Cowan v. Davies,


2008 BCSC 1239


Date: 20080801
Docket: M96084
Registry: New Westminster


Arthur Blake Cowan



Gail Davies and Colin Davies


Before:  Master Baker

Oral Reasons for Judgment

In Chambers
August 1, 2008

Counsel for the Plaintiff:

P. Unruh

Counsel for the Defendants:

J.P. O'Flynn

Place of Trial/Hearing:

New Westminster, B.C.


[1]                THE COURT:  This is an application by the defendants for two heads of relief principally.  Firstly, for an order that there be further examinations for discovery of Mr. Cowan continuing the examination for discovery that proceeded in September 2007.  Secondly, the defendants seek a further independent medical examination, this by a neurologist, Dr. Makin, on August 6th, 2008, only about five days hence. 

[2]                This matter arises from a motor vehicle accident which occurred in January of 2004, and the trial of this matter is set for seven days before a jury on October 27th, 2008.  As Mr. O'Flynn pointed out, the defendants are therefore by the terms of Rule 40A under a fairly stringent obligation to get any medical opinions they wish to produce pretty soon. 

[3]                Mr. Cowan suffered injuries largely to his left side when his vehicle was struck from the side.  Obviously it was a considerable impact and significant accident.  He had by my understanding five broken ribs -- I may have that wrong; it may have been six -- various contusions and injuries, a soft tissue injury obviously to the left side of his body.  There is no question about that. 

[4]                Mr. Cowan has been either examined or treated by numerous physicians.  His treating physicians, general practitioners, are Dr. Amin and then latterly Dr. Foster, but in addition to that he has been treated by Dr. Anzarut, a neurologist, on a referral from Dr. Amin.  He has also consulted as part of these proceedings, Dr. Anton, a physiatrist, who gave a report and a very short supplemental report or letter, depending on what you want to call it.  He has also consulted in these proceedings I guess Dr. Fry, a vascular surgeon. 

[5]                There was a medical examination conducted on behalf of the defence by Dr. Hawk who is an orthopaedic surgeon and at the risk of over-simplifying and unfairly paraphrasing perhaps, it is the view of the plaintiff that Dr. Hawk's examination and opinion essentially constitutes an opinion on the very issue before the court that the defence wishes to examine.  In other words the plaintiff says what is sought is a second opinion on the same subject, the same issue when one has already been given.  During submissions, that is exactly what counsel for Mr. Cowan offered when Mr. Unruh referred me to Gray v. Vlasveld, [2002] B.C.J. No. 1314, 2002 BCSC 894, a decision of Mr. Justice Warren.

[6]                Dealing first with the further examination for discovery, I am persuaded that this is an appropriate case for further examination for discovery.  On my understanding of what proceeded and on a perusal of those parts of the record of the examination for discovery which occurred in September 2007, it is obvious that there were outstanding requests for documents or information.  At the end of the discovery, the defence in the usual way, I guess, said that "We are adjourning pending receipt of the information".  Again, I probably unfairly paraphrased, but that is what I think happened, but again there was an immediate refusal on the part of plaintiff's counsel who said "We're not coming back" essentially. 

[7]                So there is no question that the position of the plaintiff was absolutely clear and there is no question that anyone could have been misled by their position but I see nothing unusual or exceptional in what transpired.  It is, I am sure, much more the rule than the exception that examined parties do not have all the information that is relevant at their fingerprints and are, in my view, reasonably required if necessary to re-attend on a follow-up examination for discovery. 

[8]                The law is fairly clear on that and quite clear on what will be examined or examinable so as to avoid abuse of the process, and as Mr. Unruh referred in passing to the examinations ad infinitum, I agree with Mr. O'Flynn, I see no indications in this particular case that one risks that abuse or that this examination will lead to something ad infinitum.  The follow-up examination is appropriate and will proceed.

[9]                Of considerably more concern, I think,  and certainly I think more of the energies of counsel were directed to the question of whether or not Mr. Cowan will be obliged to attend with Dr. Makin and while I have decided that he will, it is not as clear an issue, if I could compare the two, as is re-attendance on discovery.  I suppose there is no good reason to compare the two, but it seems to me from reading the various medical opinions, some verge on, or perhaps really are speculation and I think there is no shame in that because I do not think even medical experts would ever purport to know everything or be able to answer every question, and certainly in the case before me today, various of them have been clear to not do that. 

