ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 897/97
DATE: 2012/08/31
B E T W E E N:
EVELYN HUGHES
John B. Gorman, for the Plaintiff
Plaintiff
- and -
THE GENERAL ACCIDENT ASSURANCE COMPANY OF CANADA
Leilah Edroos, for the Defendant
Defendant
HEARD: August 28, 2012
The Honourable Mr. Justice Norman M. Karam
[ 1 ] The defendant moves for an order, firstly, requiring the plaintiff to attend for two defence medical examinations, one to be conducted by an orthopedic specialist and the second by an occupational therapist. Secondly, the defendant seeks an order requiring the production of the clinical notes and records of Dr. Dana Wilson, an orthopedic specialist, and of Irene Vrckovnik, an occupational therapist, who have examined the plaintiff and whose reports the plaintiff has recently served upon the defendant.
[ 2 ] This action arose out of a motor vehicle accident on May 2, 1994, as a result of which, the plaintiff claims to have suffered various injuries including a fracture of her left clavicle, a fractured rib, a fractured maxilla, a contusion to her sternum, soft tissue injuries to her neck and back and knee contusions among others. She was insured under an automobile policy with the defendant insurer and this action relates to her claim for statutory accident benefits, which she received until May 16, 1996, when they were terminated.
[ 3 ] The benefits were terminated as the result of a multidisciplinary assessment conducted on behalf of the defendant, by medical professionals from numerous health disciplines, including an orthopedic surgeon, a physical therapist, an occupational therapist, a psychologist and rehabilitation professional. In addition, prior to the multidisciplinary assessment of May 11, 1996 the defendant also had already had her assessed by an orthopedic surgeon and a disability evaluating physician. As well at least two rehabilitation agencies were involved in determining the extent of her disability. Mediation was completed in 1997 and this action was commenced in December of that year.
[ 4 ] By 2003, pleadings had been exchanged and examinations for discovery had been held. In 2006, the defendant brought a motion to this Court, seeking an order to conduct defence medical examinations, by a physiatrist and a dental surgeon. An order was made by Bolan, J., requiring the plaintiff “to attend for further defense medicals before the same medical physicians who have already examined her”. The Court also ordered “that the defendant is at liberty to set the action down for trial once discoveries are completed”.
[ 5 ] On appeal by the plaintiff, the part of the order requiring that the plaintiff undergo further defence medicals was overturned by the Ontario Divisional Court. In a brief endorsement, the Court stated “We are all of the view that the motions judge had insufficient material before him and received inadequate assistance from counsel to enable him to properly exercise his discretion under S. 105 of the Courts of Justice Act and make an order that complied with the requirements of R. 33.02(1). For these reasons, the appeal herein is allowed and the order of the motions judge set aside”.
[ 6 ] I accept plaintiff’s counsel’s argument that the words “insufficient material before him” and “inadequate assistance”, referred to the failure of counsel for the defendant, at that time, to produce existing medical reports obtained by the defendant and by inaccurately indicating in the supporting material, that the only existing medical report available relating to the plaintiff’s condition, was a report of Dr. Holmes an orthopedic surgeon dated March 20, 1996, when in fact a multitude of experts had already examined her, and had provided reports, on behalf of the defendant. The motions judge was therefore unable to weigh the necessity of granting the order in light of existing information.
[ 7 ] The decision of the Divisional Court was not appealed, and no further attempt was made by the defendant to pursue an order for defence medicals, presumably by providing sufficient material. The defendant set the action down for trial on May 12, 2008. Counsel concedes that the defendant was satisfied at that point with the medical evidence available. Although a trial date had been obtained, the parties then adjourned the trial while awaiting a decision of the Court of Appeal, in a matter which they hoped would assist in settlement. On Sept. 9, 2011, the action was re-scheduled for trial to be heard on October 9, 2012.
[ 8 ] On July 4, 2012, counsel for the defendant was served with medical reports of Dr. Dana Wilson, an orthopedic surgeon, whose report is dated August 8 th , 2011, and Irene Vrckovnik, an occupational therapist, whose report is dated June 14 th , 2012.
[ 9 ] Counsel for the defendant argued that in view of the two reports recently received from the plaintiff in early July, and in order to permit the defendant to respond to the opinions expressed regarding the present condition of the plaintiff, particularly considering the lengthy period of time that it has taken for this matter to reach trial, it would be reasonable to permit the plaintiff to be examined by experts selected by the defendant in the same disciplines, in order to “even the playing field”.
