Court File and Parties

COURT FILE NO.: 08-1621

DATE: 2012-06-25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Richard Long, a minor under the age of 18 years by his Litigation Guardian, Braden Long, Plaintiff

AND:

Dundee Resort Development LLC carrying on business as Arapahoe Basin Ski Area, The Ontario Alpine Ski Team, Alpine Ontario South, Ski Association, Canadian Ski Coaches Federation, ULIC Longford, Pat Johnson, Teejay Alderdice and Brad Eades, Defendants

BEFORE: The Honourable Mr. Justice M. Edwards

COUNSEL: William D. Keele, for the Plaintiff Graeme Mew, for the Defendants

HEARD: May 3, 2012

Endorsement

Overview

[1] It is common place in personal injury litigation for the plaintiff to be seen by a neuropsychologist where one of the injuries complained of is an injury to the brain. A neuropsychologist may conduct, amongst other things, various tests that will ultimately generate various documentation, which may include test data, test forms, test questions, test answers, raw test results and computerized results generated from test scores. For ease of reference I will refer to all of this documentation as the ("raw test data").

[2] The raw test data is generally considered to be documentation that cannot be understood without the benefit of the years of specialized training required to become a practicing neuropsychologist. In part because of the specialized training required to interpret the raw test data and also because of the inherently confidential nature of the raw test data, a practice developed within the personal injury Bar that allowed for the production of the raw test data between neuropsychologists retained by the parties but not directly to the lawyers themselves.

The Issue

[3] The motion before the court; in part, requires a determination of whether the aforesaid practice should continue or whether the raw test data of a neuropsychologist should be disclosed to counsel directly.

[4] The defendants, represented by Mr. Mew, requested that the plaintiff attend a defence medical examination with a Dr. McFadden. Dr. McFadden is a neuropsychologist. Counsel for the plaintiff was agreeable to the plaintiff attending the aforesaid defence medical with Dr. McFadden provided the raw test data of Dr. McFadden was produced directly to counsel as opposed to a neuropsychologist retained by the plaintiff's counsel. Dr. McFadden was not prepared to conduct a defence medical of the plaintiff if she was required to produce her raw test data to anyone whom she described as a "non psychologist".

The Facts

[5] The position taken by Dr. McFadden has its origins in a document entitled "Practice Guidelines for Providers of Psychological Services" hereinafter referred to as ("the Guidelines"). The Guidelines are published by the Canadian Psychological Association. In part the Guidelines provide:

Psychologists avoid releasing information that requires professional training for interpretation or analysis to persons who lack that training. When this information must or should be released, providers advise recipients about the limits to the usefulness or meaningfulness of the information.

[6] While a professional body like the Canadian Psychological Association may have various rules, or guidelines that assist in the orderly running of a professional body ultimately if those rules or guidelines come into conflict with the rule of law, the rule of law must prevail.

[7] In support of the position taken by Dr. McFadden the defendants submitted an affidavit of Dr. Duncan Day who is a licensed clinical psychologist. Dr. Day set forth in some detail the various reasons why the raw test data should only be released to another neuropsychologist as opposed to what he described as "non qualified test users".

[8] The position of Dr. Day can be best summarized from the following quotation from his affidavit:

…it is clearly and unequivocally contrary to the ethical principles and sound clinical practice for test data or test materials to be released by a psychologist to anyone – including the individual being assessed or his/her legal representative – except another licensed psychologist.

[9] Dr. Day goes on in his affidavit to suggest that a psychologist like Dr. McFadden who is confronted with a request for production of raw test data to a non psychologist puts someone like Dr. McFadden in the position of potentially violating a "serious professional and ethical" obligation not to disclose raw test data.

[10] Contrary to the position taken by Dr. Day in his affidavit, in his cross examination Dr. Day acknowledged the Guidelines in fact do contemplate the release of information that requires professional training to persons who lack that training. I do not read the affidavit of Dr. Day, nor do I read the Guidelines and Dr. Day's interpretation of the Guidelines, as creating an absolute prohibition on a psychologist from releasing the raw test data to non psychologists. I also take note of the fact that while there has been no prior decision of this court that interprets the Guidelines there have been a number of orders made by other judges and Masters allowing for the production of raw test data to non psychologists and specifically for production of the raw test data to counsel. In that regard support can be found in orders made by Masters Muir, McAfee, Short, Glustein, Graham, Brott and Justices Turnball, and Snowie. It would appear that many, although not all of the aforementioned orders, made by the aforementioned jurists were made either on consent or were not opposed. It is also worth noting that many, but not all, of the aforementioned orders had provisions requiring that the raw test data be destroyed immediately upon resolution of the action.

