Court File and Parties
Court File No.: 149/18 Date: 2022-01-04 Superior Court of Justice - Ontario
Re: Tammy Lynn Moore, Plaintiff And: A-Christine Jacob and Richard Jacob, Defendants
Before: Heeney J.
Counsel: Anna Szczurko, counsel, for the Plaintiff David Strangio, counsel for the Defendants
Heard: October 15, 2021 by videoconference
Endorsement
[1] In this motion the defendants seek an order to compel the plaintiff to attend two Independent Medical Examinations (“IMEs”), one with a neuropsychologist Dr. Sarah Mitchell, and one with an orthopaedic surgeon Dr. Paul Marks.
[2] The action arises from a motor vehicle accident that occurred on March 3, 2017. The plaintiff has served only one expert report, from a physiatrist Dr. Macaluso. He diagnosed the plaintiff with both physical injuries as well as a “mild acquired brain injury/post-concussive syndrome”.
[3] The action was set down for trial by the plaintiff on December 16, 2020. It was then spoken to at Assignment Court on January 28, 2021. Prior to that attendance, the parties agreed to a timetable for the service of expert reports. The plaintiff agreed to serve her reports by July 25, 2021. These were “anticipated to include the physiatry report of Dr. Macaluso (already served); Economic Loss; and Future Care Cost”. The defendants agreed to serve their reports by September 25, 2021. They were “anticipated to include: Physiatry or Orthopaedic; Economic Loss; and Future Care Cost”.
[4] At Assignment Court, a pre-trial was scheduled for November 25, 2021. That pre-trial has since been postponed pending a decision on this motion. A trial date was not set at Assignment Court, but given the backlog caused by the pandemic the Trial Coordinator advises that this case could not be tried until the fall of 2022 at the earliest.
[5] By email dated May 20, 2021, counsel for the defendants requested the plaintiff to attend two IMEs, one with Dr. Mitchell on July 6, 2021, and one with Dr. Marks on September 25, 2021. There followed an exchange of several emails between counsel in which counsel for the plaintiff raised a number of objections to this request, which included taking the position that two experts, neither of whom is a physiatrist, are not required to respond to the single report of Dr. Macaluso, such that the plaintiff was prepared to attend one IME only. Counsel for the plaintiff also demanded a number of conditions to the plaintiff’s attendance at a single IME, which will be discussed below. Ultimately, the plaintiff did not attend the July 6 appointment, and a cancellation fee of $2,825 was charged. The defendants seek reimbursement of that amount in this motion.
[6] The defendants then brought this motion to compel the plaintiff’s attendance at both IMEs, although new appointment dates would obviously need to be set.
[7] The first issue to be determined is whether the defendants should be granted leave to bring this motion. The defendants concede that leave is required by virtue of Rule 48.04(1) of the Rules of Civil Procedure (presumably since they consented to the action being placed on a trial list (although a trial date has yet to be assigned). Generally speaking, the weight of authority is that a substantial or unexpected change in circumstances must be shown for leave to be granted. Leave may also be granted where it is in the interests of justice to do so.
[8] In my view, both factors are present here. It is clear that the matter was placed on a trial list in the context of the timetable that had been agreed to. That timetable clearly contemplated that the defendants would be serving expert reports, which would “include” one from either an orthopaedic surgeon or a physiatrist. It follows that the parties contemplated that the plaintiff would be attending at least one IME, which is a form of discovery, even though the matter had already been placed on a trial list. Since this list was inclusive but not exhaustive, it is open to the defendants to argue that they are not precluded from obtaining more than one report from a medical specialist. The fact that the plaintiff has since refused to attend any IMEs is a clear and unexpected change in circumstances.
[9] The defendants’ request for the first IME was made on a timely basis. It proposed July 6, 2021, which fits with a deadline of September 25, 2021 for service of the expert report flowing from that IME, as agreed to in the timetable. The same cannot be said, though, for the second IME, which proposed that Dr. Marks’ examination take place on September 25, 2021, the same date that his report was to have been served.
[10] Importantly, granting leave to bring this motion, and ordering the plaintiff to submit to one or more IMEs, will not put in jeopardy any trial date, since one has yet to be set. When it is set it will be far enough in the future to allow ample time for the completion of the examinations and the service of reports.
