IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140206

Docket: 11-0244

Registry:
Victoria

Between:

Rose White

Plaintiff

And:

Gary Lorne Morency

Defendant

Before:
Master Bouck

Reasons for Judgment

Introduction

[1]            
This is a personal injury action.

[2]            
In her notice of application filed January 17, 2014, the plaintiff
seeks the following relief:

1.  An Order that the trial of this matter and of White v.
Parsons and Ferenczi, Supreme Court of British Columbia Action 13 3708,
Victoria Registry, set to commence on March 10, 2014, be adjourned sine die.

2.  An Order to amend the Notice of Civil Claim in this
action, to add further particulars of injuries: concussion and brain injury.

3.  An Order to permit Dr. Michael Krieger to give his
evidence at trial by way of video conference.

4.  The Plaintiff seeks costs of
this application.

[3]            
Following submissions, I granted the relief sought in paragraphs 2 and 3
of the notice of application and provided brief oral reasons for doing so. I
was satisfied that the plaintiff had met the relatively low threshold to allow
the proposed amendments to the pleading and that the defendant was not
prejudiced by these amendments. As well, I found that the defence had not met
the reverse onus test found in s. 73 (2) of the Evidence Act, R.S.B.C.
1996, c. 124, with respect to the delivery of Dr. Krieger’s evidence at
trial: see Nybo v. Kralj, 2010 BCSC 674; Slaughter v. Sluys,
2010 BCSC 1576.

[4]            
These reasons address both the plaintiff’s application for the
adjournment of the trials as well as costs for having to bring the application.

[5]            
The plaintiff asks that the trial in each action be adjourned generally
to allow the plaintiff to complete medical investigations and treatment. The
defendant opposes the adjournment suggesting that there is nothing new in terms
of treatment and investigations that warrant a delay in the adjudication of the
plaintiff’s claims. The defence does not identify any specific prejudice should
the trials be adjourned.

[6]            
The decision on the trial adjournment was reserved to allow for a more
detailed review of the medical and other evidence presented in the application.

The Facts

[7]            
The plaintiff is 60 years old and employed part-time in a local grocery
store’s bakery.

[8]            
Ms. White has been involved in two motor vehicle accidents which are the
subject of the two actions. The first accident occurred on April 1, 2009;
the second accident occurred on December 18, 2012.

[9]            
At the time of the second accident, a trial in this action had already
been set to be heard on April 8, 2013. After being retained with respect to the
second accident, plaintiff’s counsel requested an adjournment of the April 2013
trial. The defence initially opposed the adjournment but subsequently withdrew
that opposition when the plaintiff agreed to terms. Those terms included that: the
plaintiff forthwith files a notice of civil claim with respect to the second
accident; the two actions be tried together; a new trial date be secured forthwith;
and these steps be taken before the April 2013 trial was adjourned. The
parties re-set both trials for March 2014.

[10]        
The plaintiff’s injuries as initially pled in this action include
indicia of a possible mild traumatic brain injury. The plaintiff deposes to
suffering from various physical and cognitive symptoms resulting from the first
accident. It is alleged that the second accident aggravated some or all of
these symptoms but also caused new symptoms and injuries. The cognitive
symptoms complained of by the plaintiff include poor concentration and
word-finding, mood swings, irritability, impatience, anxiety and disturbed
sleep. The second accident led to blurred vision, trouble with noise and memory,
and severe twitching around the plaintiff’s left eye and left side of her face.

[11]        
Ms. White has undergone a number of medical investigations with respect
to these complaints including by a neuropsychologist, endocrinologist and otolaryngologist
and neurologist (Dr. Krieger). Some of the investigations were initiated
through the MSP referral system; others were arranged for medical-legal
purposes.

[12]        
In support of the adjournment, the plaintiff relies on the most recent
reports of Drs. A. LeBlanc (sports medicine specialist) and
Fraser Noel (ENT specialist).

[13]        
Dr. LeBlanc assessed the plaintiff following each of the two motor
vehicle accidents. The plaintiff was examined by Dr. LeBlanc following the
second accident on April 8, 2013. Dr. LeBlanc noted that the plaintiff was
recovering from bowel surgery at that time and a further assessment would await
that recovery.