Position of the Plaintiff

[11] Counsel for the plaintiff suggests that the production of the raw test data is critical to Mr. McLeish's ability to prepare for trial. Specifically it is suggested that the production of the raw test data of Dr. McFadden will be important in preparation required by plaintiff's counsel to cross examine Dr. McFadden at trial. Mr. McLeish relies on Rule 31.06(3) in support of the proposition that the raw test data falls within the scope of disclosure required as part of an experts "findings and opinion". Support for this position is found in a decision of Master Dash in Suchan v. Casella, 2006 CanLII 20844 (Ont. S.C.J.) where Master Dash noted:

Raw test data as determined by all experts and used by them in formulating their opinions are clearly part of their findings and must be produced. Brown (Litigation Guardian of) v. Lavery, 2002 CanLII 49411 (ON SC), 58 O.R (3rd) 49 at page 58. Raw test data is particularly relevant in determining whether the plaintiff has demonstrated symptom consistent with brain injury.

[12] Having come to this determination Master Dash then ordered the production of the raw test data of various neuropsychologists. Master Dash did not, however, address the seminal issue before this court – that being to whom the raw test data should be disclosed ie: another psychologist or a non psychologist.

[13] If one accepts the raw test data does fall within the scope of an expert's findings and opinions one may then question what purpose is achieved by delaying the production of the raw test data until the trial of the action. If the raw test data is not disclosed until the expert has testified in chief the inevitable result likely will be an adjournment to allow the cross examining counsel to review the raw test data. The comments of Ferguson J. in Brown v. Lavery (supra) are particularly apropos to this question:

As noted in Stone if the issue is not dealt with until trial, the opposing counsel will then be entitled to an adjournment in order to review the material then produced. That could cause significant delay. In some cases it might take days for counsel to review the material. Counsel might also need time to review the material with its own expert. As noted in Binkle v. Lockhart, (supra), the experts of the various parties should all be on the same footing at trial by having access to the same background information. When the information is disclosed it might well affect counsels' assessment of the merits of the case and of the value of proceeding with the trial. Earlier production might have made the trial unnecessary. If the production only takes place at trial the cross examining counsel will not be in a position to succinctly use it in cross examination unless the material is minimal. It takes preparation to call information and consider whether or how to use it to test an expert's opinion. The trial is a time for examination and cross-examination not for production and preparation.

[14] The practical comments of Ferguson J. in Browne v. Lavery should, however, in my opinion, be looked at from the practical perspective that in this day and age where the vast majority of all civil cases are settled prior to trial one may question the advisability of interfering with the Guidelines under which neuropsychologists practice and question whether it is appropriate in all cases to order the production of the raw test data as a matter of course.

Position of the Defendant

[15] Mr. Mew on behalf of the defendant asks the court to apply the principle of proportionality and to draw a line between what is reasonable from a production perspective versus what may be considered excessive. In essence Mr. Mew's suggests that this court must engage in a balancing act balancing the interests of the professional judgment of the Canadian Psychological Association versus the interests of the parties in having full production of all relevant documentation.

The Law

[16] As previously noted the question of whether or not the raw test data of a neuropsychologist shall be disclosed to counsel directly or to a treating neuropsychologist or a neuropsychologist retained for the purposes of conducting a defence medical or a medical legal assessment has not been directly commented upon by this court. The Court of Appeal of New Brunswick did indirectly address this issue in Stone v. Sharpe, 2008 NCA 55. The New Brunswick Court of Appeal in part dealt with the question of the production of a psychologist's raw data records within the context of Rule 31.11 (3) of the New Brunswick Rules of Court. Rule 31.11(3) is similar to Rule 31.10 of the Ontario Rules of Civil Procedure in that it allows the Court to make an order directed to a stranger to the action to produce non privileged documents in the possession of the stranger where the document "relates to a material issue in the action" and "it would be inequitable to require the applicant to proceed at trial without having discovery of that document".

[17] The New Brunswick Court of Appeal ultimately required the production of the raw test data of the psychologist but did not deal directly with the issue of whether or not the raw test data should be disclosed to a non psychologist. By implication the order made by the New Brunswick Court of Appeal can be interpreted so as to provide that the raw test data would be disclosed to the moving party which by inference could include the lawyer for the moving party. The actual decision itself, however, does not deal specifically with the issue that is before this court.

