ONTARIO SUPERIOR COURT OF JUSTICE

BARRIE COURT FILE NO.: 09-0372
DATE: 20120403

BETWEEN:

CHRISTOPHER WALSH Plaintiff – and – DAVID CRAIG NEWLAND Defendant

M. Lemieux, for the Plaintiff
S. Cain, for the Defendant

HEARD: April 3, 2012

M.P. EBERHARD

[ 1 ] The Defendant seeks an order that the Plaintiff attend a defence medical April 26 2012 which would make impossible the pre-trial scheduled for April 23, 2012 and the scheduled trial in the May 2012 sittings.

[ 2 ] Counsel took the trouble to fix a motion date and argue fully an issue many times addressed less formally in the regular Trial Scheduling Court occurring monthly. I therefore take the trouble to rule more formally than is many times expected.

[ 3 ] Both provide facta setting out the criteria for granting or refusing a second/further defence medical, particularly in circumstances of an assessment subsequent to the independent medical contemplated as of right in Rule 33; in circumstances where there is dispute about the expert proposed to perform the assessment; and in circumstances that delay scheduled trial dates.

[ 4 ] The basic test is:

a)Whether the moving party established a need for the further examination;

b) Any new symptoms or complaints or a change in the landscape of the case as a result of a new medical report from the plaintiff. This is often used as a basis to justify a further defence medical examination; and

c) The overriding test of fairness and both sides having the abilitv to nut the best evidence before the court at trial. [1]

[ 5 ] Nuanced discussion is cited by both counsel in Bonello v Taylor : [2]

16 Although the determination of whether to order a second or further examination by a health practitioner must turn on the specific facts and equities of a case, a body of case-law has developed around when a second or further examination may be ordered under Courts of Justice Act s. 105 and Rule 33. The leading principles can be summarized as follows:

(i) The party seeking the order for a further examination must demonstrate that the assessment is warranted and legitimate, and not made with a view to delaying trial, causing prejudice to the other party, or simply corroborating an existing medical opinion;

(ii) A request may be legitimate where there is evidence that (i) the party’s condition has changed or deteriorated since the date of a previous examination, (ii) a more current assessment of the plaintiffs condition is required for trial, (iii) the plaintiff served specialist reports from new assessors after the defendants had conducted their medical assessments, or (iv) some of the party’s injuries fall outside the expertise of the first examining health practitioner;

(iii) Some cases take the view that the need for a “matching report” – ie. a report from a defence expert witness in the same specialty as a plaintiffs expert – is not, in and of itself a sufficient reason to order a further defence medical. In the circumstances of the present case I need not wade deeply into that question. That said, I would venture that trial fairness should operate as the guiding principle in this area, so 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 loathe to deny the defence a fair opportunity to respond with expert evidence from the same specialty based on an assessment of the plaintiff. Ordering further examinations may be just where they are necessary to enable the defendant fairly to investigate and call reasonable responding evidence at trial;

(iv) Where the request is for the examination of the plaintiff by a person who is not a health practitioner, such as a rehabilitation expert, the defendant must demonstrate that the proposed examination is necessary as a diagnostic aid to the health practitioner who is conducting the defence medical examination;

(v) A request for a second examination must be supported by sufficient evidence to persuade a court of the need for the further examination. What constitutes sufficient evidence will vary from case to case. Some cases have suggested that need must be established by filing medical evidence, such as an affidavit from the first examining physician recommending a further examination by a health practitioner competent in another specialty. In other instances an affidavit from a lawyer or law clerk attaching medical reports has been utilized by the court. But, at the end of the day, determining whether the nature of the evidence filed is sufficient remains essentially an exercise of judicial discretion;

(vi) While fairness, or “creating a level playing field”, may constitute a legitimate reason for ordering a second examination, someone with knowledge of the evidence in the case must provide evidence of unfairness for the court to consider; and,

(vii) A court should consider the request for a further examination would impose an undue burden on the plaintiff in light of the number of examinations already conducted of her by the defence.

[ 6 ] Essentially there is no dispute about the nature of the consideration. Each side has argued valid considerations. The decision is characterized as discretionary which means essentially that the decision maker is tasked with an evaluation of fairness.

[ 7 ] Commentators will oftimes cite an individual legal principle and express astonishment that an obvious decision was not easily rendered.

[ 8 ] That view ignores a reality that very often many legal principles are at play in a decision each suggesting a different result.

[ 9 ] The art of judgment, especially in matters of discretion as to what is fair, is to strike the right balance between the competing principles; to discern which principle should dominate in the particular circumstances of the case; and, in the assessment of prejudice, to recognize damage that cannot be undone.

[ 10 ] In the present circumstance, the Plaintiff claims damages for injury and conditions arising from a pedestrian/motor vehicle accident in November 2007.

[ 11 ] The Plaintiff suffers from Bell’s Palsy. The development of that condition can be impacted by many factors including stress. One of the results of a motor vehicle accident can be stress. There are a host of other factors that may, absent any stress in the nature of a motor vehicle accident, impact the development of the condition.

[ 12 ] In 2010 the Plaintiff was assessed by his neurologist Dr. Rathbone. A few weeks later, before the report from the Plaintiff’s doctor could have been made available, the Plaintiff was examined by internist/neurologist/psychiatrist Dr. Berry as the Defendant’s independent medical. Dr. Berry noted the droopiness associated with Bell's Palsy, thus demonstrating that his assessment included a physical as well as psychiatric component.

