Court File and Parties

CITATION: Gill v. Walters, 2014 ONSC 5364

BARRIE DIVISIONAL COURT FILE NO.: CV-13-202-00

DATE: 20140916

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Baldev Gill, by his Litigation Guardian Gorpreet Gill and Gorpreet Gill, Plaintiffs/Responding Parties

AND:

Opal Juliet Walters, Defendant/Moving Party

BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN

COUNSEL: S. Subramaniam, Counsel for the Plaintiffs R. Truax, Counsel for the Defendant

HEARD: August 19, 2014

ENDORSEMENT

[1] Opal Juliet Walters (“Walters”) as respondent, brings a motion seeking leave to appeal the interlocutory order of DiTomaso J., dated July 29, 2014. The plaintiffs, Baldev Gill and Gorpreet Gill (“Gills”) oppose the relief sought. The order focused on a defence in home future care costs analysis. It was ordered that a student-at-law could be present at Mr. Gill’s home while he was undergoing an assessment conducted by the defence expert. Further, the defence request to conduct a functional capacity evaluation in conjunction with the future care costs analysis was denied.

Background Facts

[2] This action arises out of a motor vehicle accident on May 14, 2012. It is alleged that Mr. Baldev Gill while walking as a pedestrian, was struck by a motor vehicle operated by Walters. His claim is that he suffered a traumatic brain injury, as well as other impairments. The plaintiffs’ expert report suggests that he requires 24-hour supervisory care as a result of his injuries. In addition, Mr. Gill underwent a capacity assessment and was found to be incapable of managing his property and personal care under the Substitute Decisions Act, 1992.

[3] At the request of his own counsel, Mr. Gill underwent a future care needs and cost analysis by Margie Van Hook, an occupational therapist. The defence requested that Mr. Gill be subject to a future care assessment in his home by Reema Shafi, an occupational therapist. It was the plaintiffs’ position that they would only consent to such an assessment on terms. Those terms dealt with the length of time for the interview and the request that a student-at-law be present for support purposes. Those conditions were not acceptable and the motion proceeded to a hearing. After considering the issues, the motions judge, after brief reasons, gave the following orders:

A student-at-law may accompany Mr. Gill at the In-Home Future Care Costs Analysis (defence). I have noted and found this is necessary due to the emotional problems experienced by Mr. Gill.

...the articling student and Mr. Gill shall not communicate with one another during the Assessment. The articling student shall not be called by the plaintiff as a trial witness. The sole purpose and function of the articling student is to be a passive support person. There shall be no functional capacity evaluation testing which is not necessary for or required for a Future Care Costs Analysis.

Rule 62.02(4)

[4] A motion for leave to appeal an interlocutory order engages a consideration of rule 62.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”). The grounds upon which leave may be granted are set out in subrule 62.02(4):

(4) Leave to appeal shall not be granted unless,

(a) There is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) There appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

[5] The purpose of the rule is not to retry the issue on the leave application but rather to determine if there are conflicting decisions by another court and if it is desirable that leave be granted under clause (a) or, under clause (b), if there is a reason to doubt the correctness of the order and the appeal involves matters of importance.

Position of the Moving Party

[6] The defence suggests that the motions judge was incorrect in coming to a decision enabling a student-at-law to be present during the assessment, and incorrectly shifted the onus from the plaintiff to the defendant as to satisfying whether or not there should be conditions for the assessment. The defence also suggested that the motions judge was incorrect in determining that the defence expert did not require a functional capacity evaluation in order to prepare a future care needs and costs analysis. On this issue, the defence suggests in its Factum, “This is especially true, considering that functional testing was performed in the plaintiff’s own Future Care Needs and Costs Analysis.” The defence also suggests that the motions judge’s decision gave an unfair tactical advantage to the plaintiff in placing conditions on the defence expert. As to the test under rule 62.02(4), the defence suggests that there are conflicting decisions and the proposed appeal involves matters of importance such that leave should be granted.

Position of the Plaintiff

[7] The plaintiff opposes the relief sought. The material before the motions judge showed that Mr. Gill was a vulnerable person, that the defence assessment in the plaintiff’s home was intrusive, and that the presence of a support person, including an articling student, was not without precedent. The plaintiff also argued that Ms. Van Hook’s report dealt with future care needs and costs analysis, but she did not conduct functional testing.

[8] Both sides want a report from an occupational therapist as to future care needs and costs analysis. As noted, the plaintiffs received a report from Margie Van Hook. As stated in her report, the basis of her analysis was:

An interview with Mr. Baldev Gill and his daughter-in-law, Ms. Amandep Gill, and functional observations of Mr. Gill at their place of residence in Brampton, Ontario, on March 31, 2014. Ms. Kim Khanna provided Punjabi interpretation.

[9] Ms. Van Hook also conducted a paper review of medical and rehabilitation documents, and conducted telephone consultations with other health care providers. In her report, she dealt with his symptoms, and stated at p.10:

The following chart outlines the residual and ongoing symptoms that Mr. Baldev Gill is experiencing subsequent to the injuries sustained. The information provided is based on report by Mr. Baldev Gill, and his daughter-in-law, Mrs. Amandep Gill, during clinical interview and review of the medical documentation.

