IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150914

Docket: M48610

Registry:
Kamloops

Between:

Kelly
Nieman

Plaintiff

And

Amber
Ann Joyal

Defendant

Before:
Master McDiarmid
in Chambers

Oral Reasons for Judgment
re Application for Independent Medical Examination

[1]           
THE COURT: This is an application by the defendant to compel the
plaintiff to attend an independent medical examination at the offices of an
occupational therapist.

[2]           
The background to the litigation is set out in the affidavit of Tracey
Mason, a legal assistant employed by counsel for the plaintiff. I am directing
that a transcript of these reasons be ordered. Paragraphs 2 through 6 are as
follows:

2.         This matter arises out
of a motor vehicle accident which occurred on March 23, 2012 in Kamloops,
British Columbia.

3.         A Notice of Civil Claim,
filed on April 3, 2013, alleges that the plaintiff sustained injuries,
including:

a.         Compound fracture of left
ankle;

b.         Injury to ribs;

c.         Injury to neck;

d.         Injury to back;

e.         Bruising and contusions.

4.         The trial of this matter
is scheduled to commence on March 7, 2016 to last for 14 days.

5.         The defendant conducted
an examination for discovery of the plaintiff on April 9, 2014.

6.         Based on my review of
correspondence and documents received from Ms. Harris, counsel for the
defendant, I verily believe that the plaintiff has attended at the following
independent medical examinations to date:

a.         Dr. Latimer, psychiatrist, on
May 27, 2015;

b.         Samantha Gallagher, vocational
assessment, on July 3, 2015; and

c.         Dr. Wing, orthopaedic surgeon,
on July 15, 2015

 at
the defendant’s request.

[3]           
The plaintiff resides in Kamloops. Prior to the plaintiff attending an
appointment with Dr. Latimer, plaintiff’s counsel, by letter dated May 14,
2015, requested conduct money as follows: mileage, 420 kilometres at 35 cents a
kilometre; parking, $5; meals, $25; total, $177. Counsel for the defendant sent
a letter back enclosing a cheque payable to the plaintiff in that amount.

[4]           
Prior to the plaintiff attending a vocational assessment and the Dr.
Wing appointment, plaintiff’s counsel, by letter dated June 25, 2015, requested
conduct money as follows for Samantha Gallagher, the vocational assessment
person: 730 kilometres mileage at 35 cents a kilometre; $175 accommodations;
$10 parking; $80 meals; total, $520.50; and Dr. Kevin Wing: mileage, same 730
kilometres at 35 cents a kilometre; parking $10; meals $60; total $325.

[5]           
Defendant’s counsel sent over two cheques, one for the vocational
assessment attendance expenses and one for the Dr. Wing appointment attendance
expenses in a letter dated June 30, 2015. It references the June 25 letter,
encloses two cheques, and then says:

Please note the following adjustments have been made:

Samantha Gallagher Mileage (730km
@ ($0.30)                                             $219 . . . Meals    $60

[6]           
The other two, accommodation and parking, stayed the same. The total is
$464, and:

Dr. Kevin Wing Mileage (730km
@ ($0.30)     $219 [Parking stays the same] Meals         $50 [Total]
$279

[7]           
The letter, which is appended to the Mason affidavit as Exhibit D, is
noted as being received on July 8, 2015. The vocational assessment appointment
date was July 3, 2015. The Mason affidavit confirms that, in paragraph 8(d),
the funds were not received until July 8, after the date scheduled for the
Gallagher appointment. That is set out in the response at paragraph 10.

[8]           
This next independent medical examination has been scheduled for
September 21 at 8:30 a.m. with Gary Worthington‑White. The plaintiff
consents to attending an independent medical examination with Gary Worthington‑White,
an occupational therapist. There are some medical issues which have recently
arisen, unrelated to the litigation, that may cause some problems with him
attending on the date presently scheduled, but in submissions his counsel has
confirmed that, assuming the plaintiff’s gallstone attacks resolve and he is medically
fit to attend, he will attend. Failing that, there has been discussion between
counsel so that they have agreed that if he cannot attend, my order should just
not set the date, but confirm that he will attend on a date to be agreed by the
parties.

[9]           
The plaintiff, as noted, does not object to attending, but sets out two
conditions: firstly, that reasonable expense money be received in advance; and
secondly, that notes recording any history or observations and data, including
test results from the Gallagher and Wing appointments, are provided prior to
attendance.

