Van Veelen v. Central Saanich (District)

2017 BCSC 1825 Van Veelen v. Central Saanich (District)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Van Veelen v. Central Saanich (District), 2017 BCSC 1825 Date: 20171016 Docket: S151102 Registry: Victoria Between: Julie Van Veelen Plaintiff And: District of Central Saanich, British Columbia Hydro and Power Authority, Chew Excavating Ltd. and ABC Contracting Ltd. Defendants Before: Master Bouck Reasons for Judgment Counsel for the Plaintiff (Respondent): N. Mason Counsel for the Defendant Chew Excavating Ltd. (Applicant): K.S. Duffield Place and Date of Hearing: Victoria, B.C. October 5, 2017 Written Submissions of the Plaintiff: October 11, 2017 Place and Date of Judgment: Victoria, B.C. October 16, 2017 The Application [1] On May 30, 2017, I ordered that the plaintiff submit to independent assessments conducted by Dr. Paul Janke, a psychiatrist, and Tanya Piercy, an occupational therapist (Progressive Rehab), but reserved judgment on the request by the defendant Chew for the plaintiff to be seen by a neuropsychologist. In reasons for judgment issued at 2017 BCSC 1040, the request for a neuropsychologist assessment was dismissed. Those reasons also provide the basis for making the earlier orders. [2] The defendant Chew now renews its application for the independent neuropsychological assessment and seeks further orders with the respect to both the completion of Ms. Piercy's functional capacity evaluation of the plaintiff

and the consequences to Ms. Van Veelen should she fail to comply with the court's orders. [3] This application necessitates the exercise of the court's discretion pursuant to SCCR 7-6 (2). [4] The parties also required the court's assistance in settling the terms of the order pronounced on May 30, 2017. The May 30 Order [5] The parties agree on all terms to be included in the form of this order with one exception. It was a term of the order that the plaintiff be liable for any cancellation fees if she failed to attend the assessments with either Dr. Janke or Ms. Piercy. The plaintiff submits that it was (or, perhaps, should be) a term of the order that any cancellation fee be subject to an assessment by a registrar of the court. The court summary sheet does not include the plaintiff's suggested term and neither party has obtained a transcript of the proceedings held on May 30. Having now had the opportunity to listen to the DARS record of the hearing, I confirm that no such term was ordered. The order pronounced on May 30 provides that the payment of cancellation fees is subject to any further order made by the trial judge. [6] All of the other terms proposed by the defendant Chew in its draft order were pronounced as orders, not directions, of the court. Accordingly, the May 30 order is settled on the terms of that draft order. If required, a clean version of the order may be

submitted for my endorsement. Otherwise, the parties should submit the now approved form of order in the usual way. The Neuropsychological Assessment [7] The June 22 reasons for judgment set out the basis for dismissing the defendant Chew's previous application to compel the plaintiff to attend a neuropsychological assessment. Simply put, I was unable to find that the assessment was necessary to put the parties on a level evidentiary playing field. It is worth noting, however, that the plaintiff had agreed at one time to attend this type of assessment, so long as that assessment took place in Victoria. [8] The purpose of the neuropsychological assessment is to test the plaintiff's cognitive functioning in an effort to discern whether ongoing cognitive difficulties are related to a pre-existing psychiatric condition or, as alleged by Ms. Van Veelen, a brain injury suffered as a result of the defendants' negligence. [9] The plaintiff attended the appointment with Dr. Janke, although now deposes to suffering detrimental physical, mental and emotional effects before, during and following the psychiatric evaluation. [10] On this application, the defendant Chew brings new evidence in support of its application. The evidence includes a letter from Dr. Janke in which he states that any psychiatric opinion on Ms. Van Veelen's mental condition would be "limited" without the benefit of

