ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-08-0512-00A1
DATE: 2012-07-12
B E T W E E N:
Ibrahim Nasir, a minor, by his litigation guardian Tahir Nasir and Tahir Nasir personally
H. Fancy , for the Plaintiffs
Plaintiffs
- and -
Aggie Kochmanski
T. Hamilton , for the Defendant
Defendant
HEARD: July 4, 2012
REASONS FOR JUDGMENT
Daley J.
[ 1 ] This action relates to claims arising from a motor vehicle accident which occurred on April 16, 2006, at which time of the minor plaintiff, who was born on December 12, 2003, was allegedly struck by the defendant's vehicle, while a pedestrian.
[ 2 ] The defendant moves for an order requiring the minor plaintiff to attend upon a psychological assessment with psychologist Dr. Jo-Anne Finegan Ph.D.
[ 3 ] For the reasons set out below I grant the order sought by the defendant.
[ 4 ] It is asserted in the statement claim that the minor plaintiff has sustained serious injuries including a head injury and related impairment of mental and psychological functions.
[ 5 ] It is further alleged that he suffers from a variety of emotional and psychological problems flowing from his injuries including mental distress and depression.
[ 6 ] Following the motor vehicle accident, the minor plaintiff had been assessed by several medical doctors and psychologists.
[ 7 ] His family physician, Dr. Mohamed Salyani provided a report dated November 10, 2009, wherein he noted that the child's mother reported that he was more withdrawn than his siblings and was more aloof. As to his prognosis, the doctor noted that he may require psychotherapy and psychological treatment and medication for anxiety.
[ 8 ] The child was also seen by Dr. Gerald Friedman, a specialist in general paediatrics, with a special interest in paediatric headache and neurology. In his report June 5, 2006, he noted that subsequent to the motor vehicle accident, the child's mother reported a change in his behaviour including moodiness, tantrums as well as fighting with his siblings.
[ 9 ] Dr. Sharon Marcovitch, a register psychologist, was also involved in assessing the child, at the request of the plaintiffs' solicitor. She delivered a report related to her contacts with the child and his mother on five visits between October of 2007 and January, 2008.
[ 10 ] In her report she outlined the details of the child's history both pre-and post-accident as she obtained it from the child's mother and from medical records made available to her.
[ 11 ] Dr. Marcovitch noted that the child presented with English language skills which appeared to be delayed and that he was at risk for language-based learning disabilities and a communication disorder. She recommended several further assessments including a neurological assessment, a repeat neuropsychological assessment as well as speech language and occupational therapy assessments.
[ 12 ] The minor plaintiff was referred, by plaintiffs’ counsel to Dr. Elaine McKinnon, a psychologist, for a psychological assessment and she provided a report dated July 21, 2010.
[ 13 ] In the course of her assessment, Dr. McKinnon reviewed information regarding the child's history provided by his mother, Ume Rabab, and contains the details of the interview of her.
[ 14 ] Dr. McKinnon recommended several follow-up referrals including with Dr. Peter Rumney of Holland Bloorview Kid’s Rehabilitation Hospital. In his report of December 17, 2010, Dr. Rumney stated that he had determined that the minor plaintiff had sustained a moderate traumatic brain injury as a result of the motor vehicle accident, with resulting cognitive deficits and secondary attention deficit disorder.
[ 15 ] Counsel for the defendant requested that the minor plaintiff attend upon paediatric neurologist Dr. Daune MacGregor of The Hospital for Sick Children for the purpose of a neurological assessment.
[ 16 ] The record shows that counsel for the plaintiff had previously consulted with Dr. MacGregor regarding the minor plaintiff, but had not retained her on his behalf. He did not object to Dr. MacGregor carrying out the neurological assessment requested.
[ 17 ] Upon being made aware of the defendant's request for a neurological assessment by Dr. MacGregor, the plaintiff's solicitor raised the issue as to how the minor plaintiff was to attend the assessment with Dr. MacGregor with his parents given that his father was a plaintiff and his mother was, at that time, a third party in this action.
[ 18 ] The record is somewhat unclear as to what arrangements were made with respect to the child attending before Dr. MacGregor for the purpose of her assessment and who was to attend with him.
[ 19 ] An appointment was scheduled with Dr. MacGregor for the assessment for September 18, 2011. The record shows that the minor plaintiff attended at the appointment with Dr. MacGregor in the company of his speech pathologist, Ms. Stephanie Zawalicz-Mowinski. According to Dr. MacGregor's letter of September 19, 2011, the child was dropped off at her office in the care of the speech pathologist. She indicated to Dr. MacGregor that the child's parents had consented to her conducting her assessment.
[ 20 ] According to Dr. MacGregor's letter of September 19, 2011, she completed a "non-invasive physical examination" and observed the child's drawing and printing efforts. She stated in her letter that in order to complete a full neurological assessment of the child she required the opportunity to interview the parents and conduct a semi-structured medical interview.
