Court File and Parties
COURT FILE NO.: 8330/12 DATE: 20181030 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Emanuel Ismail Plaintiff – and – Ishmail Sam Ismail, Enterprise Rent-A-Car Canada Company, Lorrie Stevens and Lorraine Stevens Defendants
Counsel: Mark Stoiko, for the Plaintiff Olivier Guillaume, for the Defendants Lorrie Stevens and Lorraine Stevens
HEARD: October 24, 2018
Grace J.
A. Introduction
[1] An inflexible, unyielding preoccupation with the Rules of Civil Procedure (“Rules”) is not appropriate. As Sharpe J.A. said in 1196158 Ontario Inc. v. 6274013 Canada Limited, 2012 ONCA 544 at para. 19, “procedural rules are the servants of justice not its master”. That helps explain why the Rules are to be “liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” Rule 1.04 (1) of the Rules of Civil Procedure.
[2] However, a too casual approach fosters a culture of complacency which delays or extends proceedings to the detriment of the people the system is intended to serve. Expert reports illustrate the point.
[3] The time for delivery of such documents is spelled out in the Rules: the first report at least 90 and any response at least 60 days before the pre-trial conference (Rule 53.03(1) and (2)). The court has jurisdiction to extend the time for compliance at a pre-trial or on motion Rule 53.03(4). It is fair to say that an indulgence is often requested because it is rare that all parties have complied with the time requirements the subrules impose.
[4] If not dealt with before, the problem should be tackled at the pre-trial. As rule 50.06 contemplates, dates for the service of any outstanding or supplementary experts’ reports should be established at that time. Rule 53.03(3)(b) is a sub-rule that should be borne in mind. No one should be permitted to serve a report in the last 30 days before trial.
[5] While better than nothing, cobbling together a schedule for the delivery of outstanding expert reports at a pre-trial is an unsatisfactory solution. The primary purpose of the attendance is to discuss resolution. How can the parties’ lawyers advise their clients concerning settlement without knowing their case and the one they must meet? How can the parties make informed decisions? An opportunity for resolution is squandered. At least in London, Ontario, only exceptionally can another attendance be arranged before the scheduled trial date.
[6] Pre-trials serve another purpose: trial management. If the matter is unresolved, the court must have in hand an informed and largely accurate estimate of time before a trial starts. Consequently, it is imperative that those in attendance at a pre-trial deal with that topic in a meaningful way. Once again, however, how can that crucial function be performed without knowing who all of the witnesses will be, the substance of their evidence, what procedural issues will probably arise and how long the testimony of each witness is likely to take?
[7] The reality is this: late served expert reports result in unnecessary adjournments of long-awaited trials undoubtedly disappointing, if not devastating, anxious parties. Yet, the situation arises over and over.
[8] Alternatively, if the matter proceeds, all too often the tardy delivery of such documents results in trial estimates being grossly exceeded. The consequences should be obvious. The already high costs incurred by the parties increase. In cases involving juries, juror’s lives are no longer simply disrupted, they are turned upside down. The risk of a mistrial increases. Judicial schedules must be rearranged. Other cases move further down the line. The hopes of the parties involved in them are dashed. Their cases are not reached when scheduled. An already creaky, if not cracking, system sags even more. That cycle continues too.
[9] The problem is old but the buy-in is as elusive as time. Judicial warnings and admonitions are not difficult to find. For example, in Balasingham v. Desjardins Financial Security, 2018 ONSC 1792 (S.C.J.) Firestone J. said that the:
…practice of late delivery of expert reports despite the passage of agreed upon and scheduled delivery dates must stop”. (At para. 12.)
[10] I wholeheartedly and emphatically agree.
[11] The solution starts with a procedural rule that is all too often ignored in this part of Ontario despite years of reminders that were initially gentle and are no longer so. Rule 53.03(2.2) obligates parties to come to an agreement that will ensure expert reports are in hand 90 (in the case of an initial report) or 60 days (in the case of a responding report) before a pre-trial. It provides as follows:
Within 60 days after an action is set down for trial, the parties shall agree to a schedule setting out dates for the service of experts’ reports in order to meet the requirements of subrules (1) and (2), unless the court orders otherwise.
B. The Motion
[12] That brings me to this case. It arises from two motor vehicle accidents: the first on October 3, 2010 and the second on January 20, 2011. The statement of claim was issued on October 2, 2012. The action was finally set down for trial on October 3, 2017. Pre-trial and trial dates were obtained on consent during a December 15, 2017 attendance in civil assignment court. The pre-trial is to be held December 22, 2018. The matter is on the April 8, 2019 running trial list.