[11] I am satisfied that it is in the interests of justice to grant leave to the defendants to bring this motion to compel the plaintiff to attend an IME, and to determine whether more than one IME will be permitted. Leave to bring this motion is, therefore, granted.
[12] Moving to the merits of the motion, IMEs are provided for by s. 105(2) of the Courts of Justice Act, R.S.O. 1990, Chap. C.43, as follows:
(2) Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.
[13] Rule 33.02(2) of the Rules of Civil Procedure empowers the court to order a second or further examination on such terms as are just.
[14] The plaintiff concedes that defendants have a prima facie right to the first IME, but argues that it should nevertheless be refused because the request was not timely. I have already ruled that the request was timely, in the context of the timetable that had been agreed to by the parties. While the appointment with Dr. Marks was set for the very day his report would have been due to be served, it is still objectively reasonable given that the matter will not be tried until the fall of 2022 at the earliest.
[15] The real issue is whether one IME should be ordered or two. Counsel for the plaintiff, in oral argument, took the position that the plaintiff would be willing to submit to one IME by one specialist or the other, but not both.
[16] The purpose of defence medical examinations is explained by Master Pope in Godin v. Goncalves, 2014 ONSC 7297, at para. 24:
The purpose of defence medical examinations is to put the parties on equal footing by allowing the defendant to meet the case advanced by the plaintiff and to respond to the allegations made by the plaintiff in the statement of claim: see Girao v. Cunningham, 2010 ONSC 4607, [2010] O.J. No. 3642 (Ont. Master), at para. 18, citing Chapell v. Marshall Estate, [2001] O.J. No. 3009 (Ont. S.C.J.).
[17] Here, the case the defendants have to meet, insofar as the injuries allegedly suffered by the plaintiff are concerned, can be summarized by quoting from pg. 10 of Dr. Macaluso’s report of September 14, 2020:
Tammy Moore is a 53-year-old right hand dominant female who was involved in a motor vehicle collision on March 3, 2017. The mechanism of injury resulted in a combination of a whiplash associated disorder type 2 with secondary developing of myofascial pain, as well as an acquired brain injury with quite profound impacts both mentally, psychologically and physically including post-traumatic headaches, impacts on mood and anxiety as well as ongoing issues with cognition, attention, balance and visual tracking.
[18] The plaintiff alleges, therefore, that she suffered both physical injuries, as well as mental and psychological injuries. The defendants wish to have the physical injuries assessed by an orthopaedic surgeon and the mental/psychological injuries assessed by a neuropsychologist.
[19] In Girao v. Cunningham, 2010 ONSC 4607 at paras. 23-24, Master Short reviewed the following caselaw that is relevant to the issue under consideration:
In Jimenez v. Roberston, [1994] CarswellOnt 2625 (Ont. Gen. Div.), Justice Haines, when considering whether the plaintiff ought to be required to attend more than one defence medical, noted at paragraph 8:
It appears clear from the case law that where both the physical and mental condition of the plaintiff are in question the defendant should, subject always to reason and good sense, have the opportunity to have the plaintiff assess both aspects of the plaintiffs condition and s. 105(2) clearly contemplates examinations by more than one health practitioner when required.
More recently, in Mader v. Hunter, [2006] CarswellOnt 266, the plaintiff was ordered to attend two defence medical assessments on the basis that the plaintiff was relying on reports by a physiatrist and two psychologists. Master Sproat commented:
In this case the defence would be put in an unfair position without at least one expert to address physical issues and a different expert to address mental issues. It is the plaintiff that has put both her physical and mental health in issue.
[20] These cases make it clear that it is the nature of the plaintiff’s injuries that determine the entitlement of the defendant to seek a response from appropriate experts. Where both physical and mental issues are raised by the plaintiff, the defendant should be entitled to retain an expert to respond to each issue.