[10]            I do not see agreement by any means as to what Mr. Cowan is suffering from, nor is there agreement as to cause, and I realize that one is not to be subjected to limitless or unending IMEs until some medical agreement arises.  That is not the standard at all.  The standard as counsel have clearly and well expressed it is to give the parties an equality in the sense of a level playing field, to put it in the vernacular, or to deal,.  There are a number of factors that can justify an IME and I am not going to exhaustively go through Walch v. Zamco, 2008 BCSC 433 ; I am not going to tick each one off; I do not think that is an appropriate process here, but I am satisfied that this case comes within sufficient of those circumstances to authorize it. 

[11]            I am particularly alert to the sort of, I think, speculation or hinting about Mr. Cowan's problems that various of the experts comment on.  One or the other may say, for example, "What I see here is the thoracic outlet syndrome, but that's not my area, you know I'm not a physiatrist or whatever, but I see the symptoms in my own patients that come in for problems that affect my area of expertise".  It may have been Dr. Fry, the vascular surgeon, who made that comment, but what really struck me was Dr. Anton's comment in his follow-up letter when he was referred to Dr. Fry, the vascular surgeon's, observations of TOS and the speculation as to it being there and as to its -- what did he say -- "vasculogenic" or "neurogenic cause". 

[12]            It was interesting that Dr. Anton, and again I take the liberty of paraphrasing, said in his follow-up letter "Well, that's interesting.  I didn't see that and maybe it's developed since I saw it".  I think it is a fair area of inquiry for the defence to say, "Well, if someone of Dr. Anton's expertise and specialty, being a physiatrist, did not see it, if he a plaintiff's expert speculates that it may have developed, we are entitled to have a look at that". 

[13]            This also ties with the right of further examination.  That letter of Dr. Anton saying, "You know, this may have arisen since I examined this man" was produced in January of 2007, was it or 2006?

[14]            MR. O'FLYNN:  October of 2007.  Oh, are your referring to the letter in short form --

[15]            THE COURT:  The short letter.

[16]            MR. UNRUH:  Yeah, it was disclosed about one month after the --

[17]            THE COURT:  No, not disclosure, when did he write it?

[18]            MR. UNRUH:  January 2007.

[19]            THE COURT:  That is what I thought.  Thank you. 

[20]            January of 2007 and did not come to the attention to the defence until October of 2007; in other words, after the examination for discovery took place in September 2007.  I think Mr. O'Flynn's submissions on that point make sense to me that had he known about that letter and had he known about Dr. Anton's musings I will say (and I do not mean that in a pejorative or trivializing way at all) he would have been within his rights to examine, I should think, Mr. Cowan on that aspect of it, a developing syndrome or problem.

[21]            I digress slightly on this point to go back to my reasons for allowing the further discovery and I imply absolutely nothing amiss or inappropriate on the part of the late disclosure.  Medical opinions are important, often complicated things and I am not critical of anyone for disclosing or not disclosing the document.  It is just a simple matter of chronology in my view.

[22]            In any event, as I say it is evident to me that if anything sort of emerges from what I have heard today and the various medical opinions I have read, it is that this problem or these problems perhaps better expressed that Mr. Cowan has are not simple.  I am not of the view that they were addressed in a sufficient analysis by Dr. Hawk when it comes to a potential neurological problem so as to conclude that while anything a neurologist sees or concludes will just be a second opinion.  Again, I do not detract from Dr. Hawk's work or opinion at all, I just simply say I am not of the view that he was expressing himself or seeing a problem that somebody else is just going to double up on. 

[23]            So I think it is a complicated analysis that Mr. Cowan has to go through to find out what is really the problem, and I also think that there is an element in all of this of a developing nature.  It is interesting, I guess I repeat myself, that Dr. Anton did not see the problem, Dr. Fry saw it later on, and there is sufficient development in either the problem or the awareness of the problem for Dr. Amin to have sent Mr. Cowan off to a treatment specialist, Dr. Penzarut who, to be absolutely clear, is a neurologist.  That suggests to me that there is a greater understanding as time goes on of a potential neurological problem with Mr. Cowan and it strikes me that the defence in that circumstance within its rights to require a neurological examination and opinion.

