dr. Baird was September 19, 2006, almost two years after the accident. The plaintiff testified he was unable to call his dentist, Dr. Dahl, who practises in the State of Washington, because of the expense. [34] It was the opinion of Mr. Pearlman that it would have been too great a risk to put Dr. Lubin in the witness stand, because Dr. Lubin would have sabotaged him. [35] The plaintiff further testified that Dr. Lubin had concealed things from him, in particular, the report of April 2006 that Dr. Lubin sent to ICBC. Then when Mr. Pearlman asked to

see a copy of it, Dr. Lubin initially indicated he did not want to give a copy to him. But he did. Further, as this action progressed to trial, the defence was late in giving crucial documents to the plaintiff. [36] The plaintiff spelled out in some detail the extensive and obviously invasive dental procedures that he has gone through over the past three or four years. [37] Dr. Joseph Levinson and Dr. Lawson Baird were both called by the plaintiff at this trial, as they were at the jury trial where damages were sought for injuries suffered in the accident. Dr. Levinson has been a dentist from 1969 to 2006. He has practised in all facets of dentistry, including bridgework, extractions, endodontics and diagnosis. [38] On December 13, 2004, the plaintiff saw Dr. Levinson. The doctor sanded down two teeth in the upper right portion of the plaintiff's mouth, and he adjusted the bridge on the right side. [39] He then saw the plaintiff on February 10, 2005. He performed a repair on a bridge that he said was not complicated. He was unable to say how the bridge became broken. Dr. Levinson did a report on February 10, 2005 to the plaintiff's insurer, which referred to the damage being as a result of a motor vehicle accident. But at trial, he acknowledged he was unable to say how the bridge became broken, other than presumably what he had been advised by the plaintiff. [40] Dr. Levinson

had not seen the plaintiff prior to the accident, and his evidence pertained to treatment that he gave to Mr. Pearlman following the accident. He was unable to say how the damage to Mr. Pearlman's teeth or bridge had occurred. Nor did he have dental records predating the motor vehicle accident. [41] Dr. Baird has been a family physician for 25 years, and has been the plaintiff's family doctor since September 19, 2006, when he first saw him. The plaintiff was in a second motor vehicle accident on February 7, 2007, and Dr. Baird's evidence is that he saw the plaintiff three days after that accident. However, because Dr. Baird was not the plaintiff's family doctor until September 2006, his evidence with regard to this trial was limited. [42] Dr. Paul Bishop was called as a witness. He was qualified as an expert in the diagnosis and treatment of spinal injuries. He is a clinical associate professor on the Faculty of Medicine at the University of British Columbia, specializing in neurology and orthopaedics, with particular focus on the spine. He examined the plaintiff on June 25, 2008. [43] Dr. Bishop recommended that Mr. Pearlman have additional diagnostic imaging studies and investigations carried out. He testified that Mr. Pearlman had pre-existing degenerative changes in his spine, and he gave other evidence with regard to the plaintiff's orthopaedic problems. However, his

evidence was also of limited value, given the issues involved in this trial. Mr. Pearlman did not call Dr. Bishop at the trial against Atlantic Trading Company Ltd. and Rebecca Lee Spence. Evidence on behalf of the Defence [44] The defence called Dr. David Bridger, a certified specialist in prosthodontics. He was qualified as an expert in dentistry. Dr. Bridger graduated from McGill Dental School in 1975 and has done extensive postgraduate work in crown and bridgework as well as periodontics. His report of July 14, 2008 was placed in evidence. The purpose of the report was to provide a document review with regard to the plaintiff's alleged dental injuries following the accident of November 25, 2004. Dr. Bridger never examined the plaintiff. [45] Dr. Bridger reviewed some dental files of the plaintiff. These included clinical records and copies of letters and reports from Dr. Curtis Wade, from March 2005 to February 5, 2008; copies of letters and clinical records from Dr. Levinson from February 10, 2005 to November 2, 2006; letters and clinical records of Dr. Ronald Dahl from October 4, 2006 to February 8, 2007; and a report from Dr. Jeffrey Tupper along with a photocopy of a panoramic x-ray from July 2005. [46] The opinion of Dr. Bridger included the belief that Mr. Pearlman "may have sustained further porcelain fracture on teeth #'s 15 and 16 over and above the existing

fractures that were on these teeth. I believe that he may have sustained a root fracture in bridge abutment #24 as a result of the MVA." [47] His report went on to say: It is pertinent at this time to explain the very non conventional crown and bridgework in Mr. Pearlman's upper arch prior to the accident as well as the very tenuous nature of that crown and bridgework. His original 7 tooth bridge extended from tooth #13 to #24. For such a bridge to be provided in today's standards would be considered negligence and possibly malpractice and certainly would not be recommended by any restorative department in recognized dental schools in North American. A span of 5 missing teeth in the anterior region should be supported by at least 2 abutment teeth on either end of the span. [48] In the opinion of Dr. Bridger, tooth 24 was very fragile and it could have "easily sustained a fracture... by simply biting on a piece of bread". [49] Implant work on the damaged teeth #15 and 16, as well as 24 had been recommended to the plaintiff before the accident. Dr. Bridger opined that teeth 15 and 16 had already suffered extensive damage before the accident, as had tooth 24. On page 6 of his report he wrote, "It appears that the motor vehicle accident could not have happened at a more convenient time in order to assist in financing of the pre-accident proposed treatment plan." Dr. Bridger also