[13] Counsel for the plaintiff served a number of expert reports in July and August, 2018. They included one authored by psychologist Dr. Michael MacDonald dated July 9, 2018 (the “MacDonald report”).
[14] In a September 4, 2018 letter, counsel for the defendants Lorrie and Lorraine Stevens (the “Stevens defendants”) advised the plaintiff’s counsel that arrangements had been made for Mr. Ismail to be seen by psychiatrist Dr. Hy Bloom in Toronto on October 10 and November 6, 2018.
[15] The plaintiff’s solicitor answered soon afterward. In part he wrote:
We are agreeable to produce our client to attend for a psychiatrist assessment, however, we are not agreeable to produce him for multiple trips to Toronto.
[16] However, that position changed. The plaintiff continues to refuse the request that he be assessed by Dr. Bloom, even after arrangements were made for a single day attendance in London on October 10.
[17] The Stevens defendants seek leave to bring this motion and an order under s. 105(2) of the Courts of Justice Act and rule 33.01 compelling the plaintiff to undergo that examination on December 5, 2018.
C. Analysis and Decision
i. Should Leave to Bring the Motion be Granted?
[18] The Stevens defendants acknowledge that rule 48.04(1) of the Rules of Civil Procedure is engaged. The action has been set down for trial. As noted, pre-trial and trial dates were obtained on consent. Consequently, the parties are prohibited from initiating or continuing any motion or form of discovery, without leave. The definition of “discovery” includes a medical examination of a party as provided under rule 33. Rule 1.03 of the Rules of Civil Procedure.
[19] I have no hesitation in granting the required permission. The MacDonald report addressed Mr. Ismail’s mental condition. The plaintiff’s counsel initially agreed that the plaintiff would be assessed by a psychiatrist but objected to the number and location of the proposed attendances. The agreement was withdrawn despite the fact both concerns were addressed.
[20] In late August, 2008 a co-defendant asked that the plaintiff attend an independent psychological assessment. After initial disagreement, it appears the plaintiff has voluntarily submitted to that examination.
[21] In the circumstances, the Stevens defendants should not be barred from seeking a judicial determination of the propriety of the plaintiff’s continued refusal to their request. To the contrary, fairness demands it.
ii. Should a Psychiatric Examination be ordered?
[22] In argument, plaintiff’s counsel responded to the moving parties’ motion in a broad fashion. The plaintiff argued the motion was untimely, that the proposed examination was unnecessary and that making the order sought would unbalance rather than level, the playing field.
[23] I will deal with each submission in turn.
[24] November 6, 2018 was the date initially proposed by the moving parties as the day on which Dr. Bloom would complete his examination of the plaintiff. That date was problematic given that the pre-trial was scheduled for December 22, 2018. Any report prepared in response to the one prepared by Dr. MacDonald should have been served by October 22, 2018: rule 53.03(2). As mentioned however, a different reason was given for the plaintiff’s opposition to the request: the number of requested visits (two) and their location (Toronto).
[25] By September 11, 2018 the moving parties had arranged for Dr. Bloom to travel to London to examine the plaintiff on a single day: October 10, 2018. A different reason was then given for rejecting those arrangements. In a September 12, 2018 letter plaintiff’s counsel said:
…I would reiterate that our office is not in a position to produce Mr. Ismail for both a psychiatric and a psychological assessment. [Emphasis in original]
[26] The objection based on timing does not resonate. It was not raised as an issue in the correspondence exchanged. In fact, it is unknown how long Dr. Bloom would have needed to prepare his report had the plaintiff attended as scheduled.
[27] Independent examinations allow defendants to obtain an objective assessment from someone they have identified and retained in order to meet the case advanced by the plaintiff. (Chapell v. Marshall Estate at para. 9; Bellamy v. Johnson (1992), 8 O.R. (3d) 591 (C.A.) at pp. 595-596). A defendant has a prima facie right to a first medical examination. (LaForme v. Paul Revere Life Insurance Co. (2006), 84 O.R. (3d) 634 (Div. Ct.) at para. 13). In actions involving multiple accidents and crossclaims, each defendant is entitled to retain an expert of their own. (Abu-Yousef v. Foster at para. 16). However, that right is not absolute. (Kendall v. Sirard (2007), 42 C.P.C. (6th) 50 (Ont. C.A.) at para. 41). It must be exercised with reasonable diligence. (Vassallo v. Piccinato at para. 11; Chew v. Munoz, 2016 ONSC 1511, at paras. 17 and 18, leave to appeal denied 2016 ONSC 4430). Timeliness is a factor in an overall determination of what the interests of justice require.