[ 10 ] Counsel for the plaintiff argued that since the onus of proof rests with the party requesting the examinations, in order to satisfy the Court, evidence must be produced to meet that onus. The evidence in question should be the reports of the numerous medical experts who originally examined the plaintiff to permit the Court to satisfy itself as to the necessity of making such an order. The defendant did not do so, choosing instead to rest its argument upon the present condition of the plaintiff and the lengthy period (about 16 years), since the last medicals were obtained by the defendant.
[ 11 ] In the absence of the previously obtained medicals, I am left to conclude that the defendant is simply attempting to buttress, or as described by Valin J., in Moore v. Royal Insurance “to corroborate or legitimize the earlier opinions” already obtained. The Court in that case also indicated that “A prior medical examination undertaken in response to a claim for SABS is relevant to the question of whether a medical examination may be ordered under the Courts of Justice Act .
[ 12 ] Counsel for the plaintiff also pointed out that since the defendant chose to set this matter down for trial in 2008, without any further effort, until now, to obtain an order to conduct defence medicals, the defendant must have been satisfied to proceed at that time, on the basis of the medical evidence then available. Counsel for the defendant quite reasonably conceded that fact. Having adopted that strategy, it is not open to the defendant to ignore having set the matter down for trial. In Kovary v. Heinrich , Holland, J., stated “before any certificate of readiness is vacated to permit further interlocutory proceedings or discovery, there should be a substantial and unexpected change in circumstances to the extent that to refuse the order would be manifestly unjust.”
[ 13 ] In Tolbend Construction , Eberle J., stated “The obligation of the Court to see that justice is done is paralleled by the obligation on solicitors to frame their cases properly. I do not read the Rules…as requiring the Court to accede to every change of solicitors’ views about the proper course or conduct of the case...”
[ 14 ] In an application similar to this one, in Fenton v. Massaroni et al, Rivard J., stated “Leave should only be granted where there is evidence before the court to support the granting of such leave. That evidence may consist of a significant or unexpected change in circumstances or some other evidence which supports the granting of the order sought to ensure trial fairness.”
[ 15 ] I can find nothing in the material before me or in the circumstances of this action that constitutes “a substantial and unexpected change in circumstances” such as to justify the order being sought. The defendant is bound by its course of action. It chose not to bring a further motion in a timely manner in accordance with the reasons of the Divisional Court, set the action down for trial and in doing so, indicated that it was ready to have the matter tried. Simply because the plaintiff chose to exercise her rights under the rules of practice (in fact, the plaintiff apparently did not comply with the 90 day time period, creating a matter to be dealt with by the trial judge), in the absence of evidence to that effect, has failed to satisfy the onus placed upon it. I am therefore dismissing this part of the motion.
[ 16 ] The other issue raised by the defendant is a request for the production of clinical notes and records underlying the opinions expressed in the two reports of Dr. Wilson and Irene Vrckovnik. The information will have to be produced at trial and may be the subject of cross-examination at that time. Counsel for the defendant wishes to have the information in order to prepare for trial. I agree with her argument that at this stage, the notes and records are not privileged, and once proven to underlie some ambiguity or inconsistency may be the subject of an order to produce them.
[ 17 ] However, I do not agree that Dr. Wilson’s failure to mention post-accident injuries and surgeries that are mentioned by Ms. Vrckovnik in her report constitutes a contradiction or an inconsistency. Similarly his failure to indicate the dates of some of the reports that he reviewed seems trifling at best.
[ 18 ] Ms. Edroos argues that Dr. Wilson makes reference in his report to ongoing “bilateral knee pain”, thereby raising for the first time knee complaints. As counsel for the plaintiff pointed out evidence regarding injury to the plaintiff’s knees were noted in the original hospital admission records, which refer to “knee bruising”, “dashboard knees”, and “contusions to both knees” among other references. Although not produced, I am advised that a report was provided for the defendant with respect to the plaintiff’s left knee by Dr. Tom Wallace.
[ 19 ] After reviewing both of the reports recently served by the plaintiff, I am of the view that this arm of the motion is without merit, and accordingly the motion is dismissed in its entirety.
[ 20 ] The matter of costs may be dealt with on 4 days’ notice.
The Honourable Mr. Justice Norman M. Karam
Released: August 31, 2012
COURT FILE NO.: 897/97
DATE: 2012/08/31
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: EVELYN HUGHES Plaintiff - and – THE GENERAL ACCIDENT ASSURANCE COMPANY OF CANADA Defendant REASONS FOR JUDGMENT The Honourable Mr. Justice Norman M. Karam
Released: August 31, 2012