IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20111012

Docket: M103487

Registry:
Vancouver

Between:

Musa
Kalaora

Plaintiff

And

Harley
Gordon

Defendant

Before:
The Honourable Madam Justice Hyslop

Reasons for Judgment

[1]            
The plaintiff alleges that he suffered injuries that occurred on
December 6, 2008, in a motor vehicle accident for which he seeks damages.

[2]            
Through counsel, the defendant requested the plaintiff submit to an
independent medical examination with Dr. Smith, a psychiatrist, scheduled for
December 15, 2010 at 9 a.m. The plaintiff consented, however, plaintiff’s
counsel, in a letter dated August 31, 2010, wrote:

Dear Mr. James:

Re:      Kalaora v. Gordon
MVA December 6, 2008
Your File No. 6884

We confirm that our client will attend the medical
examination you have arranged with Dr. Smith on Wednesday, December 15, 2010 at
9:00 am.

Mr. Kalaora will not sign any documents (including an
authorization) at the appointment. We refer you to Kobzos v. Dupuis,
2006 BCSC 2047.

Mr. Kalaora will not be responsible for any cancellation fees
should he be unable to attend the appointment with Dr. Smith.

Yours truly,

[3]            
Mr. Kalaora attended Dr. Smith’s office and refused to sign the consent
or give a verbal consent. Dr. Smith did not proceed with the medical
examination. Dr. Smith, in a letter dated December 15, 2010, wrote to defence
counsel:

It is my standard practice for doing either defense or
plaintiff Independent Medical examinations to have the examinee sign a Consent
Form which allows me to proceed with the examination being requested.

…

In about 98% of the interviews which I conduct the individual
simply signs the Consent Form and we proceed with the interview. In a very
small number of cases, on instruction from legal counsel, individuals will not
sign this Consent Form, but in the past I have always received verbal consent
after they have read this form.

With Mr. Kalaora it is clear that he did read and understand
the form. He was instructed by his legal counsel not to sign it however. I
asked him if he would agree to consent verbally to proceed with the interview.
He again talked to his legal counsel and was instructed not to agree to the
examination verbally.

… however as a medical doctor I
must obey the policies of the College of Physicians and Surgeons of British
Columbia. I attach for your interest a copy of the Resource Manual and in
particular reference point number 5. “For your own medical record, obtain
signed and witnessed patient consent prior to proceeding with the independent medical
examination.”

[4]            
During the hearing of this application, there was no argument raised as
to the suitability of the authorization.

[5]            
The medical examination was intended to be beneficial to both the
plaintiff and the defendant. The plaintiff was seeking to enter an occupational
rehabilitation program paid for by Part 7 benefits of the Insurance
(Vehicle) Act, R.S.B.C. 1996, c. 231. Its authorization was dependent upon
Dr. Smith’s opinion as a result of the medical examination.

[6]            
The defendant is seeking an order that the plaintiff submit to an medical
examination by Dr. Smith, and that I order the plaintiff sign Dr. Smith’s
authorization or provide verbal consent, and lastly, the plaintiff pay the
defendant’s cost of $3,300.00 which he is required to pay Dr. Smith as a result
of the medical examination not proceeding.

[7]            
This is opposed by the plaintiff.

ISSUE

[8]            
The issues before me are whether I can order the plaintiff to sign Dr.
Smith’s consent and authorization permitting Dr. Smith to proceed with the
medical examination and whether the plaintiff should pay the cost of the missed
appointment.

POSITIONS

The Plaintiff

[9]            
The plaintiff argued that he was forced to attend the medical
examination; his consent should not be forced.

[10]        
The plaintiff, in support of his position, says that a court cannot
order a person to sign an authorization and relies on Rafferty v. Power, [1993]
B.C.J. No. 173, and Kobzos v. Dupuis, 2006 BCSC 2047, and
the cases that base their decision on Rafferty and Kobzos; Mund
v. Braun, [2010] B.C.J. No. 2420 and Stead v. Brown, [2010] B.C.J.
No. 432.

[11]        
The plaintiff argued that the defendant should find a medical examiner
who will provide a medical examination without consent. In his submissions, the
plaintiff stated that there are 760 psychiatrists in British Columbia, and
perhaps some of them would conduct a medical examination without a consent or
authorization. The plaintiff argued there is no evidence that the limitations
expressed by Dr. Smith are a “hard and fast rule”.