[ 13 ] No limiting instructions constricted the medical opinions. Dr. Berry did not assess the palsy issue. Dr. Rathbone opined that the Bell's Palsy was brought on by the stress associated with the motor vehicle accident.

[ 14 ] Through inadvertence, Dr. Rathbone’s report was not served until February 9, 2012 though it was dated June 2010.

[ 15 ] This was received after a second report from Dr. Berry date October 12, 2011 and served December 2011 which did not avert to a Bell's Palsy issue.

[ 16 ] Upon seeing the Dr. Rathbone report, Defendant’s counsel acted immediately to arrange an assessment of the Bell's Palsy issue by Dr. Sawa, another neurologist, on March 29, 2012. This was refused and the next available date is April 26, 2012,

[ 17 ] There was nothing to put the assertion that Bell's Palsy was related to the motor vehicle accident in issue, thereby triggering Dr. Berry addressing it in his first or second report, except a reference in a vocational evaluation June 2011 by Bill Kobzey who, in reviewing the various diagnoses set out in the various medical reports, he listed as #9 of the “Conditions arising out of the accident” from Dr. Rathbone’s report “Bell’s Palsy secondary to the onset of shingles resulting from increasing post-accident stress.”

[ 18 ] The defence orthopaedic expert, Dr. Lloyd picked up on this reference only to state in a letter dated September 28, 2011 responding to the inquiry of counsel regarding the Kobzey vocational assessment report, the connection was “inconsistent with the known pathology”. His comment is not material as to its substance but the fact of the comment demonstrates that the issue of Bell's Palsy had by then been noted.

[ 19 ] The real conundrum is that until service of the Dr. Rathbone report in February of 2012, it could not be known that the Plaintiff intended to assert that his Bell's Palsy was a result of the motor vehicle accident.

[ 20 ] There is no evidence that Dr. Berry’s expertise is not wide enough to address this factor. Nor is there evidence he is unavailable to comment, nor that he would need to see the Plaintiff to assess him as Dr. Sawa has stated he would find necessary. The Plaintiff argues that the onus is on the Defendant to show that assessment by a second expert neurologist is “warranted”.

[ 21 ] The Plaintiff counters with cases supporting the principle that there should be no limitation on the choice of expert. [3] Once they have demonstrated, as they have, that Dr. Sawa is an expert who is able to provide opinion evidence on Bell's Palsy they should be permitted the expert of their choice.

[ 22 ] The Plaintiff argues that delay is prejudicial. This court is very aware that justice delayed is justice denied and emphatically projects effort to move languishing litigation towards the courtroom door, evidenced by monthly Trial Scheduling Courts where excuses for slow progress are scrutinized. It is preaching to the choir to argue that plaintiffs claiming injury should not be delayed in finalizing their cases without very good reason.

[ 23 ] In the present case that inherent prejudice in delay exists, but in the considerable effort before me today to argue against adjourning the trial, it was curious that the no particular circumstances of prejudice were argued.

[ 24 ] So, all that said, what is fair?

[ 25 ] Both sides make compelling argument on principle. I am left with this:

[ 26 ] The Defendant had no reason to know that Bell's Palsy as a result of the motor vehicle accident was at issue until they were served with the Dr. Rathbone report. While the failure to serve the report was inadvertent, that is not always so. Expert reports that are not intended to be relied on might never be served. The Defendant is not expected to intuit what causal connections for medical conditions are at issue. Now, the Defendant finds itself unprepared to meet this assertion. I can find nothing remiss in their preparation that put them in this deficit.

[ 27 ] I make no disapproving comment on the failure to serve. It is simply a fact. Having put the Bell's Palsy in issue so late in the progress toward trial, the Plaintiff cannot expect to advance when the other side is caught off guard.

[ 28 ] Once that is said, the corollary points become rather unimportant. The Defendant must have opportunity to assess the Bell's Palsy. This cannot occur in the short time between now and trial because expectations on the expert and his reporting cannot be so tightly curtailed.

[ 29 ] Dr. Sawa is the Defendant’s choice of expert. He does share a professional designation with Dr. Berry. He is being asked to assess Bell's Palsy. I expressed my concern to counsel that this was not to be a free ranging assessment to double up on the opinions already advanced by Dr. Berry. I recognized that, as a non-expert, I cannot predict how much overlap there must necessarily be for Dr. Sawa to comment on the Bell's Palsy issue, but leave that to a Trial Judge who can assess whether this second neurological examination is presented to unfairly expand opinions giving no opportunity for the Plaintiff to answer. Competing reports could go on and on. That is not a result to be encouraged.

[ 30 ] The Defendant’s motion for a defence assessment of Bell's Palsy by Dr. Sawa is granted. This necessitates the adjournment of pre-trial and trial.

Eberhard J.

Released: April 3, 2012

[1] McRae v. Dreuniok , 2007 CarswellOnt 5464 ; Tilson v. Economical Mutual Insurance Co , 1999 CarswellOnt 3516 ; Abdul-Nabi v. Wawanesa Mutual Insurance Co ., 1999 CarswellOnt 3297 ; Bernier v. Assan , 2006 CarswellOnt 3054 ,

[2] Bonello v Taylor 2010 ONSC 5723 , [2010] O.J.No. 4432

[3] Scott v McNight 2010 CarswellOnt 1107