Critchley v. McDiarmid,


2009 BCSC 28


Date: 20090107
Docket: M054782
Registry: Vancouver


David Anthony Critchley



Joan Marie McDiarmid


Before Master Tokarek

Oral Reasons for Judgment

In Chambers
January 7, 2009

Counsel for Plaintiff

J. Stanley

Counsel for Defendant

P. Armstrong

Place of Hearing:

Vancouver, B.C.


[1]                THE COURT:  The defendant applies for an order compelling the plaintiff to attend for an independent psychiatric medical examination in this motor vehicle accident litigation.  The rationale for the examination by a psychiatrist was not seriously challenged by plaintiff's counsel.

[2]                MR. STANLEY:  The only opposition is the time element and the prejudice, Your Honour.

[3]                THE COURT:  In any event, the material indicates clearly that there is adequate justification to have a psychiatrist examine the plaintiff.  There are two medical reports that indicate a connection between the plaintiff's stress or anxiety and/or depression and the physical symptoms associated with the injuries sustained in the accident.

[4]                The plaintiff submits that this IME request was made too close to the trial date and as a consequence of this timing, the plaintiff is prejudiced because the trial might have to be adjourned.  Counsel submits that if the defence produces a report from a psychiatrist, the plaintiff would not be able to find a psychiatrist between now and the March trial date to respond adequately and consequently the plaintiff would be left with either gambling on being able to address the defence report without assistance from an expert or seeking an adjournment to obtain rebuttal evidence.

[5]                Although the defence might have been able to and in fact did apply for this IME earlier, this was not a case where the defence knew of a certain state of affairs and took no action and is now scrambling within the 60 day limit to correct that oversight.  The issue of the defendant’s knowledge relative to the timing of the application for an order is a common theme in several authorities to which I was referred where such an application was denied.  Here, although there is some evidence to suggest that there may have been knowledge of this psychiatric overlay or difficulty several months ago, the real significance of it was not apparent until two reports were produced very recently.

[6]                In the authorities presented by plaintiff’s counsel, there is no indication of the importance of obtaining the IME that was the subject matter of those various applications.  Here, the IME is or may be very significant.  The defence wants to examine whether the symptoms complained of by the plaintiff are due entirely, or largely, to a cause other than the motor vehicle accident, specifically a pre-existing condition of stress and anxiety and depression and all the plaintiff’s difficulties associated with that condition.

[7]                On the basis of the reports I’ve read, that is not an unreasonable concern.  When the plaintiff was prescribed and took appropriate doses of ant‑depressant medication, his physical symptoms from the MVA by and large resolved.  It may be that anybody taking that medication would have felt the same consequences, as plaintiff's counsel suggests, but that is something the IME will address.

[8]                The second point of significance in this matter is that defence counsel originally scheduled the IME for December 17, approximately 90 days before trial.  Any report would have been available 60 days prior to the date of trial.  That IME did not take place because the plaintiff was out of town and could not attend on that occasion.

[9]                The plaintiff is entitled to a vacation, and he is not to be held at fault for not being available to attend the IME appointment.  Defence counsel might have scheduled that IME even prior to December but did not, in part because the reports previously referred to were not then available.  Plaintiff’s counsel himself cancelled an assessment by his own psychiatric expert scheduled for September because he felt it wasn’t necessary.  Apparently defence counsel shared that opinion until presented with further opinions.

[10]            In any event, that is another distinguishing feature from the authorities to which I have been referred.  Defence counsel set up an IME in an appropriate time, not an ideal time, but still 90 days before trial.  It was the plaintiff's absence, albeit excusable, rather than defence inattentiveness that forced the current application.

[11]            With that in mind I turn to the authorities presented by plaintiff’s counsel.  Those authorities, which I will subsequently refer to in greater detail, are all distinguishable from the circumstances of this case and are of little, if any, value as precedent because of the absence of any adequate description of the facts giving rise to the respective decisions.