[12]        
The plaintiff’s position as to the payment of Dr. Smith’s fees for the
missed appointment is that the defendant knew well over three months before the
plaintiff’s appointment with Dr. Smith that the plaintiff would not sign a
consent, nor pay any cancellation fee arising from the cancelled appointment.

The Defendant

[13]        
The defendant argues that the Court does have jurisdiction to order the
plaintiff to sign a consent. The defendant argues that the caselaw in British
Columbia supports his position and that the law in British Columbia is settled.
The defendant argues that Kobzos and the cases upon which the plaintiff
relies did not have the benefit of all the caselaw on this issue in British
Columbia.

[14]        
The defendant relies on a series of cases which he alleges support his
position: Lane v. Ung, [1983] B.C.J. No. 1416; Hydro Fuels Inc. v.
Wilder, [1990] B.C.J. No. 2187; MacKay v. Cook (24 January 1992),
Vancouver Registry, B904009 (BCSC); Distinctive Photowork Co. v. Prudential
Assurance Co. of England Property and Casualty (Canada), (1994) 98 B.C.L.R.
(2d) 316; and Kestell v. Mahdi (18 July 1996), Vancouver Registry,
B942432 (BCSC). These cases, he argues, settled the law in British Columbia.
These cases, the defendant argued, effectively overruled Rafferty and Nikolic
v. Olson, 2011 BCSC 125, confirmed it.

[15]        
The defendant argued that the requirement of consent by Dr. Smith, or
any other physician, is that without consent the doctor may be exposed to a
legal action for trespass and for battery.

ANALYSIS

[16]        
In these reasons, I use the words consent and authorization interchangeably.

[17]        
During argument, counsel, raised a distinction between oral consent and
written consent. There is no difference – it is consent. Written consent is as
it states in writing, barring forgery or other defences relating to capacity
and interpretation. Oral consent may have to be proved based on evidence, such
as what was said by whom, when, the actions of the consenting parties and the
party to whom the consent was given. It too may be subject to some of the defences
as in written consent.

[18]        
The written consent that the plaintiff was asked to sign by Dr. Smith
was not before me.

[19]        
The plaintiff argued that the attendance by the plaintiff to submit to a
medical examination by Dr. Smith is not a consensual act, but rather mandatory
under the Supreme Court Civil Rules, Rule 7-6, formerly Rule 30. Rule
7-6 is not mandatory. It is only mandatory when a court exercises its
discretion and makes such an order pursuant to Rule 7-6. For whatever reason,
through counsel, the plaintiff consented to be examined by Dr. Smith at the
request of the defendant.

[20]        
Lane is a decision in which the underlying action was for damages
as a result of a motor vehicle accident. The defendant demanded documents from
two federal government departments, one of which was the Unemployment Insurance
Commission. The plaintiff had no objection as to their production. In Lane,
both the plaintiff, the defendant and the Unemployment Insurance Commission
were represented by counsel. The court ordered at para. 6:

… that the Plaintiff cause
documents in the possession of the Commission created since the date of the
accident on August 28, 1980 be produced. [Emphasis added]

[21]        
In Lane, the court was aware they could not order the documents
produced directly from the Minister. The only person who could obtain the
documents was the plaintiff.

[22]        
In Hydro Fuels, the legislation was similar to that in Lane
which did not permit the court to order the Minister of National Revenue to release
private information or documents which were held by the Minister in a previous
tax investigation. In Hydro Fuels, Mr. Justice Leggatt recognized that
issue when he stated:

The only route available to the
plaintiffs to discover documents out of the defendants possession and in the
possession of the Department of National Revenue is either through a consent
form or by a court ordered authorization.

[23]        
Mr. Justice Leggatt ordered the defendants to execute an authorization
(which he prepared) within one week of the order.

[24]        
MacKay is a Master’s decision. Master Doolan followed Lane.
The documents that were sought were the unemployment records which the Master
concluded were relevant, and ordered their production in similar terms as Lane.

