Before: Master B.M. Young

Reasons for Judgment

Appearing on her own behalf:	Z. Holland
Counsel for the Defendant:	No Appearance
Counsel for the Third Party:	J. Poon
Date and Place of Hearing:	October 9, 2008
	Penticton, B.C.

[1] On the list before me today were two applications filed by the third party. The first notice of motion dated September 23, 2008, filed September 30, 2008, was for an order that:

1. the plaintiff submit to a medical examination by Dr. Stephen Vallentyne (physiatrist) on October 28, 2008 at 11:00 a.m...; and

2. that the plaintiff pay the costs of this application in any event of the cause.

[2] The second notice of motion dated September 29, 2008, also filed September 30, 2008, was for an order that:

1. [t]he plaintiff submit to a continuation of her examination for discovery on a date agreeable between the parties;

2. [t]he plaintiff pay for the expense of the court reporter, discovery room rental and her own conduct/travel expenses...;

3. ...the plaintiff is to provide responsive answers to the questions which she refused to answer during her first discovery which occurred on July 22, 2008;

4. [t]he plaintiff pay to the Third Party special costs in the lump sum amount of $2,500 as a result of her unproven allegations against counsel for the Third Party...; and

5. [t]he costs of this application be paid by the plaintiff to the third party...

[3] A time estimate of 40 minutes was given for these two applications.

[4] Ms. Holland appeared in court and advised the court that she had three notices of motion that she expected to be heard at the same time as the third party’s two applications. Ms. Holland had filed three notices of motion; however, there were no notices of hearing on the file. She advised the court that she had mailed her notices of hearing to the trial coordinator in Kelowna, and that she lived far away and so the notices of hearing likely were still in the mail. Ms. Holland was advised that the court would hear the third party’s applications first as they were properly on the list; and, if time permitted, the court would also deal with as many of her applications as time allowed, but it was likely that some of those would have to be adjourned to another day.

[5] Ms. Holland’s notice of motion dated September 24, 2008, filed October 2, 2008, was for an order:

[1] That [the] Third Party...be directed to provide specific reasons why [the] Third Party...counsel refuses [the plaintiff’s] doctors as expert witnesses and why medical examinations done to date are not sufficient for these proceedings.

[2] That [the] Third Party...be compelled to pay costs for the IME consistent with costs of travel to and from Kelowna at the going rate for costs of fuel.

[3] That [the] Third Party’s...IME doctor be compelled to show at the examination he has been provided [with] and [has] examined the records of [the] Plaintiff’s doctors and the catscan done on [the] plaintiff.

[4] That [the] Third Party’s...IME doctor not be allowed to engage in any intrusive examination; and specifically [be] prohibited from touching, manipulating or palpitating the Plaintiff’s neck.

[5] That [the] Third Party’s...IME doctor be informed prior to the examination that the examination will be videotaped.

[6] Costs be awarded to [the] Plaintiff for this application.

Given that this application was a cross-application to the third party’s application to compel the IME examination, this application proceeded in court.

[6] After more than one hour, the third party’s two applications and Ms. Holland’s cross-application with respect to the IME still had not concluded. For this, and for reasons which will be described below, Ms. Holland’s two remaining applications were not spoken to.

[7] The first of the two applications filed by Ms. Holland that was not spoken to was a notice of motion dated September 4, 2008, filed September 12, 2008, for an order:

[1] That [the] Third Party...be directed to provide a bill of particulars to those portions of the statement of defence objected to [by the] Plaintiff, or in the alternative

[2] That [the] Third Party...be directed to provide a custodian of the record or other person for [the] Third Party to speak to those portions of the statement of defence objected to by [the] Plaintiff so that person might be examined, or in the alternative

[3] That [those portions of the] Third Party’s...statement of defence objected to by the Plaintiff [be struck].

[4] Costs be awarded to [the] Plaintiff.