In all of those authorities, the presiding judge or master somehow came to the conclusion that the trial would be adjourned if the IME was ordered and consequently denied the application.  I say “somehow” because the basis for that conclusion is never stated in any of the reasons.  I have great difficulty accepting that my colleagues would or could come to that conclusion without some evidence as to why an adjournment would be inevitable, but regrettably, I cannot discern what evidence existed in any of the decisions.  To say that a trial will be adjourned simply because an IME is ordered presupposes a state of affairs I am not prepared to accept.  In most cases there are many possible outcomes if the order for an IME is granted including, but not limited to:

(1)        There may not be a report.  There is no requirement to obtain or present a report and it may very well be that the IME is requested to assess the validity of the contents of the plaintiff’s reports;

(2)        The defence expert may agree with the conclusions of the plaintiff’s expert or in this case, may come to the very same conclusion that plaintiff's counsel did when he cancelled his client's initial appointment with his expert;

(3)        The report may be neutral and unable to come to a conclusion;

(4)        The report may be mildly detrimental to the plaintiff's case and not require any further action by the plaintiff;

(5)        The report may contain opinion evidence that could be readily and quickly responded to by the plaintiff’s expert without examination of the plaintiff;

6)         The report may cause some consternation because of some new finding, determination, or opinion that the plaintiff’s expert hadn’t thought of which may necessitate some further work on the plaintiff’s part, but which may be accomplished within the time between the receipt of the report and the trial;

7)         The report may contradict all of the plaintiff’s evidence but be unassailable and just something the plaintiff has to deal with without reference to any further expert evidence.

[12]            In all of those scenarios there would be no adjournment of the trial.  I would expect that an adjournment would be a consideration only when there was a report prepared and presented, it materially contradicted the plaintiff’s evidence, there was, or could be, an answer to the defence report, and there was no ability for the plaintiff to get that evidence before trial.

[13]            If those circumstances arose, the trial would still not necessarily have to be adjourned.  It would still be open to plaintiff's counsel to argue before the trial judge all that he did in front of me, namely to exclude the report on the basis of it being prepared late and that there is prejudice and specify what that prejudice is.  Here, no prejudice has been specified.  I have been asked to assume that because the plaintiff has been out of work for two or more years, he needs the money from the award and that it would be prejudicial to adjourn the trial.  There is no affidavit material to suggest any of this.

[14]            It may be that the defence report would be excluded if the judge found the defendant indulged in some untoward conduct resulting in a report that was out of time.  It is not automatic that the trial will be adjourned and I have no reason to believe that it will be.

[15]            Turning to the authorities, they are all distinguishable in any one of a number of respects.  In the Giles case Master Horn concluded:

I do not doubt this principle, but where, as here, the defendants have had, since at the earliest June 2001 when they received the report of Dr. Beerman, and at the very latest March 2002 when the discoveries were completed, full knowledge of the plaintiff's physical and psychological difficulties, it is, I hold, too late for them to demand their rights.  They have, for whatever reason, deferred taking action until it is too late to do so without prejudice to the plaintiff.

[16]            In the case at bar the defendants did not have the full knowledge of the plaintiff's physical and psychological difficulties until these last two reports were provided.  They did not, “for whatever reason, defer taking action until it was too late”.  Further, there is no evidence of prejudice, as apparently was the case before Master Horn.

[17]            The Ruttan decision of Master Patterson similarly raises the concern of an adjournment of the trial.  I do not know what evidence Master Patterson relied upon to come to that conclusion, but he decided that the application was not made in a timely fashion.  It was within the 60 days.  Here, we are five days within the 60 day limit, and that is largely due to the plaintiff being away when the IME was first scheduled.  In any event Master Patterson said:

It is quite likely that this trial would have to be adjourned as a result if the orders were made.  It is also likely that the defendants would make an application to remove the case from the Rule 66 procedure on the basis that there are now two expert opinions, and additional cross-examination will be required.

