Babakar et al. v. Brown et al. [Indexed as: Babakar v. Brown]

96 O.R. (3d) 317

Ontario Superior Court of Justice,

Divisional Court,

Karakatsanis J.

June 15, 2009

Civil procedure -- Discovery -- Examination for discovery -- Defendant granted leave to appeal ruling that medical professionals who undertook assessments of plaintiffs pursuant to s. 42 of Statutory Accident Benefits Schedule were not "experts" for purposes of rule 31.06(3) -- Decision open to serious debate -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 31.06(3) -- Statutory Accident Benefits Schedule -- Accidents on or after November 1, 1996, O. Reg. 403/96, s. 42.

The plaintiffs brought an action against the defendant insurer after the defendant terminated their statutory accident benefits. They alleged that the insurer did not provide necessary information to the health professionals who assessed them pursuant to s. 42 of the Statutory Accident Benefits Schedule. The claims examiner for the defendant refused to answer certain questions on discovery relating to whether the health care professionals had requested or needed certain records. The insurer refused to answer the questions on the basis that they went beyond the findings, opinions and conclusions of an expert permitted under rule 31.06(3) of the Rules of Civil Procedure and amounted to cross-examination of expert witnesses. On a refusals motion, the Master ordered that the questions be answered. The defendant's appeal from that ruling was dismissed on the ground that medical professionals who undertake assessments pursuant to s. 42 of the SABS are not "experts" for the purposes of rule 31.06(3) as they are not assisting the trier of fact to reach conclusions based upon the facts in the case, but rather are akin to "fact" witnesses. The defendant applied for leave to appeal.

Held, the application should be granted.

There was no precedent on this issue and it was at least arguable that what is prohibited by the Rules is a cross- examination upon the "expertise" of witnesses who may ultimately give expert opinion evidence and that the same policy reasons for such a prohibition apply to an "assessor". The decision was open to serious debate.

APPLICATION for leave to appeal the decision dismissing an appeal from the order of a Master.

Cases referred to Babakar v. Brown (2009), 2009 13622 (ON SC), 95 O.R. (3d) 206, [2009] O.J. No. 1270, 71 C.C.L.I. (4th) 258, [2009] I.L.R. I-4815 (S.C.J.); Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 7405 (ON SC), 7 O.R. (3d) 542, [1992] O.J. No. 652, 55 O.A.C. 316, 6 C.P.C. (3d) 271, 32 A.C.W.S. (3d) 1026 (Div. Ct.); Fyffe (c.o.b. Fyffe Logging) v. Ontrac Equipment Services Inc., [2008] O.J. No. 3723 (S.C.J.); Horodynsky Farms Inc. v. Zeneca Corp. (c.o.b. Zeneca Agro) (2006), 2006 31976 (ON CA), 83 O.R. (3d) 792, [2006] O.J. No. 3716, 272 D.L.R. (4th) 545, 215 O.A.C. 233, 32 C.P.C. (6th) 201, 151 A.C.W.S. (3d) 567 (C.A.); Kelly v. Kelly, [1990] O.J. No. 603, 42 C.P.C. (2d) 181, 21 A.C.W.S. (3d) 81 (U.F.C.); Lecocq Logging Inc. v. Hood Logging Equipment Canada Inc., [2005] O.J. No. 2338, 14 C.P.C. (6th) 287, 139 A.C.W.S. (3d) 995 (S.C.J.) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 31.06(3), 62.02(4), (a), (b) Statutory Accident Benefits Schedule -- Accidents on or after November 1, 1996, O. Reg. 403/96, s. 42 [as am.] [page318]

S. Wayne Morris and David Raposo, for defendant State Farm Mutual Automobile Insurance Company, the moving party. Wendy H. Sokoloff, for plaintiffs/responding parties.

Endorsement

[1] Endorsement of KARAKATSANIS J.: -- The moving party seeks leave to appeal the decision of Lederer J. [(2009), 2009 13622 (ON SC), 95 O.R. (3d) 206, [2009] O.J. No. 1270 (S.C.J.)] dated February 11, 2009, dismissing an appeal from the decision of Master Hawkins dated November 4, 2008 on a refusals motion.

[2] The responding parties (the plaintiffs in the action) were involved in a motor vehicle accident and received benefits pursuant to the Statutory Accident Benefits Schedule -- Accidents on or after November 1, 1996, O. Reg. 403/96 ("SABS") from the moving party insurer. The insurer required that the responding parties be assessed by three health professionals pursuant to s. 42 of the SABS for the purpose of assisting an insurer to determine if a person continues to be entitled to a benefit. The insurer delivered the reports of the health professionals as required under the SABS. Based at least in part upon the assessment of those professionals, the insurer terminated the payment of the SABS and this proceeding was commenced, alleging in part that the insurer did not provide necessary information to the health professionals.

[3] The claims examiner for the insurer refused to answer certain questions on discovery relating to whether the doctor and other health professionals who had assessed the responding parties had requested or needed pre-accident or other records. The insurer refused to answer the questions, claiming that the questions went beyond the "findings, opinions and conclusions" of an expert permitted under rule 31.06(3) [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] and amounted to cross- examination of expert witnesses, not permitted on an examination for discovery.

