COURT FILE NO.: CV-17-00569822 MOTION HEARD: 20190114 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Michael Scuglia, Plaintiff AND: RBC Life Insurance Company, Defendant
BEFORE: Master J. E. Mills
COUNSEL: J. Goldblatt, Counsel for the Plaintiff B. Marta, Counsel for the Defendant
HEARD: January 14, 2019
REASONS FOR DECISION
[1] The defendant, RBC Life Insurance Company (“RBC Life”) brings this motion to compel the plaintiff to attend an examination for discovery in this action and to be subjected to cross-examination on an affidavit filed in support of a summary judgment motion. For the reasons that follow, the motion is granted.
Factual & Procedural History
[2] Mr. Scuglia commenced receiving long term disability benefit payments in 2005 pursuant to an insurance policy he had with RBC Life. There were intermittent breaks in payments through to 2010, but after June 2010 Mr. Scuglia received monthly benefit payments on the basis of a “total disability”, providing personal statements and medical reports to confirm a total debilitating mental and physical disability.
[3] Mr. Scuglia has been under the psychiatric care of Dr. Menchions since 2006 with a diagnosis of major depressive disorder. In the year 2010, Dr. Menchions added a diagnosis of post-traumatic stress disorder to his assessment of Mr. Scuglia.
[4] The plaintiff was diagnosed in 2014 with a vascular malformation in the brain. It is uncertain as to the nature of the vascular malformation but MRI evidence suggests the lesion has resulted in some small measure of bleeding into the brain. The medical experts are at odds as to the impact of the lesion on the plaintiff’s medical health. Mr. Scuglia suffers from an apparent array of medical afflictions including vertigo, headaches, sleep disorders, and physical pain that cannot be easily explained by medical testing.
[5] Following investigations in May 2014, RBC Life questioned the total disability claim of Mr. Scuglia and asked that he attend a personal interview and an independent medical examination (”IME”). For almost two years, Mr. Scuglia failed or refused to do so. Eventually he did attend for a preliminary psychiatric assessment in September 2016 but the examination was never completed as Mr. Scuglia refused to continue on the advice of his treating physicians.
[6] It is alleged by Mrs. Scuglia that her husband suffered “intense stroke-like symptoms” immediately following the IME and approximately two days later, Mr. Scuglia presented himself to the Emergency department of St. Michael’s Hospital claiming to be suffering with a “suspected cerebral neurological trauma, as a result of the undue stress associated with the IME”. He was admitted to hospital for assessment. The testing revealed there was no change in Mr. Scuglia’s health to support his claims of having suffered a stroke or stroke-like symptoms.
[7] On January 6, 2017, RBC Life advised Mr. Scuglia that payment of his benefit was being suspended until such time as he attended a personal interview and an independent medical examination.
[8] The Statement of Claim was issued on February 16, 2017 with substantial claims for breach of contract, breach of the duty of good faith, intentional infliction of mental suffering, invasion of privacy, discrimination under the Human Rights Code, and punitive damages for high handed and vindictive conduct. There is no claim seeking a declaration of entitlement to the payment of benefits or to have the benefit payments reinstated; rather, the plaintiff claims a breach of contract. He seeks advance lump sum payment of all benefits that would otherwise have been payable over time together with substantial damages for the various alleged torts, and he claims punitive damages. In total, the plaintiff seeks $3,850,000 plus full indemnity costs.
[9] A Statement of Defence and Counterclaim was filed on June 23, 2017 seeking a declaration that RBC Life was entitled to suspend payment of benefits and advancing a claim that the plaintiff breached his duty of good faith, obstructed the efforts of the defendant to verify the claims of total disability, and as a result vitiated any claim for benefits to which he may have otherwise been entitled. It is alleged the plaintiff has not been totally disabled for a significant period of time and $100,000 is claimed for punitive damages.