[18]            That, in and of itself distinguishes the decision from the case at bar.  Evidently Master Patterson made a calculation and concluded that because the trial would go beyond two days, it would be removed from Rule 66, and consequently adjourned.  That is not the case here.

[19]            The Cruikshank decision is another decision of Master Patterson.  There the application was made exactly one month prior to trial and the earliest the report would be available would be three weeks prior to trial.  He again concluded that it would inevitably or almost inevitably lead to the adjournment of the trial to the prejudice of the plaintiff.  He does not say why or how he came to that conclusion.  Perhaps Master Patterson had some affidavit material of the plaintiff’s impecuniosity, serious health concerns if adjourned, or such similar evidence.  I do not have that or any similar evidence.

[20]            Furthermore, one of the factors in Cruikshank that is absent here is the concern about the memories of the witnesses’ being less reliable over time.  I understand that liability is denied here but I was told it was more on the basis of the policy limit than it was on the basis of the merits of the incident itself, which I am told was a rear-end accident.

[21]            Master Patterson concluded that the defendant:

. . . has sat on her hands and, in spite of knowing about the plaintiff's previous injury and the numerous previous referrals to orthopaedic surgeons, has done nothing in a timely fashion.

I find that is not the case in the matter before me.  

[22]            Next is the decision of Master Groves, as he then was, in Mackichan.  Master Groves referred to the court being required to consider fairness between the parties and a balancing of prejudice when a request for a late medical examination is made.  I have found that the request was not particularly late in this instance.

[23]            The comment about the balancing of prejudice is of some significance in the context of submissions made in the case at bar with respect to when defence counsel could or would be able to seek an IME.  Plaintiff's counsel submitted that whenever the plaintiff would be unable to obtain expert evidence to rebut or deal with any defence IME report, an order should not be made.  Counsel indicated that his dilemma would be the same even if this application was brought in December because he would need approximately one year to get an appointment with his own expert.  The logic of that seems to be that unless defence counsel applied for the psychiatric IME a year or more in advance of the trial date, the application should be denied because plaintiff's counsel would be in exactly the same position of not being able to get his expert to deal with it and prejudiced because of an adjournment.  I utterly reject that logic

[24]            I believe the more appropriate approach is to balance the prejudice of a potential adjournment against the prejudice to the defendant in not obtaining relevant evidence.  Here the requested IME is not with respect to an inconsequential or insignificant issue.  The defendant seeks to reasonably establish that the plaintiff’s complaints are wholly or largely unconnected to the MVA.

[25]            The balance of the authorities are similarly either distinguishable or unhelpful.  Master Barber, in the Bubra decision said:

. . . the defendant has had full opportunity to have this matter brought forward at an earlier date so that these matters could be dealt with in a reasonable way.  For their own reasons, they have not done so. 

I do not find that to be the situation here.

[26]            The last authority, the Barron case, is another decision of Master Patterson.  At paragraph 21 he said:

. . . it seems to me that it is the obligation of the defence to not sit and wait until the last minute and then scramble to bring an application like this on.

With all due respect, the timing of the application without more, is largely irrelevant.  All of the authorities relied on by the plaintiff came to the conclusion, in some fashion unknown to me, certainly not discernable from the reasons, that the timing would lead to an adjournment and that an adjournment would prejudice the plaintiff.  Apart from the Mackichan decision, there is nothing to suggest that any consideration was given to balancing the prejudice to the plaintiff against that of the defendant.

[27]            In this case, I have no evidence to conclude that there would be an adjournment or that if that was so, it would amount to a prejudice that outweighs the prejudice to the defendant in not being able to obtain material evidence going to the heart of the plaintiff’s claim.  Consequently I grant the application and order that an IME take place as requested.

[28]            During the course of submissions I asked the clerk to make a call to the registry and I am advised that ten-day trial dates are available as early as January of next year, January 2010, which is approximately nine months from the scheduled date of March of 2009.

[29]            In as much as liability has not been formally admitted, costs will be in the cause.

“Master Tokarek”