LaForme v. Paul Revere Life Insurance Co.

84 O.R. (3d) 634

Ontario Superior Court of Justice, Divisional Court,

Cunningham, Platana and Pierce JJ.

February 13, 2006

Civil procedure -- Discovery -- Medical examination -- Right of insurer to medical examination under insurance contract being separate and distinct from right of party to request medical examination under s. 105 of Courts of Justice Act and Rule 33 -- Contractual examination prior to commencement of litigation not pre-empting right to medical examination under s. 105 and Rule 33 -- Defendant having prima facie right to first medical examination under s. 105 and Rule 33 without need for evidence or justification -- Courts of Justice Act, R.S.O. 1990, c. C.43, s. 105 -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 33.

The insured was receiving disability benefits from the insurer following an automobile accident. At the request of the insurer, the insured attended for examination by a psychiatrist. The psychiatrist concluded that the insured had no physical impairment that prevented him from working but was addicted to opiates. The insurer arranged for the insured to be assessed by an expert in the field of addiction medicine. The expert recommended that the insured be admitted to a comprehensive addiction treatment program. The insured refused to comply. As a result, the insurer suspended his disability benefits. The insured brought an application for a declaration that the insurer could not terminate his benefits for that reason. The insurer moved successfully for an order for another medical examination by the same addiction expert. The insured appealed.

Held, the appeal should be dismissed.

Medical examinations conducted pursuant to contract before the commencement of litigation do not constitute medical examinations for the purpose of [page635] Rule 33 of the Rules of Civil Procedure and s. 105 of the Courts of Justice Act. The right of an insurer to an examination under an insurance contract is entirely separate and distinct from the right of a party to request a medical examination under s. 105 and Rule 33, and an examination under the contract, prior to litigation, does not pre-empt or nullify the right to a medical examination under s. 105 and Rule 33. A defendant has a prima facie right to a first medical examination under s. 105 and Rule 33 without the need for evidence or justification. There was no abuse of process in this case, nor was there an attempt to bolster an earlier opinion.

APPEAL from the order of Desotti J. of the Superior Court of Justice, dated October 5, 2004, for a medical examination.

Cases referred to Harris v. Canada Life Assurance Co. (2002), 2002 49429 (ON SC), 59 O.R. (3d) 123, [2002] O.J. No. 1123, 20 C.P.C. (5th) 149 (S.C.J.); Ribeiro v. Canada Life Assurance Company of Canada (8 February 2002), Toronto 99-CV-175779 (S.C.J.); Tsegay v. McGuire, 2000 50968 (ON SC), [2000] O.J. No. 1557, 1 C.P.C. (5th) 311 (S.C.J.), apld Chapell v. Marshall Estate, [2001] O.J. No. 3009, [2001] O.T.C. 572, 15 C.P.C. (5th) 54 (S.C.J.); Robinson v. Toby, 1996 19715 (ON SCDC), [1996] O.J. No. 423, 45 C.P.C. (3d) 11, 20 R.F.L. (4th) 413 (Div. Ct.), distd Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, s. 105 [as am.] Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 33

J.F. O'Brien, for applicant (appellant). Mark E.P. Cavanaugh, for respondents (respondents in appeal).

[1] BY THE COURT:-- This is an appeal from the decision of Desotti J. dated October 5, 2004 ordering the appellant, Richard LaForme, to attend for a medical examination by Dr. Juan Negrete as requested by the respondent insurance company.

[2] The appellant submits that Desotti J. erred in law in making such an order and seeks an order of this court to have the decision set aside or varied.

Background

[3] Following an automobile accident, which occurred February 13, 1995, the appellant found himself unable to work and applied for disability benefits under a policy with the respondent. This matter was eventually settled and the appellant was paid a substantial sum based on Minutes of Settlement signed in 1998. The Minutes of Settlement contained the usual clauses requiring the appellant to abide by the terms of the policy. In addition to the statutory condition with respect to medical examinations, [page636] the Minutes stipulated that he submit to two medical examinations and continue efforts to mitigate his disability, in order to receive future benefits.

[4] Following the two required examinations, the respondent requested that a Dr. Michael Lacerte, a physiatrist, examine the appellant. The appellant refused to attend with Dr. Lacerte, but relented after the respondent filed an application seeking a court order. In his report, Dr. Lacerte concluded although there was no physical impairment preventing the appellant from working, he was addicted to opiates and that a specialist in addiction medicine should see him. The respondent made arrangements for the appellant to be assessed by Dr. Negrete, an expert in the field of addiction medicine. Once again the appellant refused to attend.