[10] The Defence to Counterclaim was delivered on June 29, 2017 with a one paragraph general denial of all allegations asserted in the Counterclaim followed by several paragraphs of commentary respecting the conduct of the defendant in delivering the Statement of Defence and Counterclaim. There is no Reply to the allegations contained in the Statement of Defence.
[11] RBC Life has moved the litigation along without delay. An Affidavit of Documents was immediately delivered and a Notice of Examination for Discovery was served, returnable September 22, 2017. Mr. Scuglia refused to attend. This motion was promptly commenced by RBC Life to compel Mr. Scuglia to attend on an examination for discovery and for cross-examination on his Affidavit of Documents.
[12] By my order of October 16, 2018, Mr. Scuglia was directed to produce a further and better Affidavit of Documents and two supplementary affidavits were delivered, disclosing over a thousand additional documents. The motion to compel cross-examination on the Affidavit of Documents was not pursued at the return of this motion.
[13] Mr. Scuglia swore an affidavit on July 13, 2018 in response to this motion and in support of his own summary judgment motion which has been served but not as yet scheduled for a hearing. Paragraph 2 of the affidavit states: "I swear this affidavit recognizing that I do not believe I am able to be cross-examined on it. I understand an affidavit from my treating psychiatrist, Dr. Bruce Menchions, will be delivered explaining his medical view that cross-examination will be harmful to my physical state and mental health.” The affidavit is 74 paragraphs long and substantively addresses the issues in this action. Mr. Scuglia refused to attend for cross-examination on this affidavit.
[14] In resisting this motion, Mr. Scuglia seeks an order relieving him from any form of examination in this litigation. He seeks to be excused from any form of discovery, beyond the documentary disclosure already provided. He does not submit that written questions would be an appropriate alternative to an oral examination. He asks the court to relieve him of any obligation to participate in any form of examination for discovery in respect of this action and from cross-examination on his affidavit filed in support of this motion and his pending summary judgment motion.
Analysis
[15] Rule 31.02 of the Rules of Civil Procedure creates a presumptive right to an examination for discovery either by oral examination or by written interrogatories, at the election of the party conducting the examination.
[16] Rule 39.02 of the Rules of Civil Procedure addresses a party’s right to cross-examine a witness in respect of an affidavit filed in support of a motion.
[17] The parties agree that the decision of Master McLeod, as he then was, in Ozerdinc Family Trust v. Gowling Lafleur Henderson LLP, 2015 ONSC 2690 sets out the test to be met to resist or curtail examination for discovery. “Oral discovery then is neither an absolute right nor a precondition to fairness and justice. … If the justice of the case requires it there can be no doubt that the court has the jurisdiction to curtail or modify the discovery rights of the parties or to give direction as to how those rights are to be exercised.”
[18] The onus is on the party resisting oral discovery to establish with cogent and persuasive medical evidence that the party is physically unable to attend for discovery without serious risk of harm. It is a high onus to be met. It is not sufficient to merely state that the process would be too stressful or too emotionally upsetting. The medical evidence must show a real potential for the party to suffer harm as a result of attending at an examination for discovery: Botiuk v. Campbell, 2011 ONSC 1632, at para. 44.
[19] The medical evidence need not establish with absolute certainty that harm will be suffered. It is sufficient for the evidence to establish that the risk of harm is real. The resistance to attend an examination must not simply be an attempt by the witness to avoid discovery for personal or strategic reasons. There must be a real and serious risk of harm.
[20] In my view, the test to avoid any form of discovery, including by written questions, must be at least as high as that which must be established to avoid oral examination.
[21] There is no suggestion that Mr. Scuglia is not competent to give evidence nor is he under a disability that would necessitate a litigation guardian to be appointed who could then provide evidence in his stead. Mr. Scuglia submits that the stress associated with any form of further discovery would be harmful to his physical and mental health.
