Baxter v. Shelton

June 23, 2017


2017, BCSC 953

In a ruling released March 27, 2017, the Defendant’s application to have the Plaintiff attend a vocational rehabilitation consultant was dismissed.  The Plaintiff had admitted on Examination for Discovery that she had not applied for work since either of her accidents.  She also admitted that she did not know what she was capable of doing or what her limitations were surrounding work.

In discussing the Defendant’s application the Master noted that the Defendant had sent the Plaintiff to a psychiatrist and had not yet commissioned a report.

[9]     The application is brought pursuant to Rule 7-6 of the Rules of Court. The purpose of an examination under that rule is to put the parties on an equal footing with respect to medical evidence where the physical or mental condition of a person is in issue in a proceeding. In determining whether an order under Rule 7-6 is appropriate, the court exercises its discretion. The legal principles upon which that discretion is to be exercised were set out in detail and evocatively by Mr. Justice Bracken in the case of Hamilton v. Pavlova, 2010 BCSC 493. I will not recite the principles, which are well known to the court and to counsel, but I may make reference to them in my following remarks.

[10]   During the course of submissions I raised with Mr. Gill, counsel for the defence, my primary concern, which was essentially that here the plaintiff has been examined by a defence psychiatrist from whom a report has not yet been requested. I was concerned that there may be some significant overlap between not only the expertise of the expert for whom the most recent assessment is sought and the psychiatrist, but also that the areas covered by the referral and the examination might not also be the same or similar.

[11]   Rule 7-6, in my words, not the words of Justice Bracken, is not meant to be applied to darn every hole in the diagnostic sock so to speak. Justice Bracken expresses that principle a little more eloquently when he says:

Reasonable equality does not mean that the defendant should be able to match expert for expert or report for report.

[15]   Justice Bracken went on to say in Hamilton v. Pavlova at paragraph 13:

A second exam will not be allowed for the purpose of attempting to bolster an earlier opinion of another expert. That is, there must be some question or matter that could not have been dealt with at the earlier examination.

[16]   Now, here we do not know specifically what issues Dr. Axler dealt with during the examination. We know what he was asked to do. We do not have a report. There is nothing in the material to suggest to me that there is some issue which has arisen since the time that referral was made which could not have been dealt with at the time of that examination.

[17]   It is difficult in circumstances where a report of an expert with an overlapping expertise has not been produced to make a determination as to whether that subsequent examination is required for the purpose of levelling the playing field or addressing some issue which could not have been raised at the time of the original examination. The onus is on the defendant to establish those issues. I am not satisfied on this application that the defendant has done so.