2006 BCCA 79 Li (Guardian ad litem of) v. Sandhu

Before:	The Honourable Madam Justice Rowles
	The Honourable Mr. Justice Mackenzie
	The Honourable Madam Justice Levine

Oral Reasons for Judgment

R. Marcoux	Counsel for the Appellant
M.A.S. Forsyth S.B. Stewart	Counsel for the Respondents
Place and Date of Hearing:	Vancouver, British Columbia 13 February 2006
Place and Date of Judgment:	Vancouver, British Columbia
17 February 2006

[1] MACKENZIE, J.A.: This is an appeal, with leave, from the order of a chambers judge in a personal injury action directing that Dr. Roy O’Shaughnessy, a psychiatrist retained by the appellant, attend for examination under Rule 28 of the Rules of Court after reviewing a video of surveillance of the appellant obtained by the respondents. The chambers judge reversed a decision of a master who had refused the order.

[2] The appellant is the plaintiff in an action for damages for personal injuries sustained in a motor vehicle accident on 14 April 2000. The appellant suffered a serious brain injury in the accident; the extent of her recovery and continuing disability is in issue. The trial of the action is set to start on 6 March 2006.

[3] The action was originally set for trial in September 2003. In June 2003, the appellant served, pursuant to Rule 40A, a medical-legal report prepared by Dr. O’Shaughnessy that contained an opinion on the extent of the appellant’s level of function and disability. Later that month the respondents made a settlement offer that was accepted by the appellant’s guardian ad litem on 18 July 2003. The trial was adjourned by consent. In early July, the respondents commissioned video surveillance of the appellant by private investigators. The results of more than 40 hours of surveillance were received after the settlement. The respondents then repudiated the settlement in October 2003, claiming rescission based on misrepresentation of the appellant’s disability.

[4] In March 2005, the appellant applied for an order to enforce the settlement. Before that motion was heard, the respondents applied for Rule 28 examinations of Dr. O’Shaughnessy and Dr. Barbara Allan, a neurologist who has examined the appellant. The respondents were unable to serve Dr. Allan with the motion within time and it proceeded only with respect to Dr. O’Shaughnessy.

[5] The status of the settlement was the central issue before the master and the chambers judge. The chambers judge said (at paras. 25 and 26):

It is important to appreciate firstly, that Dr. O'Shaughnessy's observations are necessary, not only for the motor vehicle accident damage assessment, but also for the separate question of misrepresentation. The plaintiff is set to bring on his motion for approval of the settlement at any time. The hearing of that application is intended by the plaintiff to dispose of that issue and end the action.

Secondly, bearing in mind that the settlement was based in large part on Dr. O'Shaughnessy's report, he clearly has "material evidence". What he saw and inferred from his examination of the patient is evidence of fact which goes to the foundation of the defendants' case for rescission.

It is apparent from the reasons of the chambers judge that the status of the settlement was the dominant issue. The examination of Dr. O’Shaughnessy for trial purposes was clearly a secondary consideration, overshadowed by the materiality of his opinion to the settlement.

[6] The respondents’ position was that the settlement was based on the representation that Dr. O’Shaughnessy’s report was reliable and the video surveillance of the appellant showed her level of functioning to have been misrepresented. The respondents claimed rescission of the settlement based on that misrepresentation. Counsel wanted to question Dr. O’Shaughnessy about the effect of the appellant’s activities recorded by the video on his opinion. The chambers judge summarized the position this way:

It is common ground that Dr. [O'] Shaughnesssy's report was key to the settlement. The case for rescission also depends on the report, its sources and assumptions, as well as a careful and informed comparison of those to the evidence from the videotapes. The defendants have to know how and to what extent, if any, Dr. O'Shaughnessy's opinions, diagnoses and prognoses may vary as a result of this videotaped evidence. They say that only Dr. O'Shaughnessy can reliably and fully comment upon the degree to which, if any, the plaintiff's presentation depicted in the videotapes is inconsistent with her presentation at Dr. O'Shaughnessy's examinations, and how those inconsistencies may affect his conclusions. They say that this information cannot be obtained reasonably by other means.

[7] After the chambers judge’s order, the appellant abandoned the application to enforce the settlement; the examination of Dr. O’Shaughnessy for that purpose is now moot. The disappearance of the settlement as an issue deprives his examination of much of the immediacy that concerned the chambers judge. This appeal is therefore on quite a different footing, and we are concerned only with the examination of Dr. O’Shaughnessy for purposes of trial.