[5] The respondent amended its original application and sought a court order forcing the appellant to attend with Dr. Negrete.

[6] This matter came before Trafford J. who found in favour of the respondent, and the resulting examination by Dr. Negrete occurred in February 2002. In his report, Dr. Negrete stated that the appellant was addicted to the opiates prescribed by his treating physicians and recommended that the appellant be admitted to the Homewood Health Centre in Guelph as the detoxification stage of a comprehensive addiction treatment program.

[7] There was a significant exchange of medical reports in the following year between physicians for both sides, with the appellant steadfastly refusing to be admitted to Homewood. In February 2003, citing the appellant's refusal to follow the plan of treatment suggested by Dr. Negrete, the respondent gave the appellant two weeks' notice before suspending his disability benefits.

[8] In response to the suspension, the appellant brought an application, which forms the backdrop for the appeal presently before this court, for a declaration that the respondent could not terminate benefits for the cited motive. As part of a series of motions leading up to the hearing of this application, the respondent brought a motion seeking an order for another medical examination of the appellant by Dr. Negrete. That motion was granted by Desotti J. and is the subject of this appeal.

[9] In his decision, Desotti J. found that despite the limited time available before the scheduled hearing of the underlying application, the respondent was entitled to enforce its right to a medical examination of the appellant pursuant to Rule 33 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43. In arriving at his decision, Desotti J. stated that: [page637]

. . . given the situation that this is an independent medical first up, I don't think the affidavit in support is necessary in these circumstances since the whole process is part of an addiction evaluation which is really the crux . . . of the matter. It is the central issue . . . This is so even though there has been a previous medical by the same doctor, but not in the same context of this particular application.

The Issues

[10] (1) Do prior medical examinations conducted pursuant to contract before the commencement of litigation constitute medical examination for the purposes of Rule 33 and s. 105 of the Courts of Justice Act?

(2) Did the respondent have a prima facie right to have the appellant examined pursuant to those provisions, without evidence of justification?

Standard of Review

[11] It is the position of the appellant that the issues in this appeal raise questions of law and legal principles and hence the appropriate standard of review ought to be correctness. The respondent argues that appellate courts ought not to interfere with findings of fact, inferences of fact or conclusions of mixed law and fact in the absence of a legal or palpable and overriding error. It is conceded by the appellant that the decision of Desotti J. was discretionary and in our view judicial discretion should not be interfered with unless it is apparent that the judge applied erroneous principles that rendered the result "clearly wrong". Section 105 provides that where the physical or mental condition of a party is in issue, the court may order the party to undergo a physical or mental examination by one or more health practitioners. The appellant in the present case has quit his job and has put his mental condition in issue, and indeed Desotti J. found that the addiction evaluation was the crux of this case. In our view, this is a finding of fact and is entitled to significant deference.

Analysis

[12] The appellant, while outlining a number of errors he says Desotti J. made, essentially takes the position that the learned judge ought to have considered the respondent insurer's request for another examination by Dr. Negrete as constituting a second assessment for the purposes of the motion. He argues that the ordering of a Rule 33 medical examination is wholly discretionary. The appellant further argues that the respondent had the [page638] onus of establishing entitlement to an examination and that an affidavit from a medical expert should have been required.

[13] We have reviewed the various cases put forward by the appellant and the respondent in this matter and what may be some conflict in the various decisions. We are of the view that the line of authorities followed by Desotti J. including Harris v. Canada Life Assurance Co. (2002), 2002 49429 (ON SC), 59 O.R. (3d) 123, [2002] O.J. No. 1123 (S.C.J.), Tsegay v. McGuire, 2000 50968 (ON SC), [2000] O.J. No. 1557, 1 C.P.C. (5th) 311 (S.C.J.), and Ribeiro v. Canada Life Assurance Company of Canada (8 February 2002), Toronto 99-CV- 175779 (S.C.J.) are persuasive and which held, inter alia, that:

(1) the right of an insurer to an examination under an insurance contract is entirely separate and distinct from the right a party has to request a medical examination under s. 105 and Rule 33.

(2) an examination under the contract between the parties, prior to litigation, does not pre-empt or nullify the clear right to a medical examination under s. 105 and Rule 33; and

(3) a defendant has a prima facie right to a first medical examination under s. 105 and Rule 33 without the need for evidence or justification.