[21] The plaintiff argues that they are relying solely on the report of Dr. Macalcuso, who is a physiatrist, in support of their case, and the defendants could similarly retain a physiatrist of their own to respond. However, it is not open to the plaintiff, or to this court for that matter, to dictate to the defendants how they are to present their case. The comments of Gillese J. (as she then was) in Tsegay v. McGuire, [2000] O.J. No. 1557, 2000 CarswellOnt 1451 (S.C.J.) at para. 5 are apt:
Medical reports are critical to the resolution of personal injury disputes. The choice of physician to conduct the defence medical examination is a matter of importance to the defence. Medical reports contribute to settlements and constitute the crucial expert evidence on which a court relies to do justice between the parties, if the matter proceeds to trial. The policy behind the defence medical exam is to uphold the right of the defendant to conduct his or her defence and to assist the court at trial by furnishing expert evidence that is subject to the adversarial process.
[22] While this particular physiatrist, Dr. Macaluso, due to the nature of his practice, may well be qualified to comment on both physical and mental injuries, there is merit to the defendants’ argument that a neuropsychologist may, in general, be more qualified than a physiatrist to opine on a brain injury, and its impact on cognition and other effects of a post-head injury syndrome. There is no justification for refusing to allow the defendants to choose the expert that, in their view, is the most qualified to provide the necessary evidence, simply because the plaintiff has chosen an expert from a different area of expertise.
[23] As to the physical component of the plaintiff’s injuries, the defendants have chosen Dr. Marks, who is an orthopaedic surgeon, to do the IME. However, he is not qualified to deal with the neurological component of the plaintiff’s injuries. To fill that gap, the defendants have chosen Dr. Mitchell to assess the mental component of the plaintiff’s injuries. She is a cognitive and behavioural neurologist with training in neuropsychiatry, with a special interest in brain injury. She is able to opine on all neurological related diagnoses, including concussion or other brain injuries, but cannot opine on musculoskeletal injures as this is outside the scope of her expertise.
[24] I am of the view that the defendants are entitled to have each distinct aspect of the plaintiffs alleged injuries assessed by a specialist who is qualified to do so.
[25] During argument, counsel for the plaintiff indicated that if I were disposed to order that the plaintiff must submit to a neuropsychological assessment, that it might be “helpful” to obtain her own neuropsychological assessment first, and have the expert for the defence respond to it. Counsel for the defendants agreed with this approach.
[26] Accordingly, an order will go that the plaintiff shall undergo an IME by Dr. Marks, on a date to be agreed upon by counsel, and his report shall be served within 60 days thereafter. The plaintiff will obtain her own neuropsychological assessment as soon as it can be arranged, and shall serve that report on counsel for the defendants within 60 days thereafter. The defendants shall be entitled to have the plaintiff undergo a further IME by Dr. Mitchell on a date to be agreed upon by counsel, for the purpose of responding to the plaintiff’s report.
[27] The next series of issues relate to the conditions that attach to the IMEs. It was these conditions that helped to derail the appointments arranged by counsel for the defendants in the first place.
[28] The plaintiff first demanded that the IME not be videotaped or audio-recorded. The defendants agreed to this term, so an order is not necessary.
[29] The plaintiff next demanded that the assessors not use a questionnaire or, alternatively, that any questionnaires used be provided to plaintiff’s counsel in advance of the IME. Counsel for the defendants did not agree to this term.
[30] In my view, a complete answer to the question whether an assessor may use a questionnaire during the course of an IME, can be found in the decision of Grace J. in Coll v. Robertson, 2020 ONSC 383, at paras. 20-22. He began by quoting s. 105(5) of the Courts of Justice Act, which reads as follows:
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.
[31] He then commented as follows:
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."
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.
[32] I agree with the comments of Grace J. The plaintiff has a statutory obligation to answer the questions posed by the assessor, be they oral or written. If any question is later thought to be improper, the plaintiff could move at trial to exclude this evidence. In the event the plaintiff refuses to answer any question, the matter could be resolved by a motion under Rule 33.03 of the Rules of Civil Procedure.
[33] In para. 58 of the plaintiff’s factum, it was suggested that Grace J. agreed, at para. 33 of his decision, that plaintiff’s counsel should have the opportunity to review the questionnaire in advance. I do not read that paragraph as saying any such thing. At para. 33 Grace J. stated the following:
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.
[34] As is obvious from reading this paragraph, it says nothing about plaintiff’s counsel having the right to vet the questionnaire in advance. It simply says that the court was not asked, nor was it inclined, to do so.