[25]        
Rafferty was decided by a Master. As in Lane and MacKay,
the defendant applied for the records in the possession of the Unemployment
Insurance Commission. The Master concluded that the documents were not
compellable, and that the documents could only be produced with the consent of
the plaintiff. As a result of the Privacy Act, Master Brandreth-Gibbs
concluded that the court could not compel the plaintiff to consent. The Master concluded:

This court does not have the power to order the plaintiff to
experience a voluntary change of will. No authority was cited to me for the
proposition that it does.

As the court does not have the
power to order consent, the condition precedent to the Minister’s release of
the records cannot be met.

[26]        
In considering MacKay in Rafferty, the Master stated that
the Privacy Act had not been brought to the attention of the Master and
that the Minister did not appear before the court and argue its position. The
Master in MacKay was aware that the Minister was not compellable and
knew that the documents could be produced only through the plaintiff.

[27]        
In Rafferty, Master Brandreth-Gibbs stated that all that Lane
decided was whether the documents were relative because the plaintiff had no
objection to their production.

[28]        
Although the court in Lane did decide the documents were
relevant, the court then ordered that the plaintiff “cause” the production of
the documents by the plaintiff sought by the defendant.

[29]        
Distinctive Photowork is an appeal from a Master’s decision. The
defendant alleged that the plaintiff committed arson by burning their house
down. Madam Justice Boyd concluded that the financial difficulties of the
defendant corporation and the principals of that corporation were related. She
ordered that the personal defendants produce their tax returns.

[30]        
Madam Justice Boyd concluded that the court could order the plaintiffs
to sign an authorization to obtain their income tax returns. Madam Justice Boyd
relied on Hydro Fuels and stated at para. 7:

In my view that issue has been
determined in the defence’s favour in the reasons for judgment of Mr. Justice
Leggatt in Hydro Fuels v Wilder.

[31]        
Kestell was an appeal from a decision of a Master. The Master
felt bound by Rafferty. The documents that were sought to be produced
were the records of the Unemployment Insurance Commission. The underlying
action was a claim for damages by the plaintiff as a result of two motor
vehicle accidents. Mr. Justice Wilkinson concluded that the Unemployment
Insurance Commission was not compellable to produce documents.

[32]        
In Kestell, Wilkinson J. addressed the cases to date in British
Columbia in which the issue was whether the court could or could not order a
litigant to consent by signing an authorization.

[33]        
Mr. Justice Wilkinson reviewed Lane and Hydro Fuels,
stating that Hydro Fuels was not cited to the Master in Rafferty.
He concludes that Rafferty “was made by the learned chambers judge with
the relevant law in mind.”

[34]        
In reviewing Distinctive Photowork, a decision subsequent to Rafferty,
he found that Rafferty was not cited to Boyd J. and that Hydro Fuels was.
Mr. Justice Wilkinson stated at para. 7:

One must, with extreme care,
conclude that the law was not fully considered by judges.

[35]        
He further states at para. 8:

The basis of my decision is that
there are, to cite the language of Hansard Spruce Mills, grounds
under both the first and second tests — that is a subsequent decision Distinctive
Photowork and earlier decisions not considered, namely Hydro
Fuels. I decline to follow the distinction sought to be drawn with
reference to those cases and do not prefer the decision of the Master over them
and I follow those cases and find that it is entirely proper that the plaintiff
be ordered to execute the requisite consents.

[36]        
The decision in Kestell appears at that time to settle the law in
British Columbia which is that the court can order a litigant to sign a consent
or authorization. It would appear the basis of these decisions of Lane, MacKay,
Hydro Fuels, Distinctive Photowork and Kestell were the then Rules
of Court.

[37]        
In 2006, Kobzos was decided. An application was brought by the
defendant that the plaintiff, Kobzos, attend a medical examination pursuant to
the then Rule 30 of the Rules of Court. The applicant defendant also
sought that the plaintiff execute a patient declaration provided by the
physician, and that if the plaintiff did not attend the medical examination,
the plaintiff was to pay all fees of the doctor as a result of the plaintiff’s non-attendance.

[38]        
In Kobzos, the particular authorization that the plaintiff was asked
to sign was broad in scope, such that the doctor could make independent
inquires and obtain, outside information, and permission to interview named collateral
sources for information. If Kobzos did not agree to the terms of this
authorization then the medical assessment was cancelled.