[8] The second of those applications was a notice of motion dated September 8, 2008, also filed September 12, 2008, for an order:

[1] That [the] Third Party... be held accountable for harassment of [the] Plaintiff’s witness, G. Bryant; that [the] Third Party’s...Statement of Defence be [struck] as sanction for said conduct; or whatever other sanction the court deems appropriate; and

[2] Costs be awarded to [the] Plaintiff.

IME Motion

[9] The third party applied for its first IME and the plaintiff did not object to being examined, but she raised issues with respect to the terms of her consent. The parties were able to reach an agreement with respect to the third party paying costs of the IME. The plaintiff demanded $200 for a hotel and $115 for meals, plus mileage at 42¢ per kilometre. Mr. Poon consented to the $200 for the hotel and $115 for meals, but advised the court that the mileage rate for conduct money was usually set at 30¢ per kilometre by using Schedule 3 of the tariff of costs. Ms. Holland consented to that amount. The other issue that was consented to was with respect to paragraph 4 of Ms. Holland’s cross-motion. She was seeking an order that the IME doctor not be allowed to touch or manipulate or palpitate her neck. After some questioning, Ms. Holland agreed that gentle touching would be consented to, but anything beyond gentle touching would not be agreed to. Mr. Poon consented to giving these directions to the IME physician.

[10] The next objection was that Ms. Holland wished to, as a condition of attending the IME, demand that first ICBC advise her of the grounds on which they rejected her expert reports. This was opposed to by counsel for ICBC, who said that it should not be a condition of ICBC obtaining IME evidence. I agree that this should not be a condition; however, I am prepared to order that ICBC outline for Ms. Holland the grounds for ICBC’s objection to her expert reports. To do otherwise would be unfair. She needs to know how to prepare her case for trial, and if there is any objection it will be too late for her to find out the day of trial what the objection is. If she can rectify the deficiencies in her opinion evidence before trial, then she can still rely on that evidence. I will order that within 30 days ICBC will advise Ms. Holland of the grounds on which ICBC objects to her expert witness reports.

[11] The next request on Ms. Holland’s motion was that the third party IME doctor be compelled to show at the examination that he has been provided with all of Ms. Holland’s records in advance of the examination. Although I understand the rationale for wishing that the doctor was fully informed prior to her appointment, this is interfering with the third party’s instructions to their own witness and I am not prepared to do that. If ICBC chooses to have the witness examine Ms. Holland without any background information or previous medical report reviews, then that is their prerogative. If something is missed as a result of not knowing the full medical history then that gives Ms. Holland grounds to cross-examine this witness at trial. Accordingly, I have declined to make an order sought under paragraph 3 of Ms. Holland’s cross-motion with respect to the IME.

[12] The plaintiff’s final request is that the IME be videotaped, and that the IME physician be informed prior to the examination that that is the intention. The plaintiff has two concerns. Firstly, she wishes to limit the IME examination to the subject matter of the examination without extensive interrogation on matters which are not relevant; and, secondly, she believes that without recording the proceeding it is most likely that one or the other of the parties in the action will protest, and any objection could be alleviated by a neutral recording of the examination. By this I believe that she means that if she refuses to answer any question there will be a protest, and it would be better to have a recording of what occurs. A number of cases were presented; many of them were from outside of British Columbia. I will refer to Mercer v. Desmarais, 2005 BCSC 1660, a decision of Mr. Justice Grist. He says at paragraph 4:

... it is my view that this is not an order that should be given as a matter of course. In many, if not most cases, the course of the independent medical examination will be available through both the doctor's and the plaintiff's report of the event, made available if necessary by the report envisaged in Milburn v. Phillips. There may be cases where the exchange between the doctor and a plaintiff may suffer considerably through the intrusion of a recording device...Each case needs to be assessed on its individual circumstances...

[13] The case before Mr. Justice Grist involved a 14 year old with mental challenges indicative of ADHD or fetal alcohol effect. The examination in that case was by a psychiatrist. Accordingly, the words exchanged were likely of more significance than an examination by a physiatrist where the physical examination may be the most important aspect of the examination.