[8] Rule 28 defines the authority to examine witnesses, including experts, before trial. It reads in material part:

Order for

(1) Where a person, not a party to an action, may have material evidence relating to a matter in question in the action, the court may order that the person be examined on oath on the matters in question in the action and may, either before or after the examination, order that the examining party pay reasonable solicitor's costs of the person relating to the application and the examination.

Expert

(2) An expert retained or specially employed by another party in anticipation of litigation or preparation for trial may not be examined under this rule unless the party seeking the examination is unable to obtain facts and opinions on the same subject by other means.

Affidavit in support of application

(3) An application for an order under subrule (1) shall be supported by affidavit setting out

(a) the matter in question in the action to which the applicant believes that the evidence of the proposed witness may be material,

(b) where the proposed witness is an expert retained or specially employed by another party in anticipation of litigation or preparation for trial, that the applicant is unable to obtain facts and opinions on the same subject by other means, and

(c) that the proposed witness has refused or neglected upon request by the applicant to give a responsive statement, either orally or in writing, relating to the witness' knowledge of the matters in question, or that the witness has given conflicting statements.

The respondents contend that the video surveillance shows the appellant engaged in activities inconsistent with her level of functioning as reported in Dr. O’Shaughnessy’s report. In that report, Dr. O’Shaughnessy records information as to the appellant’s level of functioning obtained in an interview with the appellant’s care aide, as well as notes from I.C.B.C. rehabilitation staff. It should be emphasized that Dr. O’Shaughnessy’s veracity is not questioned; rather the respondents’ position is that he was misled by the appellant and others as to her level of functioning.

[9] The appellant submits that in making the order the chambers judge erred:

1. in finding that the respondents had met the procedural requirements of Rule 28;

2. in making findings of fact not based on the evidence before him; and

3. in applying the wrong test for an examination of an expert retained by the other party in preparation of her case.

The appellant accepts that Dr. O’Shaughnessy is an expert retained by her to provide an expert opinion on matters in question and the evidence sought by the respondents is material.

[10] The respondents want to obtain Dr. O’Shaughnessy’s opinion based in part on facts which he may infer from evidence of video surveillance in the possession of the respondents and determine whether his opinion differs from that set out in his report on the basis of that evidence. The chambers judge summarized the details thus:

In his report, Dr. O'Shaughnessy recited details of his review and of his observations of the plaintiff under examination on April 22, 2003. They included:

(a) she rarely leaves home by herself;

(b) she has little, if any, social activities;

(d) she spends much of the day withdrawn and does not talk; and

(e) she fears crossing the street on her own.

With the possible exception of (c), it is apparent that none of these details could have resulted from personal observation of the appellant during his examination; obviously they record information received by Dr. O’Shaughnessy from the appellant, her caregiver and others. In the normal course, these facts would have to be proved independently at trial to provide a foundation for his opinion. The record of those facts in Dr. O’Shaughnessy’s report is merely hearsay; questioning Dr. O’Shaughnessy would add nothing to their admissibility. The respondents therefore do not seek additional facts from Dr. O’Shaughnessy; rather they wish to obtain a further opinion from him based on evidence in their possession. This is confirmed by counsel’s letter requesting the interview which states: “We would like to have the opportunity to meet with you to review the additional information and discuss what effects, if any, it has upon the opinion and conclusions expressed in your attached report.” Counsel says that he is “solely interested in ascertaining what effect the additional information may have on your opinion.”

[11] Rule 28(3)(b) requires that the respondents must satisfy the court that they are “unable to obtain facts and opinions on the same subject by other means.” The respondents wish to question Dr. O’Shaughnessy “with respect to the disclosed observations he made of the Appellant at his examination of her” and contend that he “is in possession of unique knowledge, namely, his observations of the nuances of the Plaintiff’s behaviour as they relate to the making of psychiatric diagnoses and prognoses.”. As noted, most of the details with respect to the appellant’s level of function referred to above, for example that she rarely leaves home and has little social activities, are not details within the personal knowledge of Dr. O’Shaughnessy. His impressions of the appellant’s demeanour during his examination are not unique in the sense that another psychiatrist would not be equally capable of assessing demeanour in an independent medical examination to which the respondents presumably would be entitled under the Rules. The respondents have not taken the opportunity to have the appellant independently examined by another psychiatrist.