[39]        
Mr. Justice Lander found that the plaintiff was compellable, she did not
object to the examination, but rather her objection was the scope of the authorization
that she was to sign. Mr. Justice Lander found that plaintiff’s counsel agreed
to portions of the authorization, but not all.

[40]        
The only cases cited to Lander J. were Rafferty and Peel.

[41]        
In Kobzos, Lander J. relied on Rafferty:

[12] I was referred to Master Brandreth-Gibb’s
decision in Rafferty v. Power, 15 C.P.C. (3d) 48. She stated at
page 55:

Consent is a voluntary act of will. Consent cannot be
forced. Forced to consent is a non sequitur. A court order cannot make an
involuntary act a voluntary one.

At page 62:

As the court does not have the power to order consent, the
condition precedent to the Minister’s release of the records cannot be met.

Therefore, in that instance, the Minister was not required to
produce documents that were relevant to an action, nothing to do with a motor
vehicle accident.

[13] However, in Peel Financial v. Western Delta
Lands, 2003 BCCA 180, Chief Justice Finch of the court refers to Rafferty
at page 4, paragraph 15:

The second ground of appeal is that the judge had no power
to order a party to consent to an order. A consent given pursuant to an order
to do so would be no consent at all.

He cites Rafferty v. Power. And then at 17:

The Supreme Court judge cited no authority for his power to
compel a party to consent, and no authority for such a power was provided to
us. As I have said, a consent given pursuant to an order is a contradiction in
terms.

[42]        
Mr. Justice Lander did not order that the plaintiff, Ms. Kobzos, sign
the doctor’s authorization. He speculated that:

16        The only way that I can see the defendant entering
onto a level playing field during the course of this imminent trial is to
obtain the services of a physician who does not demand the authorization and
consent such as Dr. Baker.

…

19        In the result, I am not able to compel Ms. Kobzos
to sign the authorization and consent as sought by Dr. Baker, and I make no
such order.

[Emphasis added.]

[43]        
There were two matters at play in Kobzos. Firstly, the nature and
extent of the doctor’s authorization and secondly, whether the court could
order the signing of the authorization. They ought not to be confused. Mr.
Justice Lander did not decide that the court could not order a litigant to sign
an authorization. Rather, he ruled that the consent and authorization that was
before him, he would not order the plaintiff to sign.

[44]        
In Nikolic, Mr. Justice Williams interpreted Kobzos
similarly.

[45]        
Peel, a decision of the Court of Appeal, does not relate to the
signing of an authorization or consent, or anything related to pre-trial
disclosure. In Peel, the Supreme Court of British Columbia ordered that the
defendant sign a consent containing certain terms. The terms required the
Registrar of the Court of Appeal to draw down on a line of credit. This line of
credit was lodged as a result of an order by a judge of the Court of Appeal.
The order required the Registrar of the Court of Appeal to pay out over $9
million to the credit of the Supreme Court action, then the parties were to be
at liberty to apply for an order disposing of the funds that would then be held
by the Registrar of the Supreme Court.

[46]        
In Peel, Chief Justice Finch commented:

[3] The Supreme Court order is therefore an order
compelling parties to endorse their consent to an order in Court of Appeal
proceedings, and is, effectively, an order of the Court of Appeal.

[4] The grounds of the appeal are: that a Supreme
Court judge has no power to compel consent to be given; that a Supreme Court
judge has no jurisdiction to make orders with respect to matters that are the
subject of proceedings in the Court of Appeal; and that in any event the requirements
of Supreme Court Rule 46 concerning "Preservation of Property" were
not satisfied.

…

[15] The second ground of appeal is that the judge had
no power to order a party to consent to an order. A consent given pursuant to
an order to do so would be no consent at all: see Rafferty v. Power (1993) 15
C.P.C. (3d) 48 (B.C.S.C.).

…

[17] The Supreme Court
judge cited no authority for his power to compel a party to consent, and no
authority for such a power was provided to us. As I have said, a consent given
pursuant to an order is a contradiction in terms.

[47]        
The matter of consent in Peel relates to whether the British
Columbia Supreme Court can direct the British Columbia Court of Appeal to do
something with the consent or without the consent of the litigants.