[4] Rule 31.06(3) deals with the scope of examination for discovery related to expert opinions:

31.06(3) A party may on an examination for discovery obtain disclosure of the findings, opinions and conclusions of an expert engaged by or on behalf of the party being examined that relate to a matter in issue in the action and of the expert's name and address . . . .

[5] The Master held that the moving party had to provide the answers as the questions came within rule 31.06(3). On appeal, Lederer J. held that many of the questions amounted to cross- examination and the Master erred in finding that they related to foundational information permitted by rule 31.06(3). However, [page319] he upheld the decision requiring that questions be answered, concluding that medical professionals who undertook assessments pursuant to s. 42 of the SABS were not "experts" for the purposes of rule 31.06(3) but were "assessors" whose opinions were a proximate or immediate cause of the harm, loss or damage claimed. The health professionals were not assisting the trier of fact to reach conclusions based upon the facts in the case but were rather akin to "fact" witnesses.

[6] The applicant relies upon both rule 62.02(4)(a) and (b). Under rule 62.02(4), the applicant must show that either (a) there is a conflicting decision by another judge or court in Ontario or elsewhere; or (b) that there is good reason to doubt the correctness of the decision in question. In either case, the applicant must also show that the issues are of such general importance, beyond the interests of the parties, such that it is desirable that leave be granted.

[7] The applicant argued that the case conflicted with other cases because the consequence of the decision is to allow cross-examination of experts, in conflict with the cases such as Kelly v. Kelly, [1990] O.J. No. 603, 42 C.P.C. (2d) 181 (U.F.C.); Lecocq Logging Inc. v. Hood Logging Equipment Canada Inc., [2005] O.J. No. 2338, 14 C.P.C. (6th) 287 (S.C.J.), at para. 29; Fyffe (c.o.b. Fyffe Logging) v. Ontrac Equipment Services Inc., [2008] O.J. No. 3723 (S.C.J.), at paras. 37-43. Rule 31.06(3) permits discovery of the foundational information for an expert's findings, opinions and conclusions in the final report but not cross-examination: Horodynsky Farms Inc. v. Zeneca Corp. (c.o.b. Zeneca Agro) (2006), 2006 31976 (ON CA), 83 O.R. (3d) 792, [2006] O.J. No. 3716 (C.A.), at paras. 13-14, 19.

[8] A conflicting decision must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 7405 (ON SC), 7 O.R. (3d) 542, [1992] O.J. No. 652 (Div. Ct). In this case, the appeal judge found [at para. 37] that most of the unanswered questions went beyond "findings, opinions and conclusions" of the assessor and amounted to cross-examination; he also agreed with the principles expressed in the cases cited that questions amounting to cross-examination of expert witnesses are not permitted on discovery. That part of the appeal judge's reasons is not challenged by the applicants.

[9] What is challenged in this leave application is the appeal judge's finding that the health professionals who wrote the reports in this case were not "experts" to whom the limits in rule 31.06(3) applied but rather "assessors" under s. 42 of the SABS whose opinion is alleged to be proximate or immediate cause of [page320] the harm, loss or damage, and akin to "fact" witnesses. No decisions were cited on this specific issue and I am not satisfied that leave to appeal may be granted under rule 62.02(4)(a).

[10] With respect to rule 62.02(4)(b), the applicant submits that there is good reason to doubt the correctness of the decision on this basis -- or at least that it is open to serious debate -- because the appeal judge found that, for the purposes of rule 31.06(3), there is a distinction between experts retained for litigation and experts retained by an insurer pursuant to s. 42 of the SABS, resulting in a distinction between experts retained before and after the litigation was commenced. The examples used by the appeal judge were analogous to "parties" whose expertise was the subject of a negligence claim. The applicant submitted that the assessors under s. 42 did not determine any facts but provided opinion evidence based upon the facts presented, as did any other expert.

[11] The applicant further submits that the appeal judge erred in finding that the experts were a proximate or immediate cause of the harm, loss or damage claimed, and confused the experts with the insurer; the Statement of Claim does not allege that the experts were the proximate or immediate harm, but rather alleges that the decision of State Farm to deny the benefits caused the harm and damages alleged.

[12] I need not be satisfied that the decision is probably wrong but rather that it is open to serious debate. There is no precedent and it is at least arguable that what is prohibited by the Rules is a cross-examination upon the "expertise" of witnesses who may ultimately give expert opinion evidence and that the same policy reasons for such a prohibition apply to an "assessor". I am therefore satisfied in this case the decision is open to serious debate.

[13] Leave will be rare from a decision arising out of refusal on an examination for discovery. However, leave to appeal should be granted on questions that warrant consideration and resolution by an appellate court, on matters relevant to the development of the law and the administration of justice. The decision raises a new question of principle regarding the interpretation of rule 31.06(3) for which there is no settled law and establishes a practice impacting the discovery of all assessors under s. 42 of the SABS.

[14] Leave to appeal is granted for the issue of whether rule 31.06(3) applies to experts under s. 42 of the SABS. The parties agreed that $3,500 is an appropriate quantum. Costs are reserved to the panel hearing the appeal.

Application granted.