[18] The specific issue that this court is called upon to decide was, however, dealt with in Catholic Children's Aid Society of Toronto v. W.(D.) a decision of the Ontario Corut of Justice where J.P. Nevins J. considered a production request of all information and documents in the possession or control of an assessing psychologist relating to the preparation of and the delivery of his assessment report. The requested documentation included any specific answers, marks, scores or results of any psychological tests administered within the context of Rule 19(11) of the Family Law Rules. A request for the documentation sought before Nevins J. was made specifically by counsel for the mother. As to the timing of the motion it came up at a trial management conference approximately three weeks prior to trial.

[19] It should be noted that in arriving at the ultimate decision that he did Nevins J. had the benefit of argument from counsel retained by the psychologist who undertook the psychological testing protocol of the mother. Counsel for the doctor argued that psychological tests that were conducted on the mother should not be delivered either to her or to her counsel but should only be delivered to the mother's registered psychologist and should not be disseminated to any lay persons or non psychologists. By implication the position of the psychologist would of course preclude production to counsel for the mother.

[20] It was also argued on behalf of the doctor that apart from the ethical obligations that the doctor felt required him to maintain the integrity of the testing protocol itself, the doctor also argued that he had a contractual obligation to preserve the confidentiality of the tests themselves and the various companies that developed those tests and held copyright on the tests.

[21] Counsel for the mother before Nevins J. while acknowledging that the interests described by the doctor were worthy of protection argued that these interests were not as compelling as the interests of his client in ensuring a fair trial. Counsel argued that the information ie: the raw test data was necessary for counsel to prepare for trial that clearly on the facts before Nevins J. was imminent. In dealing with the competing arguments between those of counsel getting ready for trial and the ethical and contractual obligations of the doctor, Nevins J. summarized the issues as follows:

To summarize as best I can, the issue and the legal issues in this motion are as follows. In this particular case there are two, if you will public interests at stake. First of all there is a public interest at stake. First of all, there is a public interest in encouraging that any and all relevant information and evidence is before any court when it is considering any case. That is even more important, in my opinion, when one considers the kind of case that we have before us here – namely a child protection case in which a government agency is requesting an order that will forever severe the relationship between a parent and her child. So, I would think, that in a case such as this, the public interest in making sure that the court has all the relevant information before is quite significant.

The second public interest playing in this type of case and in this motion before me is the one raised by the assessor, Dr. Amin, and that is an interest in maintaining the integrity and validity of, in general terms, the mental health testing process. I agree with counsel in their submissions in this regard that there is a public interest to be served in preserving this process, even though a great portion of the public may never have occasion to deal with this process.

[22] While the facts before Nevins J. are quite different from the case before this court, his analysis and approach is most helpful. To begin with Nevins J. rightly summarized the competing interests at play; those being the public interest of having all relevant evidence before the court versus the legitimate interests of psychologists in maintaining the integrity and validity of the mental health testing process together with the ethical obligations of psychologists. How to reconcile these two conflicting, competing interests was accomplished by Nevins J. with the application of the principle of fairness and guidance from the Court of Appeal in Attorney General of Ontario v. Stavro (1995) 1995 CanLII 3509 (ON CA), 26 O.R. (3rd) 39.

[23] In Stavro the Court of Appeal suggests that four considerations should be at play when considering whether a party should go to trial without production of a document from a non party. These considerations were as follows:

(a) The importance of the documents requested;

(b) Whether the production of the information at a discovery stage is necessary, as opposed to the production of the information at the trial stage;

(c) The position of the non party with respect to the production of the information;

(d) The availability of the documents or their informational equivalent from some other source that may be accessible to the moving parties.

[24] After weighing these four factors Nevins J. was of the view that the raw test data should be produced to counsel for the mother. Noteworthy is the fact that the request by counsel for the mother was essentially on the eve of trial together with the fact that the trial was going to proceed. Settlement was not an option.

[25] The facts before this court are somewhat different. This case is not at the trial stage. It is not even at the pre trial stage. While this court recognizes that in a case like this, trial preparation is ongoing from the moment that counsel is retained, the question still remains does Mr. McLeish need the raw test data now for trial?