[48]        
The issue of consent in Peel is not the consent and authorization
as in Lane, Hydro Fuels, Distinctive Photowork, Kestell, nor the
application before me.

[49]        
Mr. Justice Williams revisited this matter in Nikolic in which
the plaintiff was seeking damages as a result of a motor vehicle accident. In Nikolic,
the defendants sought an authorization signed by the plaintiff so as to obtain
specified records from a third party outside of British Columbia. The documents
were compellable.

[50]        
Mr. Justice Williams raises the issue that is before me:

[11] There are conflicting
judicial authorities respecting the issue raised in this application. The line
of jurisprudence which holds that the court cannot make an order requiring a
litigant to authorize third party production is, in my view, troubling. For the
reasons that follow, I conclude that this Court can make an order requiring a
litigant to authorize a third party, whether within or outside this province,
to produce records relating to him or her to another litigant. The jurisdiction
to do so is based on the Rules of Court.

[51]        
He refers to the fundamental principles in civil litigation:

[18] Discovery (a term
encompassing document production, interrogatories, examinations for discovery
and medical examinations) encompasses the entire legal process through
which each litigant to the action or proceeding is able to learn about the
opposing case (claim or defence). The objectives are to promote settlement and,
where settlement cannot be reached, to narrow the issues in dispute before
trial. In short, this process gives the parties an opportunity to ascertain the
facts. That opportunity is only meaningful where the litigants disclose
evidence which they each will rely upon or which may assist opposing parties at
trial, in the manner and to the extent required by law. [My emphasis]

[52]        
Mr. Justice Williams referred to the rules as it relates to document
disclosure and the object of the new rules, which is to secure a just, speedy,
inexpensive determination on the merits proportionate to the amount involved
and the importance of the issues in dispute and the complexities of the
proceedings. He does a detailed analysis of the law under the old rules of
document discovery comparing the changes to the new rules.

[53]        
In Nikolic, he analyzes Peel:

[70] With respect to the first ground, the Chief
Justice cited at para. 15 Rafferty v. Power, [1993] B.C.J. No. 173, 1993
CarswellBC 640 (S.C. Chambers) [Rafferty cited to CarswellBC], for the
principle that "a consent given pursuant to an order to do so would be no
consent at all", or, as he alternatively put it at para. 17, "a
consent given pursuant to an order is a contradiction in terms". He
further held at para. 16 that a litigant could not be compelled to provide
consent merely because consent was necessary, and that a court does not have
the power to make such an order.

[71] In my view, what has been taken away from Peel
is the proposition that a Supreme Court judge has no power to compel a litigant
to give consent. In my view, that proposition requires qualification. It seems
that a somewhat over-broad conclusion has been taken.

[72] I emphasize three important distinctions between Peel
and the case at bar. First, Peel is contextually very different: Peel
had to do with a consent order, which sought to require the Registrar of the
Court of Appeal to draw down a letter of credit and pay out more than $9.6
million to the Registrar of the Supreme Court. Certainly, the issue of consent
did not arise in circumstances similar to those at bar. Second, Peel
involved a jurisdictional issue between two levels of court. The second
successful ground of appeal was that a Supreme Court judge has no jurisdiction
to make orders affecting proceedings in the Court of Appeal. Third, the Chief
Justice found, at para. 16, that means other than a consent order may have been
available that would allow for a drawing down of the letter of credit. In
short, the facts upon which his decision was made are unlike those at bar.

[73] Notwithstanding what
I see as the limited applicability of Peel to the present case for the
above enumerated distinctions, I accept as a general proposition that consent
cannot be forced: it defies the very definition of a ‘consent order’ to require
a litigant to endorse something he or she does not wish to agree to. Where
there is a right of choice, such an order will not result in the voluntary
giving of true consent. However, the Rules of Court pertaining to
discovery leave little, if any, room for considerations of consent. It is a
foundational principle that the litigating parties are lawfully obligated to
effect full and complete disclosure and the court has the discretion to make
orders directing a substantive process to occur.

[54]        
The plaintiff relies on the words of Williams J. in para. 73 without
referring to the limitations of Peel in his reasons at paras. 71 – 72
referred to above.