[14] I will also refer to the case of Heisler v. Leffer, 2004 BCSC 1556, a decision of Master Keighley. In that case the plaintiff requested an opportunity to audiotape her IME because she had a very poor memory and did not understand medical terms and concepts. There was no suggestion by her that she wanted to impugn the doctor’s character or qualifications with the audiotape. There was no suggestion that it would interfere with the defendants’ ability to obtain an effective medical evaluation. Master Keighley allowed the order.

[15] Mr. Poon referred me to the Court of Appeal decision in Wong v. Wong, 2006 BCCA 540. In that case the plaintiff was seeking an order to audiotape an examination by the psychiatrist Dr. Derryck Smith. The plaintiff was only 10 years old. The Court of Appeal found that Rule 30 gives a judge or master authority to permit or prohibit a person being examined from making an audiotape of the examination. At paragraph 32 the court sets out factors which should inform the exercise of discretion. They are as follows:

(a) the absence of evidence that an audio tape recording would inhibit or impair the examination;

(b) evidence that the plaintiff had a poor memory or was forgetful;

(d) evidence that the plaintiff had difficulty communicating and understanding, perhaps related to lack of fluency in English or the language of the examining doctor;

(e) the likelihood that a tape recording might lead to settlement short of trial; and

(f) the likelihood that an audio tape recording would contribute to the fairness of the trial.

[16] In Wong the court looked first to whether there was any objection to having the particular physician conduct the IME. The absence of such objection suggests that there was no concern about the integrity of the doctor or his ability to honestly and faithfully discharge his professional responsibilities. In Wong Dr. Smith provided sworn evidence that the use of an audio tape recorder will alter the nature of a psychiatric exam and may make the examinee reluctant to answer some questions. It was agreed that an audio tape recording would provide the best evidence at trial as to what was said at the examination, so there would be some advantage of having the audiotape. However, weighed against that benefit is the extent to which the audiotape would impede or impair a full and proper examination.

[17] At paragraph 48 the Honourable Chief Justice said:

While I am of the view that a master or judge has a discretion under Rule 30 to permit the use by a plaintiff of an audio tape recorder on an independent medical examination, it is in my opinion a discretion that should be exercised rarely and with restraint, and only in circumstances where there is cogent evidence that the use of an audio tape recording will advance the interests of justice.

[18] In the case before me, I do not believe there is a cogent reason for the audio tape recording. Ms. Holland did not audiotape her examinations and provide copies of a transcript of those audiotapes to the third party. Therefore, to enable her to do so now with the IME would place her on a better footing than the third party with respect to the medical evidence.

[19] There is no evidence either way as to whether the audio tape recording would inhibit or impair the examination, given that the IME physician has not given evidence in this application. There is no evidence that Ms. Holland has a poor memory or is forgetful. There is no evidence that Ms. Holland has any difficulty communicating, and in fact she is quite articulate.

[20] It was my opinion when this application was argued before me that there was little or no chance of settlement; however, as you will read, this opinion very abruptly changed in the afternoon.

[21] I am not certain whether the audio tape recording would contribute to the fairness of the trial or not. If the reason Ms. Holland wants the audiotape is in case she objects to certain intrusive questions (and then hearing the question actually asked is not of great significance), the doctor can record the questions Ms. Holland refuses to ask and then Ms. Holland can provide the court with her reason for the refusal if the issue goes to court. I will decline the application for taping the IME.

[22] That brings us to the third party’s second application which is to compel Ms. Holland’s attendance at a subsequent examination for discovery.

[23] Ms. Holland does not object to continuing the examination for discovery, but she certainly objects to having to pay the costs or any suggestion of wrongdoing on her part when she terminated the examination for discovery at 3:00 p.m. She had, she said, given adequate notice to Mr. Poon that she had to drive to Kelowna for a pre-trial conference the next day, and therefore had to leave in the early afternoon. She sought an adjournment of this application because she had not filed any material whatsoever in reply to this notice of motion, despite the fact that it had been delivered to her in ample time for her to prepare material. Some of the material she seeks is a full transcript of the examination for discovery.

