ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 58396
DATE: 2012-01-16
RE: Randall Scott Cook, Plaintiff/Responding Party
and:
Daniel Glanville and The Corporation of the City of London, Defendants/Moving Parties
BEFORE: McDermid, J.
COUNSEL:
R. D. Dale, for the Plaintiff/Responding Party.
T. Pollitt, for The City of London, Defendant/Moving Party.
HEARD: January 10, 2012.
ENDORSEMENT
[ 1 ] The City moves pursuant to r. 33 for an order to compel the plaintiff to undergo an in- home occupational therapy assessment.
[ 2 ] The plaintiff opposes the motion on the following grounds:
a. The proposed assessor is not a "health practitioner" as defined in s. 105(1) of the Courts of Justice Act.
b. There is no evidence that a "health practitioner" requires the assessment as a diagnostic tool.
c. The order sought cannot be granted solely on the issue of trial fairness in the absence of evidence that the proposed assessment is necessary to the diagnosis of a "health practitioner".
d. The accident benefits reports referred to below are available to the defence.
e. Therefore, the motion should be dismissed.
[ 3 ] The position of the defence is as follows:
a. The amount claimed by the plaintiff is substantial.
b. The plaintiffs have had the advantage of receiving copies of reports from occupational therapy assessments of the plaintiff prepared for the plaintiff's accident benefits insurer.
c. Trial fairness requires that the defence be permitted to have its assessor conduct an independent in-home occupational therapy assessment of the plaintiff, which is necessary for the calculation of the plaintiff's future care costs.
[ 4 ] I have read with some care the affidavit of Michael Devlin sworn December 13, 2011. He is a physician practicing physical medicine and rehabilitation who has been retained by defence counsel "to provide a defence medical with respect to Randall Cook and his future care requirements." Nowhere in his affidavit do I find Dr. Devlin deposing that he requires the assessment sought by the defence in aid of his diagnosis. Rather, Dr. Devlin deposes that he will not be observing the plaintiff in his home environment.
[ 5 ] Paragraphs 4 to 7 inclusive of his affidavit read as follows:
As a physician, my expertise is in determining Mr. Cook's physical limitations and defining how these limitations may affect him physically in the future. I do not have any expertise in the assessment of the monetary cost required for any future care requirements that Mr. Cook may need.
My understanding is that my report and the report of the Occupational Therapist who will be assessing Mr. Cook in his home will be provided to the Certified Life Care Planner, who will then assess the future care costs of the plaintiff.
The in-home Occupational Therapy assessment and my report are required to provide a proper and complete assessment of Mr. Cook's physical limitations. These reports are required to produce a Future Care Cost report, which will define the future costs of Mr. Cook's future care requirements.
An in-home Occupational Therapy Assessment will allow the writer of the Future Care Cost report to meaningfully analyze Mr. Cook's needs since the Occupational Therapist will have an opportunity to assess how Mr. Cook's limitations affect him in his own home.
[ 6 ] I conclude that it is Dr. Devlin's opinion that the assessment the defence seeks is necessary not for his any diagnosis that he might make but that taken with his diagnosis it is required to permit the preparation of a Future Care Cost report, which will be prepared by a third-party referred to by the title Certified Life Care Planner.
[ 7 ] As Granger J. notes in Vanderridder v. Aviva Canada Inc.[^1],
The jurisdiction to order non-medical expert assessments is an area of controversy in Ontario courts. The decisions on this topic divide into two streams at the Superior Court of Justice level, and there does not appear to be a Court of Appeal decision settling the matter. In the first set of cases, courts generally interpret s. 105 and r. 33 narrowly, allowing non-medical assessments only if required as diagnostic aids for medical practitioners. The divergent stream invokes the discretionary inherent jurisdiction of the court to ensure justice is done in any particular case. In these cases, a non-medical expert assessment is usually ordered in the interests of fairness and justice.
[ 8 ] In my opinion, that statement accurately summarizes the positions of the parties on this motion, each arguing for the application of a different "stream" of authorities. Counsel have provided a number of cases to support their respective positions.
[ 9 ] Ms. Pollitt submits that some of these cases have been decided by Masters and others by judges. She points out that the jurisdiction of Masters is statutory but that judges enjoy an inherent jurisdiction, which may explain the divergent lines of cases.
[ 10 ] Among the cases cited to me, all were decided in this court, or its predecessor, either by judges or Masters of the court, with one exception: Desbiens v. Mordini[^2] where C. Campbell J., sitting as a single judge of the Divisional Court, in refusing leave to appeal to the Divisional Court, stated:
I agree with Cameron J. that the suggestion that s. 105 is the only basis for future care cost or vocational assessments amounts to be an error in law.
In Yusuf v. MacLean , [1999] O.J. No. 4348 , O’Driscoll J. referred to a number of authorities that confirm the inherent jurisdiction in this court to exercise discretion in permitting future care assessments where appropriate.
[ 11 ] As Granger J. accurately observed, there appears to be no decision from the Court of Appeal on this issue; at least, no such decision was referred to me by counsel. In the absence of any decision from the Court of Appeal, I am persuaded to follow the decision of the Divisional Court in Desbiens as enunciating the proper approach to this issue.
[ 12 ] In the circumstances of this case, I find it appropriate and fair to exercise my discretion and grant the order sought for the following reasons:
a. The report sought is necessary to provide the defendant with an independent evaluation of the plaintiff's physical limitations and consequent needs in the context of his home environment.
b. That report will form the basis of an assessment by the Certified Life Care Planner of the plaintiff's future care costs. Both Dr. Devlin's report and the report of the occupational therapist are necessary components to be used in the calculation of future care costs.
c. The defence is entitled to know the case it has to meet and is entitled to make an independent assessment of the plaintiff's claims.
d. The claim for future care costs is substantial.
e. The report may assist in settlement discussions.
f. Should the matter go to trial, the court will benefit from the testimony of expert witnesses who possess the same level of knowledge.
g. The report may reveal common ground between the experts on each side, which in turn may lead to a simplification of the trial.
h. No undue hardship or prejudice will accrue to the plaintiff if the order is granted.
[ 13 ] Accordingly, the motion is granted and the plaintiff shall attend an in-home occupational therapy assessment by Ms. Judy Phillips on a date within 14 days of this date to be agreed upon by counsel provided that the trial of this matter, scheduled for the sittings commencing March 26, 2012, shall not be delayed.
[ 14 ] If counsel are unable to agree on costs or the date of the in-home occupational therapy assessment, they may make submissions in writing, not to exceed five pages, within 30 days. At the end of that time, I shall make an order based on the material before me.
“ Justice D. R. McDermid”
Mr. Justice D. R. McDermid
Date: January 16, 2012.
[^1]: 2010 ONSC 6222 , [2010] O.J. No. 5011 (S.C.J.) at para.23.
[^2]: [2003] O.J. No. 368 at paras. 8 and 9 . (Ont. Div.Crt)