April 19, 2017

Appeal Win Protects Experts and Defendants Alike

Michael Wilhelmson

On January 27, 2017, Mr. Justice Funt of the Supreme Court of British Columbia overturned a master’s decision, which had incorrectly held that the court has no power to order a Plaintiff to sign a reasonable consent to treatment form. I acted as counsel representing the Defendants. His Lordship ruled that the courts of British Columbia most certainly CAN make such an order to give effect to the Supreme Court Civil Rules, including the right of a Defendant in a personal injury action to compel the Plaintiff to attend a medical assessment with the expert of his or her choice (see Gill v. Wal-Mart Corporation, 2017 BCSC 135).

If the Plaintiff were free to refuse to sign an expert “consent” form, the assessment may never happen, completely undermining the purpose of the Rules (see Rule 7-6). The College of Physicians and Surgeons of British Columbia requires all medical doctors to obtain consent from a patient before an examination. This is to protect the physician from possible claims of trespass and battery. The position of the Plaintiff’s counsel below was that the solution was simple: the Defendant would just have to get a different doctor, one prepared to provide a form acceptable to the Plaintiff. This notion spun the Rules on their head and would have in effect allowed the Plaintiff to have a say in the Defendant’s choice of experts, a violation of a party’s right to defend a case as he or she thinks best.

The decision is therefore a restatement of the fundamental principle in our legal system, namely, that there is “no right without a remedy.”

The issue of consent and the meaning of the term were at the core of the case. The Plaintiff had argued that “consent” cannot be ordered as that would be a “contradiction in terms”, relying on Peel Financial v. Western Delta, a case that was very different on its facts (it had to do with forcing a party to sign a consent order) (see 2003 BCCA 180). Justice Funt rightly distinguished Peel, noting that in the case at bar, “the court is not forcing the plaintiff to sign the form of consent” (at para. 40). The Plaintiff remains free not to sign it but “…if the plaintiff chooses not to sign the form of consent, the plaintiff’s claim may be struck” (at para. 40).

The decision also recognizes the principle that when one chooses to seek personal injury damages from another person, one is entering a world of checks and balances. You gain the right to have the court order the payment of damages in your favour, but in exchange a litigant must give up some personal freedoms including being obliged to produce relevant documents, as well as submitting to one or more medical assessments by the Defendant’s experts. The Gill decision is one of a long list of cases that have maintained a level playing field between the parties.

Further, His Lordship’s decision is a victory for consistency and predictability in the law. He noted that two other decisions of the Supreme Court of British Columbia had come to similar conclusions on the court’s power to make such orders under the Rules: Kalaora v. Gordon, 2011 BCSC 1360; and Nikolic v. Olson, 2011 BCSC 125. He found these decisions to be binding upon him and other judges of the same court, including the master below. At para. 26, Mr. Justice Funt states: “There is only one wicket. That wicket will provide the same answer to the same question on the same set of facts.”

Finally, Mr. Justice Funt also found the consent form used by the expert – in this case Dr. Travlos, a physiatrist – to be reasonable, referring expressly to a letter from the College of Physicians setting out the guidelines that bind all physicians in the province: “The form of consent is discretionary; obtaining consent is not” [emphasis in original] (at para. 45).

The Plaintiff is now seeking leave to appeal Mr. Justice Funt’s order to the Court of Appeal. Stayed tuned for a further update as events unfold.

The decision is currently under appeal.

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