[35] Coll v. Robertson establishes an equivalency between oral and written questioning. It follows that if plaintiff’s counsel is entitled to have a questionnaire in advance so it can be reviewed by counsel, one could equally argue that plaintiff’s counsel is entitled to be provided in advance with a list of questions that the assessor proposes to ask orally during the course of the assessment. It need hardly be said that this would be an untenable suggestion. Quite apart from the practical problems posed, such an approach opens up the possibility of the plaintiff being coached by counsel in advance as to how to respond to questions asked, as opposed to responding spontaneously.
[36] Accordingly, I decline to impose any condition on the use of a questionnaire.
[37] The next condition demanded by counsel for the plaintiff was that the expert report be drafted solely and entirely by the examining assessor, and that the research, medical record review and drafting of the report be conducted solely and entirely by the assessor. In short, the plaintiff wanted to preclude “ghostwriting”.
[38] Rule 33.06(1) of the Rules of Civil Procedure governs the contents of an expert’s report. It provides as follows:
33.06 (1) After conducting an examination, the examining health practitioner shall prepare a written report setting out his or her observations, the results of any tests made and his or her conclusions, diagnosis and prognosis and shall forthwith provide the report to the party who obtained the order.
[39] This rule has been interpreted to preclude ghostwriting, where the report is written partly by others: see Kushnir v. Macari, 2017 ONSC 307 at para. 38. To demand of defendants’ counsel that ghostwriting not be used is tantamount to demanding that they comply with the Rules. Such a condition is unnecessary, and I decline to order it.
[40] The final issue to be resolved relates to the cancellation fee. The plaintiff points out that the appointment with Dr. Mitchell was set up by defendants’ counsel without securing the consent of the plaintiff. The plaintiff relies on Armocida v. Sanelli, [2003] O.J. No. 3199 (S.C.J.), which stands for the proposition that unless there is a court order for an IME, or the written consent of the plaintiff, the plaintiff cannot be held liable for the cancellation fee in the event of his or her non-attendance. Master Dash said the following, at paras. 12-13:
A defendant in a tort action can only compel a plaintiff to attend a defence medical examination by virtue of section 105 of the Courts of Justice Act and Rule 33 of the Rules of Civil Procedure. To compel payment of cancellation fees from the plaintiffs, or to enforce other penalties for example under Rule 33.07 of the Rules of Civil Procedure, the examination must be properly constituted under those provisions. There are two methods provided thereunder for compelling attendance. The first method is by court order. Under section 105 where the physical or mental condition of a party is in question the court "may order" one or more examinations by health practitioners. In this case the defendants chose to fix a date for examination without court order.
A second method of compelling attendance at a defence medical examination is under Rule 33.08 of the Rules of Civil Procedure which provides that Rule 33 applies to a physical or mental examination "conducted on the consent in writing of the parties." There is good reason for requiring the consent in writing. This provides the parties, and the courts in the event of non-compliance, with proof that the plaintiffs had agreed that their health was in issue in the action, had agreed to an examination by the specific doctor, had agreed to the specific date and had agreed that it would be an examination equivalent to an examination ordered under Rule 33 of the Rules of Civil Procedure. In this case the defendants did not obtain the plaintiffs' "written consent" to the examination. They did not even consult in advance with plaintiffs' counsel. They chose instead to unilaterally set up an examination and fix a date. By doing so they ran the risk that if the plaintiffs failed to attend they would have no recourse. Although they did ask plaintiffs' counsel to confirm in writing that the plaintiffs would be attending the examinations such written consent was never forthcoming. Although there is some evidence that an assistant of Mr. Suboch confirmed by telephone to the assistant of Mr. McCarthy that the plaintiffs would attend, this is not the written consent required by the rule. In the result in my view there is no authority to order payment of Dr. Ameis' cancellation fee and I decline to do so.
[41] The defendants did not address this issue in their factum, nor in oral argument. I agree with the comments of Master Dash, and decline to order the plaintiff to pay the cancellation fee.
[42] I encourage counsel to resolve the issue of costs. If they are unable to do so, I will accept brief written submissions from the defendants within 20 days, with the plaintiff’s brief response within 10 days thereafter, and any reply within 5 days thereafter. Failing that, the parties shall be deemed to have resolved the issue of costs between themselves.
Mr. Justice T. A. Heeney Date: January 4, 2022