Court File and Parties
COURT FILE NO.: 3066/14 DATE: 20200120 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Lindsy Coll, Plaintiff AND: Cara Robertson et al., Defendants
BEFORE: Grace J.
COUNSEL: C. Martin, for the plaintiff W. G. Woodward, for the defendant Robertson
HEARD: January 17, 2020
Endorsement
A. Introduction
[1] This negligence action arises from a May 29, 2013 motor vehicle accident involving the plaintiff’s motor vehicle and one owned by the defendant Cara Robertson. Ms. Coll seeks non-pecuniary damages and special damages in the amounts of $300,000 and $2 million respectively.
[2] This proceeding is to be tried with another (London court file no. 3067/14) that arises from a May 5, 2013 accident.
[3] Pre-trial (June 4, 2020) and trial (the October 13, 2020 running list) dates were assigned during the August 2019 civil assignment court. In October 2019, the moving party’s counsel advised Ms. Coll’s solicitors of arrangements he had made to have the plaintiff examined by a psychologist and physiatrist. Through her counsel, the plaintiff refused to meet with the former. While willing to attend the scheduled appointment with the latter, Ms. Coll declined to sign any consent or authorization. Later, the refusal was expanded to extend to any questionnaire.
[4] In early December 2019, the moving party’s request was enlarged to include a psychiatric assessment. The plaintiff refused to participate. This motion followed. It seeks orders requiring the plaintiff to attend for assessment by the psychologist, psychiatrist and physiatrist proposed by the moving party, execution of consent forms and questionnaires and adjournment of the pre-trial and trial dates.
[5] At the end of the hearing I wrote a short endorsement:
a) Vacating the pre-trial and trial dates;
b) Ordering the plaintiff to sign consent forms and to the extent required by s. 105(5) of the Courts of Justice Act, complete questionnaires;
c) Adding the matter to the February 21, 2020 civil assignment court list; and
d) Reserving the issue of costs.
[6] This is the longer endorsement I promised counsel I would deliver.
B. The Pre-Trial and Trial Dates
[7] Rule 53.03(2.2) is an important sub-rule. It requires parties to agree to a schedule for the timely delivery of expert reports within sixty days of setting an action down for trial. The provision is not permissive. It is mandatory.
[8] That means the schedule should be in place by the time the matter appears on an assignment court list. If done properly, the schedule will identify, at least by specialty, the nature and deadline for delivery of each expert’s report the parties intend to rely upon.
[9] I recognize there may be areas of disagreement but timely attempts to do what the sub-rule mandates will identify the issue and provide an early opportunity to resolve same whether by way of judicial involvement in a rule 50.13 case conference or motion or other means such as further negotiation.
[10] The local bar has been reminded many times of the importance of the provision to the administration of justice. Non compliance is, in my view, the most common reason pre-trials are not productive and trials are either adjourned, interrupted, or exceed their time estimates to the detriment of all.
[11] The principal lawyers involved in this action are well familiar with the problem. They argued a motion before me in September 2017. Rule 53.03(2.2) had not been complied with. At para. 21 of my endorsement I wrote:
Argument was interactive. [The lawyers] are experienced and well-respected counsel. As usual, their submissions were helpful. They fairly acknowledged a failing which is, sadly to me, commonplace at least in this jurisdiction and I strongly suspect, elsewhere in Ontario.
[12] History should not have repeated itself. Unfortunately, it did. Members of the local bar and their agents have been repeatedly told that civil pre-trial and trial dates are assigned based on the court’s understanding they have complied with the sub-rule. If they have not done so, the matter should be traversed to the next monthly assignment court date so that the deficiency can be remedied. If satisfied an agreed schedule is on the eve of being in hand, dates may be assigned on terms. That is the only exception.
[13] In this case, pre-trial and trial dates were assigned based on a mistaken understanding on the part of the court. A schedule was not in place in August 2019. It was not imminent. In fact, no effort had even been made by either side to negotiate one. Dates were assigned in error. Consequently, they were vacated.
[14] In an effort to move the matters along expeditiously, my initial endorsement contained terms with respect to the development of a schedule for the delivery of expert reports, addressing any area of disagreement and the scheduling of new pre-trial and trial dates in short order.
[15] Counsel for the plaintiff asked that I determine whether the plaintiff was obligated to attend to meet the psychologist and/or psychiatrist the defendant had proposed. I declined to do so. As noted, the parties had made no effort to comply with rule 53.03(2.2). Their failing was acknowledged when raised during argument. It was not disclosed in the written material. Counsel must satisfy the obligation the rules impose. They cannot simply delegate the task to the court. Judicial involvement in this issue is premature.