[28] In this case, the timing issue was created by the approach all of the parties adopted. There was a collective failure to comply with the requirement that they agree to a schedule for the service of experts’ reports. In fairness to them, the problem extends far beyond this action. It is systemic.
[29] However, had the parties complied with rule 53.03(2.2), each one of them would have known the area of expertise of each expert the others contemplated retaining. A consensus may have been reached on that subject. If so, the current impasse would have been avoided entirely. If areas of disagreement remained, this motion could have been brought and disposed of much earlier, thus ensuring that the dates selected for pre-trial and trial would be preserved.
[30] In the absence of the agreement the rules required, the parties appear to have contemplated what has occurred: delivery and review of whatever reports the plaintiff’s lawyer was instructed to obtain, followed by requests by the defendants for independent assessments by experts of their choosing once arrangements were in place. Logistical difficulties are hardly an unexpected consequence of that approach. The timing issue was created by the parties’ collective disregard of rule 53.03(2.2).
[31] The real reason for the plaintiff’s objection is disclosed in his counsel’s September 12, 2018 letter: the difference in the area of concentration of Dr. MacDonald and Dr. Bloom. The plaintiff notes that no psychiatrist has been involved in the plaintiff’s care. The plaintiff retained a psychologist, not a psychiatrist. In Chew v. Munoz, 2016 ONSC 1511, supra at para. 20, the motions judge noted that her decision rendered it unnecessary to determine “whether a psychiatric opinion is necessary to respond to a psychological opinion.”
[32] Bonello v. Taylor, 2010 ONSC 5723, [2010] O.J. No. 4432 (S.C.J.) dealt with a defence request for a second medical examination. Nonetheless, some of the language used by Brown J. (as he then was) bears repeating. In part he wrote at para. 16(iii):
…I would venture that trial fairness should operate as the guiding principle in this area, so that if the plaintiff has decided that expert evidence from one specialty based on an examination of the plaintiff is relevant to the adjudication of her claim at trial, courts should be loath to deny the defence a fair opportunity to respond with expert evidence from the same specialty based on an assessment of the plaintiff.
[33] The plaintiff points out that the “same specialty” in this case is psychology, not psychiatry.
[34] The moving parties argue that the analysis requires a closer examination. Anxiety and depression were two of the “injuries” the plaintiff alleged he suffered in the statement of claim. He had received psychological and rehabilitative treatments from a psychologist (Dr. Robert Schnurr) for a number of years following the accidents. Medications had been prescribed by the two family physicians the plaintiff has seen. They included narcotic analgesics and an anti-depressant, Duloxetine/Cymbalta. (Duloxetine was mentioned in Dr. MacDonald’s report. Counsel for the moving parties referred to the brand name Cymbalta.) The cost of the anti-depressant for the balance of the plaintiff’s life is one of those included in the future care cost report Life Care Planner Krista Cole prepared at the request of Mr. Ismail’s lawyer.
[35] In his report, Dr. MacDonald noted that the dosage of the narcotic analgesics had increased over time. Further, the plaintiff’s depression continued despite the use of Duloxetine. The psychologist added:
In my opinion, this pattern is unsustainable.
[36] Dr. MacDonald also offered the following opinion in his report:
Mr. Ismail continues to suffer from the following accident related diagnosed impairments.
DSM 5 Diagnoses
- Somatic symptom disorder (consistent with pain disorder, DSM IV guidelines). • Predominant pain, several types of chronic or long-term pain
- Major depressive disorder. • Chronic, moderate, with anxiety.
[37] When asked by the plaintiff’s counsel to explain why an examination by a psychiatrist rather than a psychologist was required, the moving parties’ counsel responded by saying:
…I note that your client was prescribed the anti-depressant Cymbalta, (Cymbalta and Duloxetine both refer to an anti-depressant.) which he took for a number of years and a psychiatrist would be much better qualified than a psychologist to assess the impact and appropriateness of such medication.
[38] Unlike a psychologist, a psychiatrist is allowed to prescribe medication: R. v. Mousseau, 2002 ABQB 1136 (Q.B.) at para. 324. (The reply affidavit of Sonja Nuic sworn October 10, 2018 attached a letter bearing the same date from Dr. Bloom that made the same comment at page 2.) The moving parties’ preference is to retain one expert who can assess the plaintiff’s mental health, including the past, present and future need for and effectiveness of an anti-depressant.
