Carradine v. Worsley, 2010 ONSC 6434
DIVISIONAL COURT FILE NO.: 554/10
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN R.S.J., SACHS AND HARVISON YOUNG JJ.
BETWEEN:
NICOLE DIANNE CARRADINE and KATHRYN MARIE CARRADINE
Appellants
(Plaintiffs)
– and –
JOHN WORSLEY and SEMPLE-GOODER LEASING LIMITED
Respondents
(Defendants)
Jasmine T. Akbarali and William A. G. Simpson, for the Appellants (Plaintiffs)
Tara S. Pollitt, for the Respondents (Defendants)
HEARD at Toronto: November 22, 2010
ORAL REASONS FOR JUDGMENT
HARVISON YOUNG J.
1The appellant argues that the motion judge erred in law in ordering, pursuant to s.105 of the Courts of Justice Act and Rule 33 of the Rules of Practice, that the appellant undergo three medical assessments at the request of the respondent by a psychiatrist, a neurologist and a neuropsychologist.
2The appellant does not object to being examined by the neuropsychologist, Dr. Kiss, but argues that the respondent has failed to satisfy the prerequisites for the order that she be examined by a neurologist and a psychiatrist.
3Dr. Kiss clearly states that it would be useful for him to have the plaintiff examined by a neurologist before he conducts his examination. Specifically he states that a neurologist has the expertise “to determine the existence or non-existence of any level of brain injury.” In other words, “a neurological examine looks to determine whether there is an organic cause for the behaviour, whereas a neuropsychological examine focuses on behavioural issues.” Thus, Dr. Kiss stated that in order to complete his report “a neurological examination should first be completed. In his view, “a neurological examine will confirm or deny in the most complete and comprehensive manner the existence of any type of brain injury, be it mild, moderate or traumatic.”
4The plaintiff has been assessed by another neuropsychologist who expressed the opinion that she may have sustained brain injury.
5The motion judge exercised his discretion and concluded that the evidentiary record before him was sufficient to warrant the ordering of a second defence medical opinion by a neurologist.
6In GEA Group v. Venture Group Co. (2009) ONCA 619 at paras. 58-59, the Ontario Court of Appeal adopted, with approval, an Alberta Court of Appeal interpretation of the principles set out by Labelle J. in B.C. (Ministry of Forests and Okanagan Indian Board) 2003 SCC 71, [2003], 3 S.C.R. 371 at para. 43 relating to the review of discretionary judicial orders. In B.(A.) and D.(C.) 2008 ABCA 51, [2008], 429 A.R. 89, the Alberta Court of Appeal wrote at para. 10:
Orders involving the exercise of judicial discretion are generally evaluated on a standard of reasonableness. Absent a material error in principle, a significant misapprehension or disregard of the evidence or a decision which is clearly wrong, an Appellate Court will not interfere with an exercise of discretion. In assessing whether a decision is clearly wrong, an error in the interpretation or application of the law to found facts will attract appellate review. A decision, though discretionary, will be clearly wrong when it involves an erroneous interpretation of the law. In other words, where the exercise of the discretion rests first on preconditions to the exercise of the discretion, which themselves involve points of law, the standard of review of the chamber judge’s conclusions on those points of law is correctness. However, an appeal court will not interfere merely because it would have exercised the discretion differently.
7The appellant argues that the motion judge’s decision with respect to the neurologist was clearly wrong because the necessary evidence was not provided by the neurologist whom the defence was proposing to conduct the examination.
8We do not accept the appellant’s submission that the motions judge clearly erred in the exercise of his discretion in relying on Dr. Kiss’s affidavit to justify ordering the examination by a neurologist. (See Harris v. Canada Life Insurance Co. (2002), O.J. No. 1123).
9In our view, this order is consistent with the principle of proportionality as it is now articulated in the circumstances of this case.
10In contrast to the record regarding the need for a neurological examination, there is no satisfactory evidence in the record to explain why an examination by a psychiatrist is warranted in addition to whatever evidence may be proffered by the neuropsychologist.
11The only evidence on this issue comes through the affidavit of counsel for the respondent. The respondent argues that the fact that the appellant raises issues of anxiety and depression justifies the order that she be examined by a psychiatrist. The problem, however, is that there is no evidence from an appropriate source to explain precisely what a psychiatrist could add or why a neuropsychologist or neurologist could not address the issues of anxiety and depression or why their reports could not address issues of preexisting injuries or conditions.
12In the absence of any such evidence, we must conclude that the order that the appellant be examined by a psychiatrist was clearly wrong.
13For the foregoing reasons, the appeal from the order that the appellant be examined by a neurologist is dismissed and the appeal from the order that she be examined by a psychiatrist is allowed.
THEN R.S.J.
14I have endorsed the Appeal Book as follows: “This appeal is dismissed with respect to the order requiring the plaintiff to be examined by a neurologist and allowed with respect to the order requiring the plaintiff to be examined by a psychiatrist for oral reasons on behalf of the Court delivered by Harvison Young J. In view of the divided success each party is to bear its own costs throughout.”
HARVISON YOUNG J.
THEN R.S.J.
SACHS J.
Date of Reasons for Judgment: November 22, 2010
Date of Release: December 8, 2010
CITATION: Carradine v. Worsley, 2010 ONSC 6434
DIVISIONAL COURT FILE NO.: 554/10
DATE: 20101122
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN R.S.J., SACHS AND HARVISON YOUNG JJ.
BETWEEN:
NICOLE DIANNE CARRADINE and KATHRYN MARIE CARRADINE
Appellants
(Plaintiffs)
– and –
JOHN WORSLEY and SEMPLE-GOODER LEASING LIMITED
Respondents
(Defendants)
ORAL REASONS FOR JUDGMENT
HARVISON YOUNG J.
Date of Reasons for Judgment: November 22, 2010
Date of Release: December 8, 2010