[12] The respondents rely on Ochoa v. Canadian Mountain Holidays Inc., [1995] B.C.J. No. 563 (S.C.) (QL), as support for their position. In that case, the plaintiff’s husband was killed by an avalanche while heli-skiing out from the defendants’ lodge. The plaintiff applied to examine two heli-skiing guides engaged by the defendants who were on site immediately after the avalanche and observed the snow conditions. B.D. Macdonald J. accepted that the plaintiff could not obtain detailed information about the snow conditions at the time of the accident other than by questioning the defendants' experts. He said:

[18] … The only practical way in which the plaintiff can obtain a full and clear understanding of the conditions in the area immediately following the avalanche in question is to cross-examine Flavelle and Isrealson on their respective notes and observations.

However, he restricted the examination to “facts observed or disclosed by any tests conducted….” Here, the object of the respondents’ questions is not to elicit new facts from Dr. O’Shaughnessy, but simply to obtain a revised opinion based on the evidence of the video. The video represents facts in the possession of the respondents, and not uniquely within the knowledge of the appellant or Dr. O’Shaughnessy. Ochoa, by comparison, involved facts known to the defendants’ experts that were not available to the plaintiff applicant. They were not facts in the possession of the applicant to be put to the other side’s expert for a revised opinion. In my view, Ochoa does not assist the respondents.

[13] The other cases relied on by the respondents are similarly distinguishable. Sinclair v. March, 2002 BCCA 65, involved an order in a medical malpractice case to examine one Dr. Christensen, who had performed surgery on the plaintiff to repair the result of original surgery alleged to have been negligently carried out by the defendant. The defence conceded that Dr. Christensen could be compelled to answer questions as to what he saw and did, as well as his diagnosis and prognosis but objected to questions eliciting Dr. Christensen’s opinion as to the standard of care applicable to the original surgery and whether the defendant doctor had met that standard. Dr. Christensen had initially expressed an opinion to plaintiff’s counsel that the first surgery had been negligently performed but he later refused to be called as a witness. This Court upheld a Rule 28 order that extended Dr. Christensen’s examination to include his opinion. That opinion was formed in the course of Dr. Christensen’s treatment of the plaintiff; in that context, facts and opinion were uniquely connected. Here, Dr. O'Shaughnessy is not a treating physician and his ability to assess the appellant and provide an opinion for litigation purposes could be substantially duplicated by a psychiatrist retained by the respondents to do an independent medical examination.

[14] Kelly v. Calcutt, [1991] B.C.J. No. 3641 (S.C.) (QL), involved a Rule 28 order for the examination by the defendant of a physician who had treated the plaintiff for some time after a motor vehicle accident and indicated in clinical notes that the plaintiff was fit to return to work. The plaintiff did not intend to make the doctor’s evidence part of his case. The doctor’s evidence was relevant to the plaintiff’s past and future loss of income claim. Master Wilson (as he then was) concluded that a doctor conducting an independent medical examination of the plaintiff would not be in as good a position to assess his ability to return to work shortly after the accident as the doctor who treated him at that time. In making the order, the master relied on United Services Funds v. Richardson Greenshields of Canada Ltd. (1988), 24 B.C.L.R. (2d) 41 (S.C.). There, an order was made for the examination of a former Superintendent of Brokers who may have “unique information, facts and opinions in that he was Superintendent of Brokers during the material period who was directly involved in some of the activities which are the subject matter of this litigation.” In both of these cases the witnesses potentially had unique information not otherwise available. Here, it is the respondent applicants who wish to confront the appellant’s expert with new information in their possession.

[15] The appellant states: “The process of providing new information to a witness and obtaining his or her opinion is novel and contrary to the purpose of Rule 28 which is an investigatory tool to discover facts or opinions from an uncooperative witness.” I agree. Dr. O’Shaughnessy is a well‑known and respected psychiatrist, but I do not think that he is uniquely qualified to provide a psychiatric opinion in this case. His opinion is largely based on information supplied by others that will have to be proved independently to provide a necessary foundation for his opinion. Those facts are equally available for an independent expert opinion and the other facts on which they wish an expert to rely are in their possession. Rule 28 requires that the respondents demonstrate that they cannot get an expert psychiatric opinion by other means. In my view, they have failed to meet this test.

[16] I do not find it necessary to address the other grounds of appeal advanced by the appellant. I would allow the appeal and set aside the order of the chambers judge.

[17] ROWLES, J.A.: I agree.

[18] LEVINE, J.A.: I agree.

[19] ROWLES, J.A.: The appeal is allowed

(discussion with counsel)

[20] ROWLES, J.A.: Counsel, we are all of the view that the appellant is entitled to costs in this Court and that the parties should each bear their own costs in the court below.

“The Honourable Madam Justice Rowles”

“The Honourable Mr. Justice Mackenzie”

Citation:	*Li (Guardian ad litem of) v. Sandhu,*
	2006 BCCA 79