C. The Questionnaire and Consent Issue
[16] As mentioned, the plaintiff refused to sign any questionnaire or consent. Her counsel relied on decisions of Valin J. in Chapell v. Marshall Estate, [2001] O.J. No. 3009 (S.C.J.) (“Chapell”) and Tanguay v. Brouse, [2002] O.J. No. 4711 (S.C.J.) (“Tanguay”).
[17] In Chapell, the court refused to require the plaintiff to sign the authorization form requested by one of the doctors the defendant had retained. At paras. 21-23, the motion judge reasoned:
…There is no requirement in s. 105 of the Courts of Justice Act or in Rule 33…requiring an injured plaintiff to sign an authorization, consent or agreement when attending a defence medical examination…
There appears to be a misunderstanding of the role of the examining doctor or other health practitioner. In conducting a defence medical examination, a doctor or other health professional is not operating within the bounds of the traditional doctor-patient relationship where the doctor has been engaged by the patient whose trust and confidence in the doctor are essential to the relationship. Instead, the defence medical examination takes place in the context of an ongoing legal dispute where the examinee’s adversary has retained the examining health practitioner. The examining health practitioner is not subject to the usual confidentiality requirements which are essential to the doctor-patient relationship. Indeed, the examining health practitioner’s very purpose is to report…findings to the examinee’s adversary: Bellamy v. Johnson… per Doherty J.A. at p. 598.
In my view, the answer to this issue lies in those observations of Doherty J.A. I therefore conclude that the plaintiff is not required to sign any authorization, consent or agreement presented …by a health practitioner who undertakes to conduct an examination…under s. 105 of the Act.
[18] Unsurprisingly, Valin J. reached the same conclusion in Tanguay but extended it to include a document entitled “Background Information”. While the reasoning largely mirrors that in Chapell, the motion judge added a noteworthy observation at para. 20 when he wrote:
I am of the view that s. 105 of the Courts of Justice Act and Rule 33 contain a complete code and procedure for court ordered medical examinations in Ontario.
[19] The plaintiff urges a disposition that accords with that in Chapell and Tanguay. I declined the invitation for these reasons.
[20] I deal first with the questionnaire. Assuming, without knowing for certain, that the document entitled “Background Information” falls into that category of document, the decision in Tanguay is patently and seriously flawed. It fails to refer to, let alone analyze, s. 105(5) of the Courts of Justice Act which was then and still is, in force. It reads:
Where an order is made under this section, the party examined shall answer the questions of the examining health practitioner relevant to the examination and the answers given are admissible in evidence.
[21] That subsection is clearly worded and dispositive. It imposes an obligation to provide information to the extent “relevant to the examination”. Counsel for the plaintiff suggested the section should be read in a way that requires an oral interview, rather than a written questionnaire. No authority was cited. No rationale for such a limitation was advanced. I can think of several reasons why the plaintiff’s submission should be rejected: savings of time and cost, reliability of a written record are among those that come immediately to mind. All are important but the latter particularly so since the answers given by the party being examined are, as noted, “admissible in evidence.”
[22] Conceptually, therefore, the plaintiff cannot simply refuse to complete any portion of a questionnaire provided by a health practitioner referred to in s. 105 of the Courts of Justice Act. However, if a question is not “relevant to the examination”, it may, of course, be refused subject, presumably, to a ruling thereafter on the propriety of the objection. I make no comment concerning the specific questionnaire included in the moving party’s supplementary motion record as neither party’s material asked the court to consider or rule on any particular question.
[23] That brings me to the question of a consent. In my view, Chapell and Tanguay must be read with caution. I say that principally because the cases cannot stand for the proposition that s. 105 of the Courts of Justice Act and rule 33 of the Rules of Civil Procedure combine to create a complete code. The motion judge in that case relied, appropriately, on the Court of Appeal decision in Bellamy v. Johnson (1992), 8 O.R. (3d) 591 (ON CA) (“Bellamy”).
[24] In Bellamy the plaintiff wished to record the physical examination that was to be conducted pursuant to an order made under the statutory provision and procedural rule referenced in the preceding paragraph. The issue of the court’s jurisdiction to make such an order was specifically addressed. Writing for the majority of the court, Brooke J.A. said in part at pp. 593-594:
In my view, the master had the jurisdiction to make the order. If there is a right to tape-record one’s conversations that right is subject to the provisions of the Courts of Justice Act, the Rules of Civil Procedure, and the inherent jurisdiction of the court to control the discovery process. By virtue of the statute and the rules, the plaintiff is obliged to answer any relevant questions asked by the examiner…But the section and the rules are silent as to how the examination will be conducted. I think it is contemplated that the examination will be carried out in the fashion that, in the judgment of the doctor, best facilitates the examination.