[24] In addition, Ms. Holland also seeks an order that Mr. Poon be examined because of paragraph 4 of the third party’s notice of motion seeking costs because of Ms. Holland’s unproven allegations against him.

[25] By consent, I granted the third party’s application that Ms. Holland submit to a continuation of her examination for discovery. I agreed to adjourn the application with respect to who would ultimately bear the cost of the second examination for discovery. Ms. Holland needs to file affidavit material in response to this notice of motion, and should be given a short time frame to obtain that additional evidence. I recall when this matter came before me in July, Ms. Holland objected to having an examination for discovery the day before the pre‑trial conference in Kelowna because she had travel concerns. She has had time to respond to this material, but did not appear to be aware of how she would obtain a full transcript from the examination for discovery. I advised her in court that she could order a copy of the transcript directly from the court reporter, and that Mr. Poon could not provide her with a full photocopy because of copyright rules. I am prepared to give Ms. Holland the time to do obtain a transcript of the examination for discovery.

[26] I proceeded to hear the application to compel Ms. Holland to make responsive answers to questions which she refused to answer during the first discovery. Ms. Holland was most upset that I proceeded without having further evidence before me. The reason that I chose to proceed with the application is two fold. Firstly, there is no point in scheduling a continuation of an examination for discovery if I do not also deal with the application to compel her to answer certain questions. Secondly, further affidavit material would be of no assistance whatsoever to the court in making a determination as to whether questions were relevant or not. The decision of relevancy is a legal conclusion; it is not based on additional facts. Once I have the statement of claim and statement of defence and know what the case of the plaintiff and third party is, I do not need further affidavit material explaining why questions were not answered.

[27] I adjourned the application of the third party for special costs. Clearly, more affidavit evidence needs to be obtained. I am uncertain whether or not a transcript of a discovery of Mr. Poon would be required, but that is for a later day.

[28] This is my decision with respect to the questions that Ms. Holland refused to answer at the first examination for discovery.

[29] When faced with having to respond to the application, Ms. Holland refused to respond. She advised me that she was going to appeal my decision to proceed with this application, and had nothing further to say. I provided her with a further opportunity at 2:00 p.m. to respond to the application. Again she declined, and advised the court that she was accepting the third party’s offer to settle because the court had repeatedly denied her access to justice, and she saw no recourse but to accept the offer to settle.

[30] Acceptance of an offer to settle stays all proceedings, except with respect to costs. I have proceeded to prepare Reasons on this application, in the event that the acceptance of the offer to settle is overturned or attempts are made to retract it at a later date. There was no discussion before me as to whether the offer to settle included costs of the proceeding.

Unanswered Questions from Plaintiff’s July 22, 2008 Examination for Discovery

Line 18 - What is the population of Tatla Lake?

[31] The plaintiff refused to respond to this question on the ground that it was not relevant. The plaintiff has claimed a loss of past and future wages, and loss of earning capacity. The third party is entitled to ask questions regarding the plaintiff’s current employment situation, including whether there are employment opportunities where she resides and whether she is prepared to leave that community for the purpose of obtaining employment. The size of the community is relevant to her income earning capacity if she has no intention of moving for work. This information, however, is information that Mr. Poon could get from other sources. Ms. Holland is ordered to answer the question, if she has knowledge of the population of Tatla Lake.

Line 23 - Are there schools in Tatla Lake?

[32] I order that this question be answered by Ms. Holland, for the same reasons stated above.

Line 34 - How much were you paying in rent [in Penticton]?

[33] Ms. Holland was asked why she left Penticton and moved to Kleena Kleen. Her answer was that she could not afford the cost of living in Penticton and so had to move. This put the cost of living in Penticton in issue. Ms. Holland refused to answer the question “How much were you paying in rent [in Penticton]?” Ms. Holland is ordered to answer that question.