[22] Mr. Scuglia relies on the evidence of Dr. Menchions, his treating psychiatrist, to support this assertion. Dr. Menchions began treating Mr. Scuglia in 2006 and continues to date. He has provided reports to RBC Life regarding Mr. Scuglia’s mental and physical disability claims from 2007 until 2016.
[23] It was previously acknowledged by Dr. Menchions, but then denied on cross-examination, that he regularly conducted sessions with Mr. Scuglia by telephone rather than in person. It is alleged, and to some degree acknowledged, that Dr. Menchions has maintained incomplete notes and records of his sessions and that many reflect nothing more than a new date with the previous record used as a repetitive template. The notes are described as being vague and repetitive without providing full psychiatric diagnostic information.
[24] Dr. Menchions appears to be an advocate for Mr. Scuglia rather than a dispassionate medical witness, particularly with respect to the impact of an examination on the mental and physical wellbeing of his patient. Dr. Menchions states he is of the view that based on the “massive” medical record of Mr. Scuglia, RBC Life’s request for an IME was unnecessary. Under cross-examination, Dr. Menchions fairly concedes that he has no understanding of what is required by the insurance company and he cannot state with any certainty what is necessary or unnecessary in the circumstances. He offers opinions on areas outside of his medical expertise. Dr. Menchions was prepared to speculate if it would assist his patient.
[25] While I commend Dr. Menchions’ commitment to his patient, I do not find his evidence to be helpful on this motion and I do not attribute much, if any, weight to his affidavit.
[26] Mr. Scuglia also relies on the affidavit evidence of Dr. Omar Ghaffar who describes himself as a neuropsychiatrist with a practice focussed on the psychiatric care of neurological patients. This would involve the diagnosis and treatment of any changes in mood, personality, cognition, behaviour, or psychosocial functioning associated with neurological conditions. Dr. Ghaffar is not a neurologist and would defer to a neurologist for the assessment, diagnosis or for the provision of an opinion on a neurological condition. He formulated his opinion based solely on a review of Mr. Scuglia’s medical records for the years 2007 to 2017. Dr. Ghaffar has never met Mr. Scuglia.
[27] Relying upon the vascular malformation diagnosis of Mr. Scuglia’s treating neurologists, Dr. Ghaffar then goes on to provide his view, based on literature of which he is aware, that acute anger or psychological distress may cause a sudden and short increase in blood pressure which could then contribute to an intracerebral hemorrhage in a person with a vascular malformation which could be fatal. Dr. Ghaffar then opined that the stress of an IME could contribute to bleeding of the vascular malformation which, based on its location in Mr. Scuglia’s brain, could be fatal. Such a conclusion, would appear to be outside of the expertise of Dr. Ghaffar as a psychiatrist, even one with experience treating neurological patients. It would appear that Dr. Ghaffar has offered a neurological opinion for which he is admittedly not an expert.
[28] Dr. Dost is a neurologist who provided medical evidence on behalf of RBC Life for this motion. Dr. Dost also relied solely on the medical notes and records of Mr. Scuglia. Having regard to the documented vascular malformation, it was Dr. Dost’s opinion that while it is possible for an intracerebral hemorrhage to occur as a result of a sudden and acute increase in blood pressure, the risk would be very small and non-quantifiable. He would disagree there is a substantial risk of harm or death. Rather, Dr. Dost was of the opinion that if Mr. Scuglia were to undergo examination for discovery, the risk he would suffer physical or neurological damage was “exceedingly low and non-quantifiable”.
[29] Dr. Ghaffar also provides his opinion that if Mr. Scuglia indeed suffers from conversion disorder, as initially diagnosed in 2005 and evidently confirmed in 2016 by Dr. Feinstein after the aborted IME, any further investigations would be counterproductive. Conversion disorder may lead Mr. Scuglia to suffer neurological (stroke-like) symptoms as a result not of physical causation, but rather from psychological catalysts.
