Haleta v. Jehn and others,


2008 BCSC 1522


Date: 20081023
Docket: M062408
Registry: Vancouver


Tori Arthur Haleta



Leigh Colin Jehn and Nirpal Singh Mann



Insurance Corporation of British Columbia

Third Party

Before: Master Taylor

Oral Reasons for Judgment

In Chambers
October 23, 2008

Counsel for Plaintiff

J. Clasby

Counsel for Defendant Nirpal Singh Mann and Third Party


R. Dempsey

Place of Trial/Hearing:

Vancouver, B.C.


[1]                THE COURT:  This is an application by the defendant and third party for two orders:  one that the plaintiff attend the offices of Dr. Gabriel Hirsch, a physiatrist, on November 5th, 2008; and the second for an order that the plaintiff attend for a work capacity evaluation on the 18th of November, 2008, with Mr. Cook.

[2]                Briefly, the background is that the plaintiff was struck by a motor vehicle on the 8th of May, 2005.  It appears that the driver of the motor vehicle was convicted of criminal negligence in the operation of the motor vehicle.  It apparently arises out of a situation where Mr. Haleta, the plaintiff, went to the rescue of a damsel in distress only to be knocked down and run over by the aggressor to that damsel in distress.  In any event, Mr. Haleta suffered extensive injuries, both soft tissue and otherwise, and is claiming loss of income, loss of opportunity and loss of capacity.  Mr. Haleta has been examined by various medical practitioners and specialists in their field, on behalf of the plaintiff, Dr. le Nobel on or about the 29th of January, 2007; on behalf of the defendant, Dr. Maloon on June 11th, 2007; on behalf of the plaintiff, Dr. Reid, a psychologist, in July and again in September as well of 2007; and then on behalf of the defendant and third party, Dr. Steinberg, a psychiatrist, on July 11th, 2008.

[3]                The defendants say that they should be entitled to an examination of the plaintiff by a physiatrist, namely Dr. Hirsch, because when the plaintiff was examined on their behalf by Dr. Maloon in June they did not have Dr. le Nobel's report and did not have it in their possession until the 7th of December, 2007.  My comment to that effect is that they are fortunate to have received it when they did.  They did not have to receive it until 60 days prior to the trial date, which is the 31st of August, 2009, with a judge and jury.

[4]                It was submitted by defendant’s counsel that Dr. Maloon is an orthopedic surgeon, whereas Dr. Hirsch is a physiatrist, and it is important to have a rebuttal report, if you will, from a physiatrist in order to put the defendants on equal footing.  I disagree with that submission.  I disagree because as has been pointed out to me, Dr. Maloon had extensive clinical and consultation reports from a number of practitioners, including Dr. Jaworski, who was a treating physiatrist.  As well, he had the clinical records and notes from Mr. Haleta's treating general practitioner, among others.  There comes a time when the parties can no longer seek to usurp the function of the court or the jury by asking for continuous expert reports from various specialists.  These are matters for counsel to deal with by way of cross-examination, especially when there are conflicting opinions.  There is nothing new here that has arisen that would give the plaintiff an unfair advantage over the defendant.  Nothing of concern should arise merely by the fact that the defendants chose to have the plaintiff examined by an orthopod and only sometime later find out that counsel for the plaintiff had their client seen by a physiatrist.  Accordingly, I dismiss paragraph 1 of the applicants' notice of motion.

[5]                A number of specialists/physicians who saw Mr. Haleta for other matters have recommended that he be seen by experts in functional and vocational capacity.  In particular Dr. Reid, who is a psychologist, recommended, and I believe that Dr. le Nobel -- correct me if I'm wrong -- made a similar recommendation.  It would seem to me that it would be appropriate for both parties to have the plaintiff seen by somebody to make a vocational capacity evaluation of Mr. Haleta, which would be of assistance to the court and to the jury in this particular case.  Accordingly, I order that Mr. Haleta do attend the offices of Mr. Christopher Cook for the purposes of a work capacity evaluation to be performed by Mr. Cook, and that is to be held on Tuesday, the 18th of November, commencing at 9:00 a.m. at suite 202, 20689 Fraser Highway, Langley, British Columbia.

[6]                As there has been divided success in these matters, I think both parties should pay their own costs. 

[7]                (SUBMISSIONS)

[8]                THE COURT:  We will use the wording of paragraph 2 for the order, then.  Depending upon the availability/convenience of both.

“Master Taylor”