[55]        
Mr. Justice Williams analyzed the facts and the decision in Rafferty.
He distinguishes Rafferty, by stating:

[81] Rafferty is distinguishable from the case
before me. Here, there is no competing statute at odds with the Rules of
Court and thus I am not obliged to weigh the requirement and need for full
and complete disclosure against any privacy or other interests created by the
legislature and/or Parliament. Indeed, the relevant statute, the Rules of
Court, generally mandates the obligation of a litigant to disclose.

[82] Master
Brandreth-Gibbs also distinguished between the meanings of consent on one hand
and authorize or authorization on the other. She defined the latter at para. 9
as "to delegate a power or responsibility" and concluded that
"One can be forced to delegate"; whereas "Consent cannot be
forced". At the risk of falling into the trap of semantics, I use consent and
authorize interchangeably because I am of the view that authorize, assuming it
means delegate, involves an element of consent. I do not share the master’s
conclusion as to the difference between the two terms. To delegate, a person
must permit another to engage in some action by giving some sort of approval,
agreement or acquiescence.

Mr. Justice Williams did not have cited to him Lane, Hydro
Fuels, Distinctive Photowork and Kestell, which all dealt
with either the Unemployment Insurance Commission or the Revenue Agency of the
federal government. The documents in Rafferty were held by the
Unemployment Insurance Commission.

[56]        
As I stated earlier, the plaintiff relies on Peel, Kobzos, Stead
and Mund. Mund and Stead follow Kobzos. Stead
followed Peel.

[57]        
Stead was decided on February 24, 2010 and Mund was
decided December 2, 2010. Stead was an action for damages as a result of
a motor vehicle accident in which the plaintiff is alleged to have suffered
personal injuries.

[58]        
In Stead, the defendant brought an application requiring that the
plaintiff execute consent forms for the production of records of medical
doctors, hospitals, physiotherapist, Work Safe B.C., Ministry of Housing,
Service Canada, and records pertaining to the plaintiff’s employment. Parts of
this application were adjourned. Others resolved or partially resolved.

[59]        
 Mr. Justice Hinkson, as he then was, concluded that the issue he had to
resolve was whether he could order that the plaintiff execute consent for the
production of records from the hospital and the doctors. The defendant sought
an order in the form of a Halliday order.

[60]        
Mr. Justice Hinkson concluded that he could not order the plaintiff to
sign authorizations. His reasons were:

[21] In Peel Financial Holdings Ltd. v. Western
Delta Lands, 2003 BCCA 180, the British Columbia Court of Appeal reviewed
an order of this court requiring a party to endorse a consent order. Chief
Justice Finch for a unanimous court wrote at paragraph 15:

The second ground of appeal is that the judge had no power
to order a party to consent to an order. A consent given pursuant to an order
to do so would be no consent at all: see Rafferty v. Power (1993), 15
C.P.C. (3d) 48 (B.C.S.C.).

[22] And at paragraph 17:

The Supreme Court judge cited no authority for his power to
compel a party to consent, and no authority for such a power was provided to
us. As I have said, a consent given pursuant to an order is a contradiction in
terms.

[61]        
In his reasons, Hinkson J. refers to Lewis v. Frye, 2007 BCSC 89.
Lewis is an appeal of a master’s decision in which Mr. Justice Hood
upheld the master’s decision. The issues on appeal were firstly, whether the
master had jurisdiction to hear the application as opposed to a judge.
Secondly, whether the court could order the plaintiff to sign an authorization
for the production of medical records. The master ordered that the plaintiff
execute authorizations for the production of medical records held by physicians
and the Medical Services Plan. Mr Justice Hinkson stated that he could not
follow Lewis for the following reasons:

[23] In Lewis v. Frye, 2007 BCSC 89, Hood J.
wrote an extensive and considered decision with respect to whether or not a
party could be compelled to sign authorizations for the release of third party
records and concluded that a party could be so ordered.

[24] Under the authority of Spruce Hansard Mills
Ltd., [1954] 4 D.L.R. 590, I am bound to defer to his decision unless:

a) subsequent decisions have affected the validity of the
impugned judgment;

b) it is demonstrated that some binding authority in case
law or some relevant statute was not considered; or

c) the judgment was unconsidered nisi prius judgment
given in circumstances familiar to all trial judges where the exigencies of the
trial require an immediate decision without the opportunity to fully consult
authority.