[39] The plaintiff argues that such a retainer is unnecessary. Indeed that has been the conclusion reached in some cases. In Daggitt v. Campbell, 2016 ONSC 2742, for example, the defence motion for an independent psychiatric examination following delivery of a report prepared by a psychologist retained by the plaintiff was dismissed. At para. 20 the court explained that:
There is no evidence in this case from an appropriate health practitioner as to why a psychiatric assessment is necessary and what it could add to this case. (See, too, Carradine v. Worsley (2010), 7 C.P.C. (7th) 357 (Ont. Div. Ct.) at para. 11.)
[40] This case is distinguishable. There is such evidence here: medication has been prescribed to treat depression. The cost of continuing it indefinitely is one of the components of damages the plaintiff seeks. A psychiatrist is able to prescribe that medication. A psychologist cannot. The former has expertise the latter lacks.
[41] A motion of the kind brought here was also dismissed in Karbasion v. Batorowicz, 2015 ONSC 6502 (S.C.J.). In that case the plaintiff was not taking “psychiatric medication”. In this case, he is. Undoubtedly, the plaintiff will lead evidence concerning the plaintiff’s mental health and the medications prescribed. At present, the topics will be addressed by a treating psychologist, two treating family physicians and one rule 53.03 expert in psychology. In answer, the Stevens defendants propose to use one psychiatrist with the ability to diagnose and treat mental illness with, among other things, medication.
[42] In Abu-Yousef v. Foster, supra the court required the plaintiff to submit to an assessment by a psychiatrist to respond, coincidentally, to a report authored by Dr. Michael MacDonald. In rejecting the objection based on expertise, Granger J. wrote, in part, at para. 18:
A plaintiff has a right to select the physicians that he will rely on just as the defendants have a right to select the physicians that they wish to have examine the plaintiff. A court should not interfere with such a selection so long as the physician…selected by the defendants is a qualified medical practitioner with expertise in the field relating to the injuries alleged by the plaintiff…A court should never allow a medical examination to take place when its sole purpose is really a fishing expedition.
[43] I agree. In doing so I recognize that Dr. MacDonald was not and is not a physician. He is, however, a health professional who holds a PhD. As Moen J. said in R. v. Mousseau, 2002 ABQB 1136, supra at para. 324 when dealing with psychologists and psychiatrists:
…each brings a specialty to the assessment and treatment of persons with mental illness.
[44] The motion judge in Abu-Yousef v. Foster concluded that the defence proposal that a psychiatrist respond to a report prepared by a psychologist was “a perfectly legitimate request.” (At para. 19.) That characterization applies to this action as well. The moving parties’ request was not made for tactical reasons. Nor is it overreaching. The reason underlying the assessment sought is considered, rational and reasonable.
[45] In such circumstances, the plaintiff’s choice of specialty should not dictate, define or confine the moving parties’ response. Nor should the court accept the plaintiff’s assertion that an adjournment of the pre-trial and trial will be an inevitable consequence because the plaintiff will necessarily have to retain a psychiatrist of his own.
[46] The suggestion that the evidence of a psychiatrist would trump that of a psychologist was specifically rejected in Abu-Yousef v. Foster. At para. 20, Granger J. said:
I have no doubt that the trier or triers of fact will have no difficulty in determining the weight, if any, to be given to any expert evidence.
[47] Once again, I agree. Different or higher education, training and experience does not necessarily lead to a more favourable assessment of the evidence given. Provided the witness is qualified to offer evidence on a topic, it is the quality of the testimony that should determine the assessment of conflicting evidence, not the résumé.
[48] I reiterate, this issue may have been entirely academic had the parties done what the Rules mandate.
D. Conclusion
[49] For the reasons given, I am of the view that the requested examination is an appropriate response to the MacDonald report. The motion is granted. The independent psychiatric examination could not take place on October 10, 2018 in light of the position taken by the plaintiff. A new date of December 5, 2018 starting at 9:30 a.m. at the Sheraton London, 1150 Wellington Street, London, Ontario has been arranged. The plaintiff shall attend that appointment.
[50] As also requested by the defendant, the time for service of Dr. Bloom’s report is extended until January 4, 2019 at 4:30 p.m. That is an aggressive time line. It gives Dr. Bloom less than a month to prepare his report during a holiday filled time of year. I am satisfied it is the best that can be done in the circumstances.
[51] In light of the extension, the parties’ counsel are at liberty to seek an alternative date for the pre-trial if they agree that same will be more productive if held after Dr. Bloom’s report is in hand. If a date can be arranged that is on or before January 18, 2019, same may be re-scheduled administratively by the trial coordinator. Otherwise the approval of the local administrative judge will be required.
[52] Short cost submissions not exceeding three pages each may be made by no later than 4:30 p.m. on November 14 in the case of the moving parties and on November 29, 2018 in the case of the plaintiff.
“Justice A.D. Grace” Grace J.