Blog

Discussion 

[21]         The narrow issue resolved on this application is whether the plaintiff should have been required to attend an examination by Dr. Piper pursuant to Rule 7-6 for the purposes of obtaining “purely responsive” evidence to Dr. MacKean’s written opinion. 

[22]         I concluded on March 28^th that such attendance was neither required nor justified on the evidence presented. 

[23]         The defence concedes that it is too late to obtain an order under Rule 7-6 for an examination that goes beyond a purely responsive purpose.

[24]         In addition, I did not understand the defendant to be requesting an extension of time for delivery of a report from Dr. Piper even if no examination occurs. On that note, there is no evidence which might justify such an order as Dr. MacKean’s report has been in the defendant’s possession for nearly five months.

[25]         Similar applications have been considered by the court in the following cases:  Wright v. Bauer, 2010 BCSC 1282; Luedecke v. Hillman, 2010 BCSC 1538; Boudreau v. Logan (December 19, 2010), New Westminster M120748 (B.C.S.C.); and Crane v. Lee (September 16, 2010), New Westminster M1000793 (B.C.S.C.).

[26]         Wright v. Bauer is the first reported decision which addresses the purpose of new Rule 11‑6 (4).

[27]         For this discussion, it is helpful to set out Rules 11-6(3) and 11-6(4):

(3)        Unless the court otherwise orders, at least 84 days before the scheduled trial date, an expert's report, other than the report of an expert appointed by the court under Rule 11-5, must be served on every party of record, along with written notice that the report is being served under this rule,

            (a)        by the party who intends, with leave of the court under Rule 11-3 (9) or otherwise, to tender the expert's report at trial, or

            (b)        if 2 or more parties jointly appointed the expert, by each party who intends to tender the expert's report at trial.(4)        Unless the court otherwise orders, if a party intends to tender an expert's report at trial to respond to an expert witness whose report is served under subrule (3), the party must serve on every party of record, at least 42 days before the scheduled trial date,

            (a)        the responding report, and            (b)        notice that the responding report is being served under this rule. 

[28]         In Wright v. Bauer, the court recognized that Rule 11-6(4) “filled a lacuna” in the Rules governing civil procedure in this province: para. 12. Parties are now specifically governed by a Rule regarding delivery of responsive written expert evidence. Prior to this Rule’s enactment, the delivery of such evidence was governed by common law principles.

[29]         In that case, the application for an independent medical examination was brought nearly one month before the defence would have been required to serve a responsive report.

[30]         In dismissing the defendant’s application, the court found that the applicant had not met the necessary evidentiary threshold justifying an order under Rule 7-6: para. 21.

[31]         The same result is found in Boudreau v. Logan and Crane v. Lee, supra.

[32]         In contrast, the court in Luedecke v. Hillman was satisfied that an order should go requiring the plaintiff’s attendance at an examination. 

[33]         This decision of Cullen J. concerns an appeal from a Master’s order that required the plaintiff’s attendance at a medical examination “to provide a response report pursuant to Rule 11‑6(4).” The Master’s reasons for doing so were as follows:

[9]        Firstly, the application is for an IME for a responding report. The deadline set out in the rules for a responding report is 42 days, pursuant to Rule 11-6(4). Based on the submissions of the defendant, the report will be delivered prior to that deadline. The examination is scheduled for this week, and I will point out that this application is brought on a short leave as a result. 

[10]      Secondly, the determination as to whether the report is properly responsive - whether the report is admissible and for what purpose - is for the trial judge. Savage J in Wright considered the CNR case for purposes of interpreting what is appropriate as rebuttal evidence, but in my view, the definition in CNR is not conclusive here. As the defendant submits, Stainer suggests a broader approach to what is proper rebuttal. Dr. Reebye says he needs an examination to provide an opinion in response to the plaintiff's expert, and it is for the trial judge to determine whether or not the report which is ultimately produced falls within the scope of Rule 11-6(4). 