reviewing the results and interpretation of neuropsychological testing. Further, Dr. Janke states that it is not possible in the context of a psychiatric interview to disentangle [the plaintiff's] pre-existing psychiatric condition from the effects of a traumatic brain injury. Similarly, Ms. Piercy has provided a letter explaining why she believes that neuropsychological testing of Ms. Van Veelen is necessary for the purposes of completing the functional capacity evaluation. [11] The plaintiff's opposition to the neuropsychological assessment is also supported by new affidavit material, including evidence from the plaintiff herself that was lacking in the previous application's record. The gist of Ms. Van Veelen's evidence is that her physical and mental health were detrimentally impacted, and rather significantly, by having to participate in the previous two assessments. Ms. Van Veelen's evidence focuses in particular on the negative impacts of travelling outside of the Greater Victoria area to attend assessments. The defendant's previous nominee, Dr. LeBlanc, is unable to conduct the assessment in Victoria in time for the trial in this action. The new nominee, Dr. Coen, would conduct the assessment in Vancouver. [12] Having considered all the new affidavit material, I am now persuaded that a neuropsychological assessment is necessary to bring reasonable equality to the

parties' preparation for trial. In doing so, considerable reliance is placed on the obiter comments of the law made by Blok J. in Kenny v. Bateman, 2017 BCSC 900, aff'g 2016 BCSC 863 (Master). In my respectful view, this case provides the most comprehensive discussion and analysis of the law to date with respect to SCCR 7‑6 (2) applications: see paras. 45-66. I note that this decision was released one day after the hearing of the defendant Chew's first application. Kenny also involved a proposed neuropsychological assessment following a psychiatric evaluation. Unsurprisingly, the facts of the case differ somewhat from those presented on this application. As well, the outcome of that case was determined by the application of SCCR 7-6(1). Nonetheless, the court gives careful consideration to the factors that ought be considered in determining whether subsequent examinations by practitioners in different fields of medicine ought to be ordered. [13] According to the new evidence, the neuropsychological assessment results will not be used to bolster but rather to lay a foundation for the opinions to be offered by at least Dr. Janke and perhaps also the occupational therapist. Arguably, the new evidence from the defendant Chew could have been offered at the May 30 application. Regardless, the renewed application also allowed the plaintiff to provide information that was missing at

that last application. Thus, the defence has not been given any advantage in terms of the evidentiary record. If anything, the new evidence from the plaintiff confirms and highlights the complexity of Ms. Van Veelen's mental condition and complaints and thus, in terms of proportionality, supports the fairness of allowing the defendant Chew this third independent assessment. The discrepancies between Ms. Van Veelen's more recent subjective complaints, the objective medical evidence and the plaintiff's post-accident performance in high level athletic events make this an exceptional case. [14] The plaintiff was able to travel to Vancouver to attend Dr. Janke's assessment. Dr. Janke says that he was able to complete his assessment despite what the plaintiff later described as her inability to function that day. The plaintiff's treating medical personnel say that the venue of any medical assessment is preferably Victoria but none rule out, at least on medical grounds, Ms. Van Veelen's attending appointments in Vancouver. Completing the Functional Capacity Evaluation [15] According to both the plaintiff and Ms. Piercy, the functional capacity evaluation as ordered by the court was not completed. The defendant Chew seeks an order that Ms. Piercy be allowed to complete the assessment on specific dates: November 29, 30 and, if necessary, December 1, 2017. The assessment is to occur over

the period of two to three days in order to accommodate breaks for the plaintiff. The order is only necessary because the plaintiff was unable or unwilling to cooperate in the assessment as ordered on May 30, 2017. [16] I am not persuaded on the objective evidence presented by the plaintiff that the completion of this assessment will be too onerous or too painful for Ms. Van Veelen such that her participation is no longer deemed reasonable. Accordingly, the order sought by the defendant Chew in item 3 of the notice of application is granted. Cancellation Fees [17] As on the previous application, the defendant Chew seeks an order that the plaintiff pay any late cancellation penalty if she fails to attend at the above assessments. The plaintiff submits that any such monetary penalty ought to be determined by the registrar, presumably on an assessment following the conclusion of the proceeding. [18] The defendant Chew is not asking for an order that the cancellation fees be paid by the plaintiff forthwith. The evidence concerning possible cancellation fees is rather limited and does not identify any specific amount that might be charged by each assessor. There may need to be additional evidence required from both the plaintiff and the assessor as to the circumstances of a cancellation charge being issued. In my view, that kind of evidence is best presented at trial. Accordingly, I order that the relief sought in paragraph 5 of the notice of application be adjourned to trial. Costs [19] Costs of the application will be in the cause as between the plaintiff and the defendant Chew. "C.P. Bouck" Master C.P. Bouck