[10]       
That latter point was not addressed during argument; however, the issue
of reasonable expense money was.

[11]       
The defendant’s position is the conduct money is payable in accordance
with Schedule 3, namely 30 cents a kilometre for mileage.

[12]       
Schedule 3 sets out:

Travel

2  (1) For any witness, if the examination, hearing or trial
is held at a place

(a) within 200 km by road (including any ferry route . . . )
of where the witness resides, 30¢ per km each way by road . . . but no travel
allowance will be made if the distance . . . is less than 8 km., or

(b) more than 200 km from where the witness resides, the
minimum return air fare by scheduled airline plus 30¢ per km each way from his
or her residence to the departure airport and from the arrival airport to the
place of examination, hearing or trial.

[13]       
Schedule 3(3) sets out:

For any witness, a reasonable
allowance for meal expenses made necessary by the witness’ attendance, and if
the witness resides elsewhere than the place of examination, hearing or trial
and is required to remain overnight, a reasonable allowance for overnight
accommodation.

[14]       
The defendant submits that "examination" in Schedule 3
includes an order that the plaintiff submit to, and I am quoting from Rule 7‑6,
"examination by . . . other qualified person" as set out in Rule 7‑6.

[15]       
The plaintiff submits that Rule 7‑6(a) permits the court to order
reasonable expenses connected with the examination. The plaintiff also submits
the specific reference to Schedule 3 in Rules 7‑2 and 13‑4 and its
absence in Rule 7‑6 means that I should not read into Rule 7‑6 that
Schedule 3 applies.

[16]       
As authority for that proposition, plaintiff’s counsel refers to a
decision of Madam Justice Kirkpatrick in chambers in our Court of Appeal where,
in Vandokkumberg v. H. Meyer Construction Ltd., 2006 BCCA 423, at para.
12, she cites with approval the leading text on Construction of Statutes,
Driedger, and she quotes from that text:

. . . "[i]n reading a
statute words should not be added or deleted and the reader should not try to
fill in any gaps he thinks he sees". At 104, he [referring to Driedger]
cautions against "amend[ing] a statute to make it say something it does
not say, or to make it say what is conjectured the legislature could have said
or would have said if a particular situation had been before it". . . .

[17]       
Rules 7-2(13) and 13-4(10) specifically refer to “witness fees in the
amount required under Schedule 3 of Appendix C”. Those words are absent in Rule
7-6, although “witness fees referred to in Subrule (13)” are inferentially
referenced in subrule 7-6(6), which deals with out-of-province residents.

[18]       
The appointment is more than 200 kilometres from where the plaintiff
resides. I routinely review airfare disbursements for Kamloops to Vancouver
return flights when I conduct costs assessments. Airfare generally exceeds what
the plaintiff seeks as mileage.

[19]       
I was referred to several authorities. The first is a decision of mine, Dakin
v. Roth, 2013 BCSC 1018, where I refer to conduct money to attend an independent
medical examination. This in the context of an appointment to assess the plaintiff’s
bills of costs. The issue that is now before me was not argued in that case.

[20]       
The second case referred to by the plaintiff is a 2007 decision of Madam
Justice Arnold‑Bailey, Hamilton v. Vance, 2007 BCSC 1001, where
she allows mileage to attend various accident‑related medical
appointments at 31 cents a kilometre. I infer that she did not consider herself
bound to order the amounts that are set out in Schedule 3.

[21]       
In Holland v. ICBC, 2008 BCSC 1582, Master Young, as she then was,
dealt with conduct money. In that case, it is apparent from reading para. 9
that the parties consented to 30 cents a kilometre using the Schedule 3 tariff.

[22]       
The plaintiff relies on a number of cases. In Kahl v. Jakobsson, 2006
BCSC 1163, Madam Justice Loo comments at para. 135 that the fees payable to
witnesses has not been amended since 1991.

[23]       
Counsel then refers me to the Schedule 2, fees payable to sheriff, which
sets mileage at the rate of 50 cents for each kilometre travelled. I do not
consider that to be particularly relevant, given the different considerations,
such as security, that are involved in Schedule 2, and I have not taken that
into account.

