IN THE SUPREME COURT OF BRITISH COLUMBIA
Labrecque v. Tyler,
2011 BCSC 429
Andrew Peter Tyler
Before: Master Bouck
Reasons for Judgment
Counsel for the Defendant / Applicant
G. L. Shumka
Counsel for the Plaintiff:
D. C. McKay
Place and Date of Hearing:
March 28, 2011
Place and Date of Judgment:
April 7, 2011
 In a notice of application filed March 16, 2011, the defendant seeks the following orders:
1. That the Plaintiff attend and submit to an independent medical examination by Dr. Michael Stafford Piper, an orthopaedic surgeon. The examination is to take place at 1:30 p.m. on Tuesday, March 29, 2011, at 120 ‑ 65 Richmond Street, New Westminster, British Columbia.
2. That the Defendant pay the costs associated with the Plaintiff’s attendance at the independent medical examination.
3. That the Plaintiff pay the costs associated with the missed appointment that was scheduled to take place on March 1, 2011.
4. That the time limit for serving a medical-legal report of Dr. Michael Stafford Piper be extended to Monday, April 11, 2011.
5. That the costs of this application be awarded to the Defendant in any event of the cause.
 The defendant relies on Rules 1-3(1), 7-6, 11-6(4), 11-7(6), 22-7(2) and 14-1 of the Supreme Court Civil Rules (“SCCR”) as support for the orders sought.
 The application came before me on March 28, or one day before the scheduled examination. The application was dismissed in its entirety with costs awarded to the plaintiff in any event of the cause. These reasons provide the basis for making that order.
 This personal injury action is scheduled to proceed to trial on April 26, 2011.
 The trial will address the plaintiff’s claim for damages arising from injuries allegedly suffered in three motor vehicle accidents. The accidents occurred on September 17 and October 3, 2007 and October 9, 2008.
 The plaintiff has commenced three separate actions. All three actions are subject to Rule 15-1of the SCCR, also known as Fast Track Litigation. The October 9, 2008 accident is the subject matter of this particular action. It is alleged that the October 2008 accident aggravated injuries suffered by the plaintiff in the first and second accidents.
 On February 25, 2010, the plaintiff served the defendant with the report of Dr. H. Russell Grimwood, general practitioner, dated February 20, 2010.
 On October 27, 2010, the plaintiff served on the defendant the report of Dr. Lynne MacKean, a physical medicine and rehabilitation specialist, dated August 24, 2010.
 The plaintiff will rely only on the report of Dr. MacKean at trial while the defendant intends to rely on Dr. Grimwood’s report.
 The plaintiff has not undergone any independent medical examinations.
 In accordance with Rule 11-6(3), the parties were obliged to serve any expert evidence by February 1, 2011, or 84 days before trial.
 On February 22, 2011, defence counsel advised plaintiff’s counsel via email that an independent medical examination with Dr. Piper had been scheduled for March 1, 2011. Plaintiff’s counsel was unable to respond to this email until February 28, 2011. On that day, defence counsel was told that Mr. Labrecque would not attend the appointment as the time for service of any opinion evidence had passed. The defendant was invited to retain Dr. Piper for the purposes of providing a responsive report to the opinion of Dr. MacKean.
 On March 8, 2011, defence counsel again requested that the plaintiff attend for an examination by Dr. Piper, this time on March 29, 2011. Again, the plaintiff refused to submit to the examination, resulting in this application.
 Dr. Piper deposes in an affidavit sworn March 15, 2011 that:
3. I understand that trial is scheduled for April 26, 2011. As such, I intend to prepare my report in accordance with the rules as I understand them and restrict my opinion to matters addressed in the expert reports of Dr. Grimwood and Dr. MacKean.
4. I do, however, need to physically examine the plaintiff and ask him the questions a doctor would ask in order to elicit information upon which to ground my opinions.
5. Relying on the information given by the Plaintiff and their physical examinations of him, both Dr. Grimwood and Dr. MacKean expressed opinions on the nature and severity of the Plaintiff's injuries, their impact on his current and future activities and the likelihood and likely extent of the Plaintiff's recovery. They also provided recommendations for the Plaintiff to assist his recovery.