Line 46 - Do you currently live with anybody?

[34] Ms. Holland refused to answer this question on the ground that it is not relevant. The third party is allowed to ask questions to determine the names of potential witnesses, and Ms. Holland is ordered to answer that question.

Line 76 - What do you grow in the greenhouse?

[35] Ms. Holland refused to answer this question. Mr. Poon was asking her questions relating to the extent of her current physical activities. Although what plants she actually grows in the greenhouse may not be particularly relevant, Mr. Poon is entitled to ask questions of Ms. Holland that relate to what physical capacity she works at now. Mr. Poon advised me that he wanted to determine how much physical exertion Ms. Holland can tolerate with her work; for example, if she was growing watermelons, it would require a lot more physical exertion than if she was growing herbs. I will decline to order that Ms. Holland answer “What do you grow in the greenhouse?”, but I will order that she answer the question “How much lifting do you do, and what would be the maximum weight you would lift while tending to the greenhouse duties?”

Lines 125 and 126 - So did you complete [the Dental Assistant Program]...? Why not?

[36] Ms. Holland declined to answer on the ground that it was not relevant. I find that any questions regarding her educational background or training are relevant to her past and future wage loss claim, and I order her to answer this question.

Line 176 - What [are the] other reasons [you left Montessori School]?

[37] Again, Ms. Holland refused to answer this question. The reason for leaving her past employment is relevant to her past wage loss claim. The third party is entitled to know if she left her employment because of the injuries she sustained in this accident or for other reasons.

Lines 327 to 333 - Questions involving litigation against the Canadian Dental Association.

[38] Ms. Holland declined to answer the following question: “And what other symptoms do you say you experienced as a result of mercury poisoning?” By way of background, Ms. Holland claimed in the statement of claim against the Canadian Dental Association that as a result of mercury poisoning, she suffered from, among other things, sleep deprivation, hypoglycaemia and arrhythmia. Mr. Poon is entitled to ask any questions relating to pre‑existing conditions that immediately pre-date this motor vehicle accident. There is no indication that the alleged mercury poisoning occurred so far before the motor vehicle accident that its effects were no longer relevant. I will order that Ms. Holland answer that question.

Line 335 - Now did you draft this Statement of Claim [in the action against the Canadian Dental Association] as well?

[39] Ms. Holland has also sued the Cariboo Memorial Hospital. She was asked if she drafted the statement of claim in that action, and she refused to answer that question. Mr. Poon was attempting to determine whether Ms. Holland had made a prior statement with respect to her pre‑existing condition, that statement being the statement of claim in her action against the Cariboo Memorial Hospital. I order that Ms. Holland answer that question.

Line 403 - What [treatment are you doing for the chronic fatigue syndrome]?

[40] While Ms. Holland was in the hospital in July of 2005, she claims she was given medication that she had an adverse reaction to. Her claim is that she suffered from chronic fatigue syndrome as an adverse reaction to Morphine, Gravol and Toradol. She refuses to answer any questions regarding the treatment that she receives for chronic fatigue syndrome. Clearly, this is relevant. The third party is entitled to know what pre‑existing conditions she had, or conditions which have developed since the date of the accident, and whether she has taken reasonable steps to resolve these health problems. These health problems may impact her ability to earn income which is not causally linked to the motor vehicle accident. I order that Ms. Holland answer that question.

Costs

[41] If this action had not been settled before me on the afternoon of Thursday, October 9, then I would have ordered costs to the third party in this application in any event of the cause but not payable forthwith. Given that the offer to settle was accepted and all matters are now stayed except for the issue of costs, I will require further submissions on the issue of costs as it relates to the acceptance of the offer to settle. As I said earlier, I am not certain whether the offer to settle included costs or not.

_______________________
Master B.M. Young

Citation:	*Holland v. ICBC,*
	2008 BCSC 1582