wrote, "... therefore just because a few bits of porcelain were further lost on these teeth I do not feel that these teeth should be attended to as a result of the accident." He applied the same opinion with regard to tooth #24. Dr. Bridger testified he was amazed that the bridge had lasted as long as it had. [50] The final witness called was Dr. Ron Village, a family physician practising in North Vancouver, having graduated from UBC Medical School in 1991. He was qualified as an expert in general practice, and more particularly in family practice. [51] Dr. Village gave the opinion that Dr. Lubin had met the standard of care expected of a general practitioner in providing the report of April 11, 2006 to ICBC. He was also of the opinion that with regard to allegations of negligence, Dr. Lubin's treatment of the plaintiff was within the standard of care expected of a family physician. [52] In cross-examination by the plaintiff, Dr. Village noted that no reports from dentists were ever sent to Dr. Lubin before Dr. Lubin made his report. He also testified that under the Insurance (Motor Vehicle) Act, doctors are obligated to send reports, and that they are advised by the College of Physicians and Surgeons with regard to their obligations; that doctors have no choice in this matter. The Position of the Plaintiff [53] The plaintiff alleges that Dr. Lubin had a duty of confidentiality

to the plaintiff, and the defendant breached his duty of confidentiality when he provided the report of April 11, 2006 to ICBC. The authorization that the plaintiff had originally signed on December 1, 2004 had been revoked, and Dr. Lubin should not have sent the letter in April 2006 to ICBC. Dr. Lubin failed to recall or review his file to see the letter from Stephens & Holman revoking pre-existing authorizations. [54] Because of Dr. Lubin's opinion with regard to dental matters in that report, Mr. Pearlman was unable to use Dr. Lubin at his trial in seeking damages against the owner and operator of the motor vehicle that rear ended him. [55] The plaintiff further alleges defamation against Dr. Lubin. When Dr. Lubin wrote, "I felt his dental problem was not likely connected to the motor vehicle accident", this amounted to defamation and libel. It cast doubt on the plaintiff's credibility and caused third parties to consider the plaintiff to be fraudulent. [56] The plaintiff further claims that Dr. Lubin is liable for medical negligence, because Dr. Lubin failed to meet the required standard of care in his treatment of the plaintiff. The plaintiff says he had chronic infections in his mouth, and there was no follow up treatment by the defendant. [57] Deceit has also been alleged by the plaintiff. The alleged misrepresentations by Dr. Lubin in the ICBC report amounted to deceit,

according to the plaintiff. The plaintiff contends that because dentistry was outside Dr. Lubin's area of expertise, his comments on dentistry amounted to deceit. The Position of the Defendant [58] There was no breach of confidence by Dr. Lubin. Dr. Lubin was required to give the report by statute. That requirement is found in s. 28 of the Insurance (Motor Vehicle) Act. Under s. 42 of the Act, if Dr. Lubin had refused to provide the report, he would have been subject to prosecution. [59] The defendant denies the allegations of defamation and deceit. In referring to Cherneskey v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067, counsel for the defence submits that a defamatory expression would be one that would lower a person's reputation in the community, or expose a person to hatred, contempt or ridicule. Counsel says there is no evidence to establish defamation, libel or deceit. [60] With regard to the allegation of medical negligence, the defence contends there is no evidence to lead to such a conclusion. There is no evidence, expert or otherwise, that the defendant treated the plaintiff in any way that could be found to be negligent. There is no evidence that the defendant failed to meet the ordinary standard of care imposed on a family doctor in the circumstances of this case. Conclusion [61] The plaintiff's claim against the defendant is dismissed. The evidence fails to

establish any breach of confidence or confidentiality. It fails to establish that there has been any defamation or libel by the defendant. There has been no fraud, deceit or medical malpractice by the defendant, Dr. Lubin. The evidence at trial falls far short of establishing any of the claims made by the plaintiff. [62] I accept without qualification the evidence of Dr. Lubin. I found him to be credible, and his clinical records show years of consistent and professional care as a family doctor to the plaintiff. [63] Dr. Lubin was obligated to provide ICBC with the report as requested. Dr. Lubin had no legal choice other than to comply with the mandatory request to submit a medical legal report to ICBC. This did not amount to a breach of confidentiality as alleged by the plaintiff. [64] Dr. Lubin's report to ICBC was detailed and sympathetic to the plaintiff with regard to his neck and spinal injuries, and it is perhaps unfortunate that that evidence did not go before the jury trial in the action against Atlantic Trading Company Ltd. and Rebecca Lee Spence. Dr. Lubin testified that he would have been willing to testify on behalf of the plaintiff, had he been called at the jury trial. [65] The plaintiff has failed to prove, on a balance of probabilities, that the defendant was the reason that he lost his case before the judge and jury in the action against Atlantic Trading

Company Ltd. and Rebecca Lee Spence. [66] It is clear from the evidence that Dr. Lubin had an honest belief in the truth of everything that he had written in his report. He had that honest belief at the time he wrote the report, and he confirmed at the trial that he was still of that view. His testimony was that he had an obligation to tell the truth as he saw it, and he remained of that opinion at trial. He felt that the plaintiff would not or could not have suffered damage to his front teeth as a result of the mechanism of the injury that occurs in the type of rear end vehicle accident that the plaintiff was involved in. [67] The plaintiff has failed to prove his case, on a balance of probabilities. The defendant is entitled to costs. "Morrison J."