[ 21 ] As it was the position of counsel for the defendant that Dr. MacGregor was unable to complete her neurological assessment of the child, it was agreed as between counsel for the plaintiff and counsel for the defendant that the child's mother, in the company of the plaintiff's solicitor, would attend upon Dr. MacGregor, without the child, so as to allow Dr. MacGregor to conduct an interview with the child's mother. That interview was carried out on February 11, 2012. Dr. MacGregor has not as yet released a report regarding her assessment.
[ 22 ] Counsel for the defendant wrote to counsel for the plaintiffs on January the 4, 2011 indicating that the defendant wished to have a second defence medical examination in order to respond to the assessment reports obtained on behalf of the plaintiff and in particular the neuropsychological report of Dr. Elaine McKinnon. The defendant's counsel requested that the child attend upon neuropsychologist Dr. Dalia Slonim on a date to be selected in January, 2012.
[ 23 ] Counsel for the plaintiff refused to allow such an assessment. Counsel for the defendant by way of the supplementary affidavit of Pam Horvat, sworn March 26, 2012, indicated that the defendant no longer wished to proceed with the neuropsychological assessment with Dr. Slonim but rather wished to have the minor plaintiff undergo a psychological assessment with Dr. Jo-Anne Finegan.
[ 24 ] Dr. Finegan, in her letter to defence counsel of March 24, 2012, outlined the scope of the proposed assessment of the minor plaintiff, which would involve examination of psychological conditions and symptoms. The proposed assessment would last two days and would require the participation of the minor plaintiff's parents as well as production of information from the minor plaintiff's school teacher. Test results from previously completed assessments of the minor plaintiff would also be required.
[ 25 ] This doctor would also require the completion of a questionnaire by the parents as to the child's developmental history, current health and medications. She noted in her letter that it is necessary that she meet with the child's parents in order to properly complete such a psychological assessment.
[ 26 ] It is the defendant's position that the psychological assessment should be ordered as the assessment with Dr. MacGregor was not properly completed and as such it is the defendant’s position that it is essentially moving for a first medical assessment of the minor plaintiff.
[ 27 ] It is urged on behalf of the plaintiffs that the defendant is in fact seeking a second defence medical assessment and that the defendant has not put forward sufficient evidence to cause the Court to exercise its discretion in ordering a second assessment.
[ 28 ] Counsel for the plaintiff also asserts that the defendants should not be allowed a second medical assessment, in part based on the "undisclosed underlying relationship" between Dr. MacGregor and Dr. Finegan, and given the defendant's delay in seeking the psychological assessment in this action.
Analysis:
[ 29 ] Section 105 (2) of the Courts of Justice Act provides that the Court may order a party to undergo an examination by one or more health practitioner "where the physical or mental condition of the party to a proceeding is in question." It is clear from the pleadings and the evidentiary record filed on this motion that physical and mental condition of the minor plaintiff is in question.
[ 30 ] Section 105 (4) also provides that the Court may order further physical or mental examinations.
[ 31 ] The right to respond to a plaintiffs’ expert report is a substantial one, involving principles of trial fairness as the Court of Appeal stated in Rysyk v. Booth Fisheries Canadian Co. Ltd., [1971] 1 0.R. 123 (C.A.), at para. 8; see also Bonello v. Taylor , 2010 ONSC 5723 .
[ 32 ] In Bonello , supra , Brown J. thoroughly reviewed the relevant statutory considerations and jurisprudence related to a request for a second examination under section 105 of the Courts of Justice Act .
[ 33 ] In considering the defendant's motion for a second examination, Brown J. summarized at para. 16 the leading principles from the jurisprudence that the Court may examine on such a motion.
[ 34 ] Not all the considerations outlined by Brown J. have an application to the facts in this matter, however several do.
[ 35 ] Examining the relevant considerations, I am satisfied that the defendant is seeking a legitimate assessment. There is no evidence that the undertaking of such an assessment would delay the trial or cause prejudice to the plaintiffs. This action is not listed for trial.
[ 36 ] Although a neurological assessment of the minor plaintiff was carried out by Dr. MacGregor and a clinical interview of her mother was carried out as well, no report is presently available from Dr. MacGregor. While it was submitted by counsel for the defendant that Dr. MacGregor’s assessment was not fully completed, absent any evidence from Dr. MacGregor, I cannot make that finding. As such I must consider this motion on the basis that the defendant is seeking a further medical assessment.
[ 37 ] The proposed assessment, as outlined by Dr. Finegan in her letter is outside the scope of expertise of Dr. MacGregor. There was no suggestion on behalf of the plaintiffs that the assessment as proposed was one involving the same expertise.
[ 38 ] Further, although it was submitted by counsel for the plaintiffs that the proposed assessment was simply a request for a "matching report" and as such the request, in and of itself, does not form a proper basis for an order granting a second examination, I fully agree with the observations of Brown J. in Bonello , supra , where he states at para. 16 (iii):
Some cases take the view that the need for a “matching report” – i.e. a report from a defence expert witness in the same specialty as a plaintiff’s 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.