[26] Plaintiff's counsel in his factum refers to Rule 30.10 of the Rules of Civil Procedure in support of his argument that the plaintiffs are entitled to production of the raw test data. It is noted that Rule 30.10 is similar in wording to Rule 19(11) of the Family Law Rules which rule is relied upon by Nevins J. in W.(D.) Rule 30.10 provides for a production order from a non party of documents within the possession of the non party that are not privileged where the court is satisfied that:

(a) The document is relevant to a material issue in the action; and

(b) It would be unfair to require the moving party to proceed to trial without having discovery of the document.

[27] There can be no doubt that the documents sought in this matter being the raw test data of Dr. McFadden who is conducting a defence medical of the plaintiff, are relevant to a material issue in the action; that being whether the plaintiff has suffered a brain injury and if so its severity. The real issue, however, is whether at this point in the proceedings it will be unfair to require the moving party to proceed to trial without production of the raw test data. As previously noted this matter is in no way comparable to the fact situation of W.(D.) given this case has not yet been set down for trial. Proportionality and fairness at this stage do not require the production of the raw test data directly to the plaintiff's counsel. The plaintiff will not be prejudiced at this stage in the proceedings in having the raw test data produced only to a neuropsychologist retained by plaintiff's counsel who would be in a position to then prepare a report and properly inform the plaintiff of any issues that might arise out of the production of the raw test data.

[28] The production of the raw test data at what is now essentially the discovery stage is not necessary as the raw test data produced to a doctor retained on behalf of the plaintiff more than suffices to ensure fairness between the parties. The position of the non party ie: Dr. McFadden is not a frivolous position and is one based on long standing concerns of maintaining the validity of the mental health testing process as well as the ethical concerns of the psychologists professional body. To require production of the raw test data in all cases at the discovery stage could ultimately defeat the legitimate concerns of psychologists in maintaining the integrity of the mental health testing process. As such the practice that has developed over many years as it relates to requests for production of raw test data shall continue ie: the raw test data may be exchanged between neuropsychologists retained by one side to the other.

[29] This does not however end the discussion on the production of the raw test data. As previously noted there can be no dispute that it is the exception and not the rule that cases like the one before this court will go to trial. In those cases that do go to trial, counsel must be properly prepared to conduct a trial on behalf of his or her client. Part of that preparation would involve the preparation to cross examine a witness like Dr. McFadden. Mr. McLeish would be entitled to review Dr. McFadden's complete file once Dr. McFadden has testified in chief. The comments of Ferguson J. in Brown v. Lavery (supra), contemplate the inevitable delay in the trial process that such review may entail if it occurs while the witness is on the witness stand.

[30] The production of the raw test data prior to the pre-trial and testimony of a witness like Dr. McFadden may also assist in the ultimate resolution of the action. It may turn out that counsel, with the benefit of the actual raw test data and the possible assistance of his expert will either accept the opinion of the producing neuropsychologist or alternatively will be able to convince the other side of possible errors in their approach. Applying the second part of the Rule 30.10 test, it would be unfair to require the moving party to proceed to trial without the raw test data once an action has reached the pre-trial stage. Furthermore proportionality, and balancing all of the competing interests, is achieved by denying the production of the raw test data directly to Mr. Mcleish at this stage of an action, but then requiring production prior to an action being ready for a pre-trial.

[31] Recognizing that there will ultimately be a small percentage of cases that do not settle and will ultimately proceed to trial, and so as to avoid further motions with respect to production of raw test data, if this matter proceeds to the pre trial stage the raw test data shall then be produced by Dr. McFadden directly to plaintiff's counsel. This order shall be subject to an order that would require such documentation to be maintained in strict confidence and shall not be disclosed to the plaintiff directly. The documentation shall also be subject to an order that the raw test data shall be destroyed by plaintiff's counsel at the completion of the litigation, completion meaning either settlement and/or trial. As to the trigger date for when the raw test data is to be produced in relation to a pre-trial that date shall be determined on the basis of the earlier of this court ordering a pre-trial or six months after the trial record is filed.

[32] In making this production order it shall not in any way be construed as being determinative of the admissibility of the new test data at trial. The use to which the raw test data may be put at trial will be subject to the discretion of the trial judge.

[33] As to the question of costs the parties may make submissions in writing limited to three pages in length to be received within 10 days from the date of receipt of these reasons. As the matter did involve an issue of some importance to the personal injury Bar and as success has been somewhat divided the parties may wish to consider whether a demand for costs under the circumstances is appropriate.

Justice M. Edwards

Date: June 25, 2012