[30] It is Dr. Ghaffar’s opinion that the stress of an IME (and by analogy an examination for discovery) could cause Mr. Scuglia to genuinely believe he was suffering a stroke but without any physical causation for the symptoms experienced. Dr. Ghaffar does not go so far as to say Mr. Scuglia would suffer serious medical harm from an examination, just that it would serve to perpetuate his disability and likely result in another hospitalization to seek treatment for medically non-existent symptoms.
[31] Dr. McMaster provided a report for RBC Life on this motion, largely based on a review of the medical notes and records of Mr. Scuglia. Dr. McMaster did meet with Mr. Scuglia for three hours in September 2016 when the IME was initiated but then aborted. Dr. McMaster is of the opinion that Mr. Scuglia was psychiatrically capable of undergoing a psychiatric assessment in 2016 provided certain accommodations were implemented, including frequent breaks as required. Dr. Menchions, as Mr. Scuglia’s treating psychiatrist, made no notes regarding any adverse outcomes or complaints following the initial IME session with Dr. McMaster.
[32] It is acknowledged by Drs. Ghaffar, Feinstein and McMaster that the appropriate treatment for conversion disorder is cognitive behavioural therapy (“CBT”) whereby the patient is exposed in a controlled fashion to the stressors which have historically resulted in the onset of conversion symptoms. Mr. Scuglia did receive some limited CBT treatment in 2006 but has not undergone any meaningful treatment with respect to his diagnosis of conversion disorder, despite a recommendation for CBT having been made in 2005.
[33] The responding medical evidence of Dr. McMaster submits that attendance at an examination for discovery, while unquestionably stressful for Mr. Scuglia, may well assist in his recovery. If there was any damage, it would be temporary in the natural course of this illness which is characterized by a course of relapse and recovery.
[34] To treat the disorder, Mr. Scuglia must face the stressors which induce a relapse. It is Dr. McMaster’s opinion that his dealings with RBC Life and this litigation are recognized stressors for Mr. Scuglia. Facing these stressors may allow his symptoms to improve as the stressors are put behind him and the litigation moves forward.
Conclusion
[35] It does not appear, based on the medical evidence before me, that compelling Mr. Scuglia to attend an examination for discovery would result in “irretrievable injury”: Ferrara v. Roman Catholic Episcopal Corp. of Toronto at para. 11.
[36] Mr. Scuglia has failed to meet his burden to demonstrate that he is unable to attend on an examination for discovery or cross-examination because to do so could cause him to suffer psychological or physical damage. The medical evidence submitted by both parties does not support such a conclusion. There does not appear to be a real and serious risk of harm.
[37] The plaintiff has made serious and significant allegations in his Statement of Claim. RBC Life has responded with its own serious and significant allegations. Credibility is a central issue in this action and in my view, the claims cannot be properly adjudicated solely on the basis of Mr. Scuglia’s prior medical records, even accepting they are voluminous in nature. This proposal is not a reasonable alternative to RBC Life’s right to an examination for discovery of Mr. Scuglia.
[38] As noted above, Mr. Scuglia did not submit that written questions might be an appropriate means by which to conduct an examination for discovery and as such, I have not considered that to be an acceptable alternative to oral examination for discovery.
[39] Mr. Scuglia shall attend an examination for discovery at a time and place to be agreed upon by counsel. Appropriate accommodations shall be made for Mr. Scuglia which may include conducting the examination in a place of comfort for him, frequent breaks in questioning and, if requested, the attendance of a psychiatric professional with experience in the treatment of conversion disorder to provide psychiatric support.
[40] If Mr. Scuglia intends to pursue a summary judgment motion and rely upon his affidavit sworn on July 13, 2018 in support of the motion, he shall be subject to cross-examination on the affidavit with the same accommodations as required for the examination for discovery.
[41] RBC Life is entitled to its costs of this motion, on a partial indemnity basis. If the parties cannot agree on an appropriate quantum, written submissions not exceeding three pages together with a Costs Outline, may be made within 30 days of the release of these reasons.
Master J. E. Mills