There is nothing noted in her report that she conducted any specific testing.

[10] The affidavit of Reema Shafi, the occupational therapist proposed by the defence, takes issue with the presence of third party observers and its potential to skew results. As to her task, she indicates at para. 1, “I am an occupational therapist … to assess Baldev Gill for the purposes of establishing future care needs and costs, resulting from impairments sustained in a motor vehicle accident.” Her affidavit does not specifically address the issue of whether she would be conducting formal functional testing in addition to or as part of her future care needs and costs analysis. Nor does she indicate whether she has conducted assessments with observers present in other cases.

Rule 33.05

[11] The issue of who may attend on an examination is addressed in rule 33.05, which provides:

No person other than the person being examined, the examining health practitioner, and such assistance as the practitioner requires for the purpose of the examination shall be present at the examination, unless the court orders otherwise. [Emphasis added.]

Rule 33.03

[12] Rule 33.03 provides further guidance, “The court may, on motion, determine any dispute relating to the scope of an examination.”

[13] The Court of Appeal acknowledged the important role of a defence medical in Bellamy v. Johnson, 1992 7491 (ON CA), [1992] O.J. No. 864. As Doherty J.A. stated at para. 16:

The “defence medical” provided for by s.105 and Rule 33 forms an integral part of the discovery process where the physical or mental condition of a party to the proceedings is in issue. Discovery in several proceedings said to be …

The most effective procedural device for learning the case, one has to meet and as a result, is an important condition of increased and reasonable settlements, and more effective and fair trials. [Citations omitted.]

In Bellamy, the Court did not allow the plaintiff to record the examination and stated at para. 8, “The plaintiff has no right to determine how the examination is to be conducted or whether it is to be recorded.”

[14] In Souza v. Akulu, [2006] O.J. No. 3061, Master Brott acknowledged the important role of fairness in such examinations. As he stated at para. 15:

In order to maximize fairness, and attempt to keep the parties on an equal basis at a pre-trial and trial, the parties should, as much as possible, be granted equivalent tactical and strategic advantages.

[15] As to the presence of third party observers, the issue was addressed by Browne J. in Petrushko v. Great-West Life Assurance, [2001] O.J. No. 5471. Justice Browne reviewed rule 33.05 and the Court of Appeal’s guidance in Bellamy v. Johnson, supra. On the facts of the case before him, he concluded at para. 17:

I accept the position advanced, even on a hearsay basis, from Dr. Bail, that the type of psychiatric examination would be adversely affected by the attendance of anyone except the plaintiff, which attendance should not be recorded.

[16] In response, the plaintiffs made reference to a number of decisions of the Superior Court, allowing the presence of a student-at-law. In Moore v. Wakim, [2010] ONSC 1991, Howden J. considered the issue, noted the court’s inherent jurisdiction to exercise its discretion and ordered that the occupational therapist “… may be accompanied by a student-at-law from the office of the plaintiff’s counsel as a support person whose role is to be passive and not interventionist.”

The Test for Granting Leave to Appeal

[17] In Farmer’s Oil and Gas Inc. v. Ontario (2013), ONSC, 1608, Molloy J. expressed the test as follows:

[4] The test for granting leave to appeal under Rule 62.02(4) is well-settled. It is recognized that leave should not be easily granted and that the test to be met is a very strict one. There are two possible branches upon which leave may be granted. Both branches involve a two-part test and in each case, both aspect of the two-part test must be met before leave may be granted.

[5] Under Rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is in the opinion of the judge hearing the motion “desirable that leave to appeal be granted”. 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.

[6] Under Rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. … In addition, the moving party must demonstrate matters of importance that go beyond the interest of the immediate parties and involve questions of general or public importance relevant to the development of the law and the administration of justice. [Citations omitted.]

Conclusion

[18] The motions judge allowed a student-at-law to attend during the in-home interview. In my view, it was within his discretion to do so. The cases referred to do not demonstrate a conflict with respect to the law, rather, they illustrate that these decisions are discretionary based on the particular facts before the motions judge. Having made that determination, it follows that it would not be desirable that leave be granted with respect to this issue. Having found that the decision was within the motions judge’s discretion, I am unable to doubt the correctness of the order, or that it is of such importance that leave be granted.

[19] I am of the same view with respect to the motions judge’s decision to deny functional capacity testing in addition to the future care costs analysis, which was permitted on terms outlined in the order. Clearly, the plaintiffs’ expert conducted a future care costs analysis based on an interview and a paper review of the medical record. Rule 33.03 gives the motions judge discretion with respect to this issue. His order gave the defence expert the same opportunity, but not the expanded opportunity to do functional capacity testing. Under rule 62.04(4), I do not find that there are any conflicting decisions on this issue. Nor do I have any reason to doubt the correctness of the order rising to the level of such importance requiring leave to be granted.

[20] The defendant’s motion for leave to appeal is dismissed.

Costs

[21] By agreement between counsel at the end of the motion, it was agreed that the successful party would receive an award of costs of $4,000. It is therefore ordered that the defendant pay to the plaintiffs the sum of $4,000 for costs all inclusive, forthwith.

MULLIGAN J.

Date: September 16, 2014