[25] In separate concurring reasons Doherty J.A. wrote at p. 595:
I agree…that a party undergoing a medical examination pursuant to s. 105 of the Courts of Justice Act… has no right to record the conversations which occur during the examination. I also agree with my colleague that the court, as part of its obligation to supervise the discovery process, may in an appropriate case permit the recording of those conversations.
[26] Bellamy was considered at length by a five-member panel of the Court of Appeal in Adams v. Cook, 2010 ONCA 293. The principles I have mentioned were untouched.
[27] In fairness, counsel for Ms. Coll acknowledged in oral argument that the court had jurisdiction to require the plaintiff to sign a consent in relation to an examination by a health practitioner. Given that concession, it is difficult to see what application Chapell and Tanguay have. The reasons of the motion judge do not seem to demonstrate appreciation of the principle that the court has “the inherent jurisdiction…to control the discovery process”. The question in Chapell and Tanguay was not whether the court could make the order sought but rather whether it should.
[28] Ms. Coll argued that the motion judge’s decision was consistent with that principle. His refusal in those cases to compel the party being examined to execute documents requested by the health practitioner was tied to the fact the relationship was not a traditional one.
[29] I agree that the distinction was an important one to Valin J. However, it is not self-evident to me why that obvious fact should lead to the result the plaintiff advocates. This case illustrates the point. The defendant included the form of consent utilized by the health practitioners he wishes to use. It is specifically tailored to the situation at hand. It contains:
a) Acknowledgement of the fact the health practitioner will not be acting as Ms. Coll’s treating physician or health care provider;
b) Acknowledgement of the purpose of the assessment;
c) Acknowledgement of the information the assessor will receive and how it may be used;
d) Agreement to submit to the examination while preserving Ms. Coll’s right to decline to perform tests she feels “might cause injury or excessive pain”; and
e) Acknowledges the fact the assessor will prepare a report and send it to Ms. Robertson’s lawyers.
[30] While not asked to make any ruling concerning its contents, I do not understand why a health practitioner should be expected to conduct an assessment, even if court ordered for the purpose of ongoing litigation, without the comfort of a document of the kind I have just mentioned. The applicable statutory provision and procedural rule are not all encompassing. There is a myriad of practical details that are not addressed. The suggestion an expert retained to provide a rule 53 report should be satisfied with the court’s bare bones order or the parties’ consent defies, with respect, common sense.
[31] In oral argument, plaintiff’s counsel said the proposed assessments would be “intrusive”. I agree. However, Ms. Coll has commenced an action seeking a significant amount of money. The nature and extent of her injuries and their past, current and future effects are in issue. Her lawyers have served expert reports of their own. She was assessed by the authors of those reports beforehand. While admittedly not in evidence, I strongly suspect, similar documents were requested by and provided to health practitioners retained by the plaintiff’s lawyers. [1] In any event, it is entirely appropriate to document the parameters of the relationship of persons involved in an “intrusive” examination – whether as examiner or patient. In fact, I would go further and say it is essential that same be reduced to writing. Doing so serves the parties. It serves the health practitioner. It assists in the litigation process and therefore promotes the administration of justice.
[32] On two occasions, Ms. Coll’s solicitors declined the request that Ms. Coll execute documents requested by the health practitioners proposed by the moving party. No explanation was given. [2] There is nothing in the factual record before me that provides any reason for the plaintiff’s refusal to complete a questionnaire or execute a consent. Based on the material filed, the plaintiff places complete reliance on the decisions in Chapell or Tanguay. In my respectful view, those cases do not establish any legal principle that governs this part of the parties’ dispute.
[33] For the reasons given, Ms. Coll must complete a questionnaire and execute a consent if requested by a health practitioner conducting an examination under s. 105 of the Courts of Justice Act and rule 33 of the Rules of Civil Procedure. As noted, the court was not asked to approve a particular form and has no desire to micromanage the process. However, the rights of the parties to seek relief in relation to a dispute involving a specific provision or provisions is, of course, unaffected by this endorsement.
D. Conclusion
[34] My endorsements dispose of paras. (e), (f) and (g) of the amended notice of motion. The relief sought in (a) was not pursued. Consideration of the orders sought in paras. (b) through (d) is premature given the failure of the parties’ counsel to comply with rule 53.03(2.2). Those aspects of the motion are adjourned sine die returnable on five days’ notice.
[35] Costs of the motion insofar as subparagraph (e) of the amended notice of motion only is concerned are reserved. Short submissions not exceeding three typed pages may be provided by the moving party by the close of business on February 3 and by the plaintiff on February 17, 2020.
“Justice A.D. Grace” Grace J. Released: January 20, 2020