[14] Disability insurers have different rights under the insurance policy than under the Courts of Justice Act and the Rules. These rights serve separate purposes. In the policy of insurance, the insurer contracted for rights of examination: those rights form part of the bargain between the insured and the insurer. The Courts of Justice Act and the Rules of Civil Procedure have created a statutory regime to promote fairness in the litigation process and to uphold the right of the defendant to conduct its defence as advised and to assist the court at an eventual trial by furnishing expert evidence that is subject to the adversarial process. The purpose of s. 105 and Rule 33 is to "level the playing field". As Nordheimer J. confirmed in Harris, supra at para. [10]:

If a person enters into an insurance contract which provides the insurer with the right to an examination, that right exists separate and apart from the right which the insurer has to a medical examination under s. 105 once it becomes a party to litigation.

[15] The material facts in Harris, supra, are quite similar to those on this appeal. The plaintiff's claim was under a long-term [page639] disability policy. While the insurer was paying benefits to the plaintiff, it had the plaintiff examined by a physician. As a result of that examination, the insurer ceased making payments. An action was thereafter commenced by the plaintiff and the defendant requested the plaintiff to attend for medical examinations. The plaintiff refused, stating that she had already been subjected to one medical examination at the insistence of the defendant and that there was no evidence that would justify an order that she undergo further examinations.

[16] Nordheimer J. rejected the plaintiffs argument. He found that the right to medical examinations under the contract of insurance should not pre-empt the clear right under s. 105, and he followed the reasoning of Gillese J. (as she then was) in Tsegay, supra. Nordheimer J. stated at p. 127 O.R.:

. . . In particular, I agree with the central point made by Madam Justice Gillese that there is no reason to conclude that the right to a medical examination provided other than under s. 105 should pre-empt the clear right given by s. 105 to such an examination . . .

[17] Nordheimer J. concluded that one of the two examinations sought by the defendant was a first examination under s. 105, that the defendant had a prima facie right to it, and that no evidence was required.

[18] In our view, the conclusions reached in Harris, Tsegay and Ribeiro, supra, are consistent with the express wording of s. 105 and Rule 33. Section 105 distinguishes between an "order for a physical or mental examination" and "further examinations". Rule 33 draws a similar distinction. As Gillese J. stated at p. 313 C.P.C. of Tsegay, supra:

. . . The purpose of s. 105 and Rule 33 is to ensure that a defendant has full rights of production and discovery, once an action has been commenced and pleadings exchanged. These latter provisions ensure that if a party puts his or her medical condition in issue in a civil proceeding, the opposing party can test that allegation under fair conditions. A defendant is entitled to complete discovery in order to properly defend and assess the allegations in the pleadings.

[19] It goes without saying that a plaintiff, in litigation, can be assessed unlimited times by medical experts of his or her own choosing without the knowledge of the defendant, both before and after a defence medical examination. That, in our view, is one of the underlying reasons why defendants have, at least, a prima facie right to the "first" examination in the proceeding. The discretion afforded pursuant to s. 105 and Rule 33 is designed to prevent an abuse of process. In the present case there was no abuse of process nor was there an attempt to bolster an earlier opinion. Rather, it was a request to have the plaintiff seen [page640] by the same expert doctor who had assessed him two and a half years earlier. It was not, in our view, an attempt to corroborate another medical opinion.

[20] As to the requirement of an affidavit as the appellant argues, we are of the view that the decisions in Robinson v. Toby, 1996 19715 (ON SCDC), [1996] O.J. No. 423, 45 C.P.C. (3d) 11 (Div. Ct.) and Chapell v. Marshall Estate, [2001] O.J. No. 3009, [2001] O.T.C. 572 (S.C.J.) are entirely distinguishable. Robinson, supra, was a matrimonial case in which it was sought to set aside a separation agreement. The plaintiff wife brought a motion for an order requiring her respondent husband to submit to a psychological and psychiatric examination. The court specifically found in Robinson that the husband had not put his mental condition in question in any way in the proceeding.

[21] In Chapell, supra, the court found that the plaintiff had not placed her psychiatric health in issue in her statement of claim. In any event, Chapell confirms that under s. 105 the defendant is entitled to one defence medical examination.

[22] In our view, as to the entitlement to a first examination, Chapell is consistent with the reasoning in Harris and Tsegay. In the present case, which has to do with disability insurance, the plaintiff has put his mental health in issue and, indeed, it is the crux of the dispute. There is no need, in such circumstances, for an affidavit from a psychiatrist or justification by way of evidence. The prima facie entitlement to the medical examination requested is there. In any event, although not required, there was overwhelming evidence before Desotti J. to justify granting a medical examination to be conducted by Dr. Negrete.

[23] The appeal is therefore dismissed and if the parties cannot agree upon the matter of costs having to do with this appeal and the motion for leave, we would ask that we be so informed within 30 days of the release of this decision.

Appeal dismissed.