[ 39 ] Although it would be preferable to have an affidavit or report from Dr. MacGregor outlining the need for the additional medical examination, on the record, I am satisfied that there is sufficient evidence to support the need for such further examination.
[ 40 ] The minor plaintiff is very young and when this matter proceeds to trial, the evidence with respect to his injuries and resulting limitations will be offered by medical and psychological experts as well as perhaps by teachers and his parents.
[ 41 ] The child's evidence, if offered a trial, will be of limited evidentiary value in that he will have little ability to offer meaningful and reliable evidence as to his pre-and post-accident health. Thus, the expert evidence from physicians and psychologists will be the most probative and reliable evidence available for the Court.
[ 42 ] The minor plaintiff has undergone an extensive psychological assessment by Dr. Sharon Marcovitch, over several days as outlined in her report. Further, Dr. Elaine McKinnon conducted a neuropsychological assessment of the child and an interview of his mother, and as well administered a battery of tests which are referred to in her report.
[ 43 ] Considerations of trial fairness as balanced against imposing an undue burden on the plaintiff to undergo an additional examination must be examined. Weighing these considerations, I am of the view that they favour the further examination as requested by the defendant.
[ 44 ] As to the reliability and credibility of the proposed expert psychologist, Dr. Finegan, it was submitted by the plaintiffs’ solicitor that she and Dr. MacGregor work as a "tag team" and that based on a single case cited by him, wherein both experts testified in a medical malpractice trial, the Court should conclude that Dr. Finegan, in combination with Dr. MacGregor would not provide an opinion that would be fair, objective and non-partisan, as set out in rule 4.1.01 of the Rules Of Civil Procedure .
[ 45 ] This submission is entirely unfounded on the evidentiary record available to me.
[ 46 ] The plaintiff's solicitor, having previously consulted Dr. MacGregor, acknowledged that she is a highly regarded paediatric neurologist. To suggest that these two experts would essentially conspire to undermine the Court's search for the truth is a most serious allegation that has no basis whatsoever in the evidence.
[ 47 ] As to the conduct of the psychological assessment, it was urged on behalf of the defendant that the minor plaintiff's mother must be in attendance in order to allow for a proper history to be taken. Although the child's mother was a third party in this action, the action as against her was dismissed by the order of Dawson J.
[ 48 ] Counsel representing the minor plaintiff's mother, now a non-party, was granted leave to make submissions on the return of this motion. It was urged on her behalf that it would not be proper that she be ordered to attend a psychological assessment with her son. Counsel advised that she would not attend unless ordered by the Court to do so.
[ 49 ] Considering the minor plaintiff's age and inability to provide any meaningful history or relevant information to the examining psychologist in compliance with section 105(5) of the Courts of Justice Act , I am of the view that the child's mother must attend with him at the psychological assessment with Dr. Finegan: Barnes v. London (City) Board Of Education (1994) , 34 C.P.C. (3d) 51 (Div. Ct.) .
[ 50 ] I reach this conclusion, noting that the action against the child's mother, Ume Rabab, as a third-party, was dismissed by Dawson J. In my view, it is within the inherent jurisdiction of the Court to control the discovery process and the manner in which the examination must be conducted. The child's mother was represented by counsel upon the return of this motion and had a full opportunity to make submissions on this issue and as well filed a factum on the motion.
[ 51 ] In the result, the minor plaintiff shall attend upon a two day psychological assessment with Dr. Jo-Anne Finegan, in the company of his mother Ume Rabab on dates to be set. She shall participate in an interview with Dr. Finegan and answer all relevant questions put to her in order to assist the psychologist in evaluating the mental condition of the minor plaintiff.
[ 52 ] Although Dr. Finegan indicates in her letter of March 24, 2012 that she requires the child's parents to complete an information form as to the child's developmental history, past and current health and medication, no such information form has been submitted in evidence. As such, in my view it would not be appropriate to direct that the child's mother complete a questionnaire, the particulars of which have not been disclosed.
[ 53 ] Further, no questions regarding the circumstances of the accident or in any way relating to issues of liability with respect to the accident are to be posed by Dr. Finegan to the child's mother.
[ 54 ] The balance of the motion brought on behalf of the defendant has been adjourned to August 15, 2012. A timetable with respect to the delivery of submissions with respect costs will be established after the completion of the motion on that date.
Daley J.
Released: July 12, 2012
COURT FILE NO.: CV-08-0512-00A1
DATE: 20120712
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Ibrahim Nasir, a minor, by his litigation guardian Tahir Nasir and Tahir Nasir personally Plaintiffs - and – Aggie Kochmanski Defendant REASONS FOR JUDGMENT Daley J.
Released: July 12, 2012