[25] Regrettably the
decision of the Court of Appeal in Peel Financial Holdings Ltd. was not
considered which Hood J. and I am persuaded that the binding nature of that
authority if considered would have altered the conclusion reached by him had
the authority been brought to his attention.

[62]        
Mr. Justice Hood, in coming to this conclusion, referred to a number of
cases which included Hydro Fuels and Distinctive Photowork which
he approved and followed.

[63]        
In Nikolic, at para. 84, Williams J. chose not to apply the
reasoning in Stead.

[64]        
In Mund, the defendants sought, amongst other orders, an order that
the plaintiff:

4.         execute
a copy of Dr. Makin’s Governing Law and Jurisdiction Agreement prior to his
attendance at the subject medical examination (copy attached as Annexure
"A")

6.         pay
cancellation fees and other costs thrown away relating to his non-attendance at
the medical examination originally scheduled for September 3, 2010.

7.         pay the costs of this
application to the Defendants in any event of the cause.

[65]        
In Mund, the authorization was an agreement which required that
if the plaintiff intended on suing the doctor, any action must be brought
within British Columbia. Mr. Justice Brown concluded:

[37] I had insufficient
evidence before me to conclude whether Dr. Makin required the plaintiff’s
signature because it has now become a standard requirement of the physician’s
insurer or because of concerns arising from the insurer’s experience with the
plaintiff and Dr. Sovio.

[66]        
The plaintiff, Mund, attended the date set for the medical examination
by the doctor, but refused to sign the agreement. The defendant was assessed
cancellation fees.

[67]        
Mr. Justice Brown stated that he was bound by the Desjardins
(Litigation guardian of) v. Huser, 2010 BCSC 977; Kobzos, Stead, Peel,
Rafferty and Allan-Trensholme v. Simmie, [2006] B.C.J. No. 720
(B.C.C.A.):

I do
not have jurisdiction to order the plaintiff to sign the Jurisdiction Agreement.
…For now, the general question appears settled; and as for the facts at bar,
in my view, the consent in this case falls squarely within the ambit of the
authorities cited.

[68]        
Mr. Justice Brown did not have referred to him Lane, Kestell,
Hydro Fuels, or Distinctive Photowork before him, or for that
matter, Lewis.

[69]        
The consent that Mr. Mund was requested to sign was beyond the focus of
a medical examination, similar to that of Kobzos, which is not the
argument before me.

[70]        
In orders sought for medical examinations, the court routinely orders that
the plaintiff answers all relevant questions concerning his medical condition
and history. In Mund, the plaintiff, in advance of the decision,
consented to that as a term of the order.

[71]        
The plaintiff argued that Nikolic can be distinguished as the
issue before the court was the production of documents, held by third parties out
of the jurisdiction. There is no distinction. A litigant may seek a medical
examination of another litigant under certain circumstances under the Supreme
Court Rules. A medical examination of the plaintiff is a form of
disclosure. The plaintiff is likely to present himself or herself for a medical
examination, answer questions, be examined and provide a medical history.
Clinical records are likely to be provided. The doctor may, as a result of the
examination, come to some findings of fact and form an opinion.

[72]        
Similarly, in document production, the documents may contain information
which causes the litigants to conduct its case in a certain manner, pursue
further evidence and seek further disclosure by pre-trial applications.

[73]        
At an examination for discovery, the plaintiff is obliged to answer
questions put to him or her by the opposing party as it relates to the
proceedings. In the event that the litigant refuses, the court may order that
the litigant answer. This is not unlike ordering a litigant to sign an
authorization, so long as the authorization is appropriate.

[74]        
Much of civil litigation is based on the principle that the parties be
on an equal footing or, as often expressed, a “level playing field.” This
principle is often expressed in adjudicating pre-trial applications which
litigants wish to take. At the same time, the basis of any order is relevance,
when a question to be answered at an examination for discovery, an order for a medical
examination, or a document to be produced.

[75]        
The medical examination by Dr. Smith will not take place unless the plaintiff
signs the consent. That is not to say it is the doctor who sets the terms of
the consent. So long as the consent is reasonable and not a consent as sought in
Kobzos and Mund, the court should order that it be signed.