[24]       
In Schwarz & Co. Law Corp. v. Funaro, 2006 BCSC 122, District
Registrar Sainty, at para. 46, on a Legal Profession Act review of a
lawyer’s account allowed mileage as claimed by the lawyer in 2006 at 44 cents a
kilometre.

[25]       
In Gewal-Cheema v. Tassone, 2010 BCSC 1182, at para. 60, Mr.
Justice Stewart allowed mileage at 50 cents a kilometre.

[26]       
That decision has been followed by Mr. Justice Schultes in Liu v.
Thaker, 2012 BCSC 612, at para. 72, and again by Mr. Justice Schultes in Fadai
v. Cully, 2014 BCSC 290. All those cases allowed mileage at 50 cents a
kilometre.

[27]       
Evidence was also presented as attachments to the affidavit of Tracey
Mason as follows:

·      
Thompson Rivers University reimburses mileage at 50 cents per
kilometre;

·      
The Legal Services Society of British Columbia has a “meterage”
allowance per kilometre of 52 cents per kilometre as of April 2015;

·      
The Canadian Employee Relocation Council Survey of Corporate
Reimbursement Rates for Personal Vehicles when used for Business Travel
summarizes a survey of 44 participating organizations setting out that the
lowest rate of reimbursement is between 31 and 33 cents per kilometre. The
highest rate of reimbursement is between 55 and 57 cents per kilometre and the
average rate of reimbursement is 49 cents per kilometre based on an online
survey conducted from December 5, 2012 to January 2, 2013;

·      
The Government of Canada automobile allowance rates for 2015 are
55 cents per kilometre for the first 5,000 kilometres driven and 49 cents per
kilometre driven after that. Slightly lower rates are shown for 2010 to 2014;

·      
Lastly, extracts from Canadian Automobile Association show total
annual driving costs based on 20,000 kilometres driven annually for a mid-sized
vehicle are 52 cents per kilometre; for a cross-over vehicle are also 52 cents
per kilometre; for a minivan are 57 cents per kilometre; for a full-size
vehicle are 62 cents per kilometre; for an SUV are 63 cents per kilometre; and
for pick-up trucks are 67 cents per kilometre.

[28]       
A careful reading of Rule 7‑6 reveals that it refers to an order
that the person submit to examination by a medical practitioner, and then the
court is permitted to make an order respecting any expenses connected with the
examination. No specific reference is made to the Schedule 3.

[29]       
It seems to me that there is no difference in principle between the
reasonable expenses of a plaintiff attending his own doctor, such as was
awarded at 50 cents a kilometre in several of the cases, including the ones of
Justice Stewart and Justice Schultes, and a plaintiff attending an independent
medical examination, especially where the plaintiff agrees to attend an independent
medical examination located in a different city.

[30]       
Accordingly, I order the following:

1)    the plaintiff is
to attend to be examined by Gary Worthington‑White, an occupational
therapist, on a date to be agreed upon by the parties, with liberty to apply if
there are difficulties;

2)    the defendant
must provide conduct money as follows: firstly, mileage for 730 kilometres at
50 cents a kilometre, which is $365; secondly, overnight accommodation for one
night at $175; and third, meals in the amount of $75. I apprehend that there will
be at least four;

I know that it is approximately
three and a half hours’ driving time from Burnaby to Kamloops, and it seems to
me that what is reasonable here is that if the appointment ends before 4:30
p.m., it is reasonable for the plaintiff to drive home. So this is the next
part of the order:  If the appointment ends after 4:30 p.m. on the date it
commences, the defendant must promptly reimburse the plaintiff for one
additional night’s accommodation and $12 additional meal allowance;

3)    if there are
parking expenses not included in the hotel accommodation, those are to be
promptly reimbursed upon being provided with the invoicing;

4)    the plaintiff
can submit actual meal expenses, including alcohol, less whatever he has
received in his allowance, as costs and the registrar can determine the
reasonableness on assessment; and

5)    any notes recording
any history or observations and data, including test results, are to be
provided by October 31, 2015, or at such other date as may be agreed upon by
counsel, if the presently‑scheduled examination does not go ahead.

[31]       
It does seem to me that the plaintiff has been largely successful here,
and so the costs of this application are to the plaintiff in any event of the cause.

“Master R.W.
McDiarmid”

MASTER McDIARMID