[11]      Thirdly, it has not been established that, to the extent a balancing of prejudice is to be conducted, the balance here favours the plaintiff. The examination will take place 74 days before trial, and as I said earlier, the report will arguably be in time under Rule 11-6(4). The plaintiff will have to attend for an examination, but the situation is not what it was in White v. Gait, 2003 BCSC 2023, where the examination was to take place within 30 days of trial. The concern of Master McCallum in White was that the plaintiff would be involved in preparing for trial. That kind of difficulty or prejudice is not present here. 

[12]      On the other hand, the defendant is prejudiced in not having a report for trial. While it was a deliberate choice on the part of the defendant not to obtain a report, it was based on the state of the medical evidence up until the 84-day deadline. The delivery of Dr. Armstrong's report at the 84-day deadline has altered that situation and I am satisfied that the defendant would be prejudiced proceeding without a responding report in the circumstances.at para. 6.

[34]         The court upheld the Master’s order finding that:

[52]      I thus conclude that what is referred to in Rule 11-6(4) is not akin to rebuttal evidence such that as that called by the plaintiff in response to the defendant’s case, with its consequent limitations. Nor is it akin to expert evidence that responds generally to the subject matter of the plaintiff’s case. Rather, it refers to evidence that is “purely responsive” to the medical evidence which the other party has called.

And further:

[54]      I agree with the conclusion of Mr. Justice Savage in Wright v. Brauer, supra, to the effect that there is an evidentiary threshold to be met before an order under Rule 7-6(1) should be made in contemplation of an expert's report under Rule 11-6(4). That threshold is different from that for ordering an expert's report under Rule 11-6(3). To reach the requisite threshold under Rule 11-6(4) the applicant must establish a basis of necessity for the examination to properly respond to the expert witness whose report is served under subrule (3) by the other party. It is not simply a matter of demonstrating a need to respond to the subject matter of the plaintiff's case.

[35]         In my view, the principles enunciated in Luedecke and Wright are consistent and entirely reconcilable. The difference between the outcomes in these two cases lies in the facts.

[36]         In both cases, the court concerned itself with the evidence presented to support the necessity of an examination as well as the question of prejudice.

[37]         Here, the evidence from Dr. Piper as to the necessity for an examination is rather general in nature. Dr. Piper refers to the reports of both Dr. Grimwood and Dr. MacKean when in fact the responsive opinion would concern only the latter’s report. Unlike the evidence from the proposed examiner in Luedecke, Dr. Piper does not specifically identify the “medical evidence” (other than the reports themselves) that can only be addressed if a physical examination of the plaintiff occurs. Rather, Dr. Piper’s evidence suggests that an examination is necessary to respond generally to the subject matter of the plaintiff’s case and, as such, is no justification for the order sought: Luedecke at para. 52.

[38]         Nonetheless, even if Dr. Piper’s evidence does provide the necessary justification, the prejudice to the plaintiff in attending an examination outweighs any prejudice to the defence in denying the order sought.

[39]         The plaintiff in Luedecke could not reasonably argue prejudice based on the timing of the delivery of any new report. The report would be delivered in compliance with Rule 11-6(3). That is not the situation here. The defendant seeks to address this prejudice by asking the court to extend the time for delivery of Dr. Piper’s report and thus abridge the Rule. However, the only justification for such an order would be that the defendant did not have an opportunity to make this application in a timely manner upon receipt of Dr. MacKean’s opinion in October 2010. No evidence is presented explaining that delay.

[40]         Furthermore, Luedecke represents a situation whereby the plaintiff’s case significantly changed upon the delivery of expert reports. Until that time, the defence did not appreciate the case that was expected to be met. That is different from the circumstances here where, again, Dr. MacKean’s opinion has been known to the defence for several months.

[41]         Lastly, on the question of prejudice, the defendant’s application comes at a time when the plaintiff could or should be preparing for trial. An examination by Dr. Piper would disrupt that preparation and should not be ordered: White v. Gait, 2003 BCSC 2023; Benner v. Vancouver (City), 2007 BCSC 1998.

[42]         As observed by the court in Benner v. Vancouver (City), a party “who takes no timely steps to exercise its rights under [Rule 7-6] does so at its peril”: para. 39.