[24]            So the orders will go.  The problem, however, we have is that Mr. Cowan apparently is halfway around the world and I do not think for a second here nor has there been any suggestion, absolutely no inference on my part that he is travelling for anything but good faith reasons.  He is off in India, I guess, and good for him, you know.  The problem I have with that is that how realistic is it at this juncture to order him to be back in Canada at any expense or cost by next Wednesday?   It is a long trip for someone of Mr. Cowan's age.

[25]            I am going to make the order that he attend -- what I intend to do is to leave some room to require that Mr. Cowan present himself for further examination and an independent medical examination by a neurologist.  I say by “a neurologist” rather than by “Dr. Makin” because I am keenly aware that specialists are in great demand, that it may turn out that if this time is lost, Dr. Makin is not available for, I do not know, three months where some other neurologist might be, at a time and place to be arranged by counsel, failing which by further order of the court. 

[26]            Now I have not forgotten that the trial is approaching, that is the way it is.  There are safety valves built of course into this process.  Mr. Cowan can be further examined all the way up to 14 days before trial without order, well, an order has just been given, but that time can be abridged on application if necessary or by consent and that may have to happen if Mr. Cowan's travels keep him away for as long as it might. 

[27]            Secondly, obviously if he simply cannot be brought back to Canada in a reasonable orderly way to do this then either (a) that may necessitate an adjournment which would be very, very unfortunate given that it is already four years since the accident, or (b) the court may have to direct the admission of this particular bit of evidence notwithstanding the provisions of Rule 40A.  In other words, there are solutions out there.  They are not the best, but I do not purport to apply any of them .obviously, but I just do not see hauling this man back from India by next Wednesday.  It strikes me that will create a very disruptive situation. 

[28]            I heard much on the notice to Mr. Cowan.  Again, I imply nothing.  I do not conclude that anybody has been acting in any precipitate way here, so that is where we are, but then to have specific reference to the motion, the order will go, Madam Registrar, paragraph (1) I can say that the plaintiff will attend at an independent medical examination by neurologist Dr. Vance Makin or by such other neurologist as counsel for the defendants may direct at a time and place to be set.  That is my intention.

[29]            Is paragraph (2) an issue? 

[30]            MR. O'FLYNN:  Which one is that, sorry?

[31]            THE COURT:  Paragraph (2) of the motion, we're talking about providing documents, et cetera.  I did not hear much by way of submissions.  It sounds to me like progress was being made there and Mr. O'Flynn said, "Well, you know, a lot of documents have been given".  I should have said that for the record, that a great deal of the information requested at the discovery of course was provided.  This is some outstanding information.  I do not know that I even have to make an order, do I, Mr. O'Flynn?

[32]            MR. O'FLYNN:  No.  Number (2) is -- is with respect to the examination of the IME neurologist that we will provide the notes –

[33]            THE COURT:  Oh, I'm sorry –

[34]            MR. O'FLYNN:  Yeah.

[35]            THE COURT:  -- that's the -- Lemon and whatever –

[36]            MR. O'FLYNN:  Yeah, so that's Mori and Lemon, I don't believe my friend would have any problems with that.

[37]            THE COURT:  Mori and Lemon yes, that's fine, that'll go.  Paragraph (2) will go.  Yes.

[38]            MR. UNRUH:  Well, I would ask for a report in any event if my friend obtains it.

[39]            MR. O'FLYNN:  Well, the case law is that –

[40]            THE COURT:  No, we're not going there.  No, you get the notes and he may never give you the report and you could mention that to the judge and draw whatever inference at a jury and draw whatever inferences are out there, but no at this late juncture I'm not going to jump in and order that you get a report.  But you will get the notes and observations, yes. 

[41]            Paragraph (3) requiring that.  I guess it is part of the IME, yes.

[42]            MR. O'FLYNN:  Yes, although the two days might be a problem.

[43]            THE COURT:  It will, so I am going to make the order, Madam Registrar, on paragraph (3) that the plaintiff shall -- it will start with: the plaintiff shall sign and deliver to counsel six originally signed authorizations.

[44]            MR. O'FLYNN:  Yes, just prior to the IME date.