[76]        
When litigants participate in court proceedings they must abide by the
rules of court. This is expressed in MacKay:

It seems to me that when the
plaintiff looks to the Courts to adjudicate upon his claim of wage loss then he
cannot expect it to do so blindfolded and attempt to frustrate the other side,
or the Court from having all evidence available. … It seems, however, that a
party should not ask a Court to adjudicate on an issue and yet be supported on
a position that certain documents or records, that while not in the possession
of the party are readily available that party, should not be produced.
Something is amiss if the plaintiff is entitled to put his hands in his pockets
and say I won’t produce document even after the Court has found them to be
relevant merely because they are in the possession of an agency which operates
under legislation which precludes direct delivery of such documents to a third
party.

[77]        
In Kestell, at para. 8, Wilkinson J. uttered a similar view:

… the trend towards openness
and fair play in litigation is an overridingly important principle and ought to
be interfered with only where absolutely necessary. Those who come before the
court presumably are prepared to conduct their affairs in accordance with the
usual rules of the court.

[78]        
Mr. Justice Williams states in Nikolic that the expectation is,
that where documents are in the hands of third parties, the litigants should
voluntarily agree to provide a document authorizing the record holder to
release the material and then goes on to state at para. 99:

However, in other cases, where
consent is refused, litigants are entitled to seek relief and the court has
jurisdiction to enforce the disclosure obligation, specifically by making an
order whereby the party whose records are being sought will “consent” to their
release. While the wording is unfortunate and has engendered a regrettable
state of controversy, the underlying concept is, in my view, straightforward.

[79]        
Rule 13-1(19) of the Supreme Court Civil Rules provides
assistance in this matter:

Orders on terms and conditions

(19) When making an order under these Supreme Court Civil
Rules, the court may impose terms and conditions and give directions it
considers will further the object of these Supreme Court Civil Rules.

[80]        
In Nikolic, Mr. Justice Williams stated that Rule 1(12) (the
former Rule)

grants the court wide
discretionary powers, in the making of orders, to impose terms and conditions
and give directions as its thinks just. Read collectively [he is referring to
the then document rules], a master or judge of this Court has the jurisdiction
to create the mechanisms by which relevant non-privileged documents in a litigant’s
"power" will be produced, including the jurisdiction to order him or
her to execute the necessary documentation allowing a record-holder, whether
residing in or outside British Columbia, to effect the release of those
documents.

Rule 13-1(19) together with Rule 7-6(1), (the medical
examination rule) read together, permit the court to order that the plaintiff to
sign an authorization.

[81]        
By refusing to sign a consent or give a verbal agreement, Dr. Smith is open
to charges of assault and battery. To insist that the defendant find another
psychiatrist to pursue the medical examination without the consent of the
plaintiff is unlikely.

[82]        
When plaintiff’s counsel consented to the medical examination of Mr.
Kalaora by Dr. Smith, and Mr. Kalaora appeared at Dr. Smith’s office as
scheduled, it certainly could be inferred that Mr. Kalaora agreed to the medical
examination. However, when he refused to sign the consent or consent verbally,
he withdrew that consent.

[83]        
Based on the case law, the Supreme Court Civil Rules and their
purpose, the underlying need for full disclosure, the court can order a
litigant to sign a consent or authorization.

[84]        
The plaintiff made it clear that they are agreeable to attending a medical
examination with Dr. Smith. I order that the plaintiff attend a medical
examination with Dr. Smith at a time and place as agreed. I order that the
plaintiff sign an authorization or consent in the exact terms as sought by Dr.
Smith for the original medical examination which did not proceed.

Cancellation
Fees

[85]        
I am not prepared to order that the plaintiff pay the cancellation fees.
The defendant had clear warning that the plaintiff would not sign a written
authorization or consent. The defendant could conclude that Mr. Kalaora would
not consent verbally.

COSTS

[86]        
The focus of this application was the signing of the authorization and
whether the Court could make such an order. I have made such an order. The
defendant was not successful for the payment of the cancellation fees. As a
result, I order that the plaintiff pay three-quarters of the defendant’s costs,
party and party, Scale B and all disbursements of this application.

“H.C. Hyslop J.”

HYSLOP J.