[14]        
Dr. LeBlanc’s latest report is dated December 9, 2013, but this must be
in error as the report states that the plaintiff was seen four days later
(December 13^th). The purpose of this assessment was to “allow for a
more thorough physical examination relating to [the plaintiff’s] Motor Vehicle
Accident symptoms.” The follow‑up appointment resulted from a request by
plaintiff’s counsel for an addendum to Dr. LeBlanc’s initial medical-legal
report dated December 27, 2012.

[15]        
Dr. LeBlanc’s addendum report details the results of the physical
examination of the plaintiff. He concludes his report as follows:

At this point, she has other
significant special medical testing and consultation that is pending. It is
impossible for me to give any different, accurate diagnosis at this point with
respect to her injuries given the lack of feedback on those consultations.
However, from my point of view, I would like to do some nerve conduction and
EMG studies of the left upper extremity, and perhaps do some shoulder imaging,
which I have initiated.

[16]        
Ms. White was first seen by Dr. Noel after the first accident, but prior
to the second accident. The appointment with Dr. Noel was made by the family
doctor on an MSP referral basis. Following the second accident, Ms. White’s
family doctor requested that the plaintiff see Dr. Noel for a follow-up
assessment. That assessment did not occur until December 3, 2013.

[17]        
In his report of December 13, 2013, Dr. Noel states:

Since the second accident she has
developed intermittent spasm around the left side of the face. She also has
left temple ache, which is exacerbated by neck movement. She may well have
sustained a myofascial injury to the neck, which is resulting in this muscle
spasm. To investigate this further I have requested an MRI both of her head and
neck. I have also asked Dr. P. Pathak to review the patient with
regards to these new issues.

[18]        
The MRI is scheduled to take place on March 30, 2014, thus after trial.

[19]        
The referral appointment with Dr. Pathak (a neurologist) is now
scheduled for September 2014. Dr. Pathak’s assessment will address, among
other things, the plaintiff’s complaint of facial twitching.

[20]        
Dr. Krieger, the neurologist seen by the plaintiff for medical legal
purposes, now resides in Costa Rica.

[21]        
In addition, on a referral from her family doctor, the plaintiff will be
assessed by the Victoria General Hospital Neurological Outpatient Program on
January 21, 2014. The assessment is with respect to memory and speech
problems and for therapy recommendations.

[22]        
The plaintiff deposes that she is “really worried about the case going
ahead to trial before my doctors have properly assessed and treated me.”

DISCUSSION

[23]        
The defence submits that the grounds for seeking the adjournment are
weak. The plaintiff’s medical condition, including the complaints leading to
these further investigations, was known when the March 2014 trial dates were
set. It is submitted that the recent reports of Drs. Noel and LeBlanc disclose
nothing new, but rather point to a pattern of “multi-doctoring” and
investigations that may never end. Meanwhile, the claims ought to be
adjudicated based on the medical evidence provided.

[24]        
In terms of the adjournment grounds advanced by the plaintiff, I would
distinguish between those grounds based on future treatment and those based on
future medical investigations. An adjournment of the trial would not be ordered
simply to allow the plaintiff to attend at or complete the VGH outpatient
program: see Massey v. Tomich, 2013 BCSC 458.

[25]        
I find that the recent opinions of both Drs. LeBlanc and Noel are
grounds on which the court can consider the balancing of the parties’ interests
on this application: Sidoroff v. Joe, 1992 CanLII 1815 (B.C.C.A.).The
recommended investigations are new and directly impact at least one expert’s
ability to opine on diagnosis and prognosis. In the ideal world, the
investigations would have been completed before the March trial, but any blame
for the circumstance rests on the medical referral system, not the plaintiff
herself.

[26]        
In balancing the parties’ interests, I find that the plaintiff will
suffer the greater prejudice if the trial is not adjourned. Specifically, I
find that that pursuit of the MRI, EMG and assessment by Dr. Pathak are necessary
to ensure that the plaintiff’s experts have the opportunity to provide a
diagnosis and prognosis on the plaintiff’s complaints. Again, the defence does
not identify any specific prejudice by the adjournment of the trials. Both
defendants can still argue at trial that these investigations are unrelated to
any injury suffered by the plaintiff in the accidents.

[27]        
The defence did not ask that any terms or conditions be imposed if the
adjournment is granted. Accordingly, the relief sought in para. 1 under
Part 1 of the plaintiff’s notice of application is granted.

[28]        
Further, I direct the registry to place a copy of this order in the
related action (13-3078).

[29]        
The costs of this application will be to the plaintiff in the cause.

                   “C.
P. Bouck”                

Master
C. P. Bouck