[45]            THE COURT:  Yes.  That's fair.  Yes, prior to the IME date.

[46]            MR. O'FLYNN:  Yes.

[47]            THE COURT:  Oh, and the -- Mr. Cowan at paragraph (4) shall attend the office of an official court reporter at a time and place to be agreed upon by counsel for examination for discovery.

[48]            MR. UNRUH:  Is this Mitchell Preston, Your Honour?

[49]            THE COURT:  Well, it could be Mitchell Preston if you like.  I am just saying --

[50]            MR. UNRUH:  Oh, yes, because there is actually -- I think there is actually a company Official Court Reporter.  That's why I --

[51]            THE COURT:  Oh, I see, I see.  All right, well --

[52]            MR. UNRUH:  Yes, I believe that's so.

[53]            THE COURT:  -- my intention is not to limit you to one particular reporter again.  Come September, the roof falls in, you know, for litigators and everybody is busy, so you may -- I think express it in a more generic way that he is to attend.

[54]            MR. O'FLYNN: So the -- the one issue of course is these neurologists who have some specialty in the issue of TOS are very difficult to come by and these appointments are -- I am sure my friend knows this from his own experience, so I am concerned with -- I guess like you said there could be an adjournment of the trial -- there could be some Rule 40A -- how would we deal with this -- how will the order affect the Rule 40A abridgement issue?

[55]            THE COURT:  I have no idea.  I speculated that you may have to ask -- you may have to -- at trial the only person who can make a decision on the admissibility of a late report say is the trial judge.

[56]            MR. O'FLYNN:  Right and I can bring --

[57]            THE COURT:  Of course a pre-trial conference will not help you there or anything like that.  I am afraid that that is an issue, but I am trying to say on the record here on the one hand I do not attribute any bad faith or anything like that to Mr. Cowan who is away.  On the other hand, yes, I could make an order that he be here next week and I could -- that would be a huge inconvenience or worse to him and what I am saying is that the consequence of recognizing his personal life out there and his right to a holiday or whatever may result in an examination and a consequent report that is not within the terms of Rule 40A for no fault of the defence that I can see. 

[58]            MR. O'FLYNN:  Right, so we could always submit your written reasons --

[59]            THE COURT:  Get a transcript and put it in file if you wish --

[60]            MR. O'FLYNN:  That there was an order for the IME and that we could not get a date until this date and he could not attend until this date and --

[61]            THE COURT:  Yes and let the court deliberately --

[62]            MR. O'FLYNN:  -- because sometimes the dates -- the reports don't necessarily come immediately -- some doctors might need a week or two to -- especially on a complicated case.  We would certainly provide it as soon as it was available from the doctor.  I just want to ask my friend on the record, will he still try to get Mr. Cowan to -- obviously -- I don't know if he has contacted him and if there is a possibility because we have to notify Dr. Makin if there is a cancellation if he --  I am not sure that he has asked actually.

[63]            THE COURT:  I do not know either, because --

[64]            MR. UNRUH:  I do not know where he is.

[65]            THE COURT:   No, you do not have to answer it.  You know what he has said or not or done or not vis-ŕ-vis his own client is uncomfortably close if not completely within solicitor-client privilege, so I am not even going to ask him.  I invite you to discuss this.  Please counsel, talk to each other about this.  I am trying to give you as much latitude.  But I will be absolutely clear.  If there isn't -- now that orders have been made -- some reasonable attempts to implement them with, you know, with the lubricant if you will in the process that I think counsel brings to cases, then there will be all kinds of inconvenience out there that the court may not care where in the world Mr. Cowan is.  That he will just have to get back here in three or four or five or six days or something and then that will be that. 

[66]            I do know that there are such things as email and I do know that there are such things as internet cafes everywhere in the world and I do not know whether Mr. Unruh has an email address for Mr. Cowan or not, but you know he is apparently -- Mr. Cowan is a fairly sophisticated individual, so one hopes there way of communicating with him, let him know what happened today and where it's at and that little discussion between counsel could move this matter on.  

[67]            I think that is it for today.  Thank you.

[68]            MR. UNRUH:  Costs in the matter, I guess?

[69]            THE COURT:  Costs in the cause, yes.

“Master Baker”