6. In my view, in order to properly review the reports of Dr. Grimwood and Dr. MacKean, I would need to conduct a physical assessment of the Plaintiff.
7. I was originally meant to examine the Plaintiff on March 1, 2011 at 2:30 pm at my offices in New Westminster. My expert report was due on or before March 13, 2011.
8. I will be able to provide a report to Alexander Holburn Beaudin & Lang LLP within 13 days of my examination of the Plaintiff.
 The affidavit is sworn March 15, 2011, thus after the defendant had already given notice that he would be relying on Dr. Grimwood’s report at trial.
 Whether or not an examination was ordered, Rule 11-6(4) required the defendant to serve Dr. Piper’s responsive report by March 15, 2011.
 The defendant submits that an examination of the plaintiff by Dr. Piper is necessary to do justice between the parties. Such an examination can be ordered as part of a response to the plaintiff’s opinion evidence. The defendant acknowledges, however, that any report forthcoming from Dr. Piper would be restricted to “truly responsive rebuttal evidence.”
 In addition, the defendant submits that the plaintiff is not prejudiced by the lateness of this application. Dr. Piper’s report could be served at least 14 days before trial thus allowing the plaintiff an opportunity to consider the contents of the report in advance of trial.
 Besides, the plaintiff is at fault for the lateness of the report. The report could have been ready by March 15th had Mr. Labrecque agreed to attend the examination on March 1, 2011.
 The plaintiff submits that the defendant is merely attempting to obtain fresh evidence under the masquerade of a responsive report. Furthermore, the request for such an examination comes too late and interferes with the plaintiff’s ability to prepare for trial. In any event, the defence has not met the evidentiary threshold which might persuade the court of the necessity for such an examination.
 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.
 I concluded on March 28th that such attendance was neither required nor justified on the evidence presented.
 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.
 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.
 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.).
 Wright v. Bauer is the first reported decision which addresses the purpose of new Rule 11‑6 (4).
 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.
 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.
 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.
 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.
 The same result is found in Boudreau v. Logan and Crane v. Lee, supra.
 In contrast, the court in Luedecke v. Hillman was satisfied that an order should go requiring the plaintiff’s attendance at an examination.
 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:
 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.
 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).
 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.
 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.
 The court upheld the Master’s order finding that:
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 An additional consideration for the court on this application is the matter of proportionality. Particularly in a Fast Track action, the court should be cautious about ordering “greater...access to IMEs”: Boudreau v. Logan at paras. 13 and 14.
 In any event, as the plaintiff points out, the so-called playing field is level between the parties as each relies on one expert.
 Having found that a physical examination by Dr. Piper is not necessary, the plaintiff should not be liable for any charges relating to the March 1, 2011 cancelled appointment. Moreover, there is no evidence of the efforts made by Dr. Piper to fill that cancelled slot. Such evidence is required before the court will consider ordering plaintiff to pay the cancellation fees: Minhas v. Virk, 2011 BCSC 19 at para. 15.
 One final point should be made with respect to this application. In addition to the notice of application, defence counsel provided the court with a separate outline of argument. No objection was to taken to the court receiving this written argument. For the following reasons, I did not consider the content of the written argument in my deliberations.
 Prior to July 1, 2010, provision of a written argument was recognized as good practice and often encouraged by the court -- even for applications consuming less than 2 hours.
 Since July 1, 2010 and pursuant to Rule 8-1(16), a written argument may only be presented to the court if the application consumes more than two hours. There is no discretion under the Rule to receive written argument in other circumstances. This application was estimated to be heard in 35 minutes but took one hour.
 Thus, no written argument can or should have been considered by the court.
 These observations should not be seen as a criticism of defence counsel whose efforts were no doubt intended to assist the court. However, it seems worthwhile to remind litigants of the provisions of Rule 8-1(16) so that in future, the time and expense of preparing a separate written argument is avoided.
“C. P. Bouck”
Master C. P. Bouck