SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 64829
DATE: 2012/09/26

RE: DEBORAH LABADIE (Plaintiff)

• and –

SCOTT BARRY and CANADIAN ROAD LEASING COMPANY LTD, A Division of Mazda Credit Leasing (Defendants)

BEFORE: Justice A. D. Grace

COUNSEL:
Joni M. Dobson, for the Plaintiff
Gregory Robson, for the Defendants

HEARD: September 5, 2012

E N D O R S E M E N T

[ 1 ] At issue is whether an order should issue requiring Ms. Labadie to attend at the office of psychiatrist Dr. Richard Hershberg in Toronto for an independent medical examination (“I.M.E.”)

A. Background

[ 2 ] Ms. Labadie suffered multiple injuries in a December 18, 2007 motor vehicle accident. She alleges she has sustained continuous, permanent and serious impairments of important physical, mental or psychological functions and seeks substantial damages. Paragraph 9 of the statement of claim alleges:

Deborah [Labadie] continues to have significant pain levels. Her injuries have also been accompanied by dizziness, difficulties with her vision, concentration and attention issues, difficulties with speech, judgment and decision making problems, tinnitus, balance and coordination difficulties, loss of memory, fatigue, shock, anxiety, nightmares, depression, emotional trauma, chronic pain, insomnia, weakness, diminished energy, spasticity and stiffness which continue to the present and will continue in the future.

[ 3 ] The defendants deny that Ms. Labadie sustained the injuries alleged, attribute any health concerns to other causes and allege she has failed to mitigate her damages.

[ 4 ] Ms. Labadie is well acquainted with health practitioners. At the instance of one party or another and the accident benefits carrier, Ms. Labadie has been seen by a small army of them: a psychologist, neuropsychologists (at least four), neurologists (at least five), physiatrists (at least two), an orthopaedic surgeon and psychiatrists (at least two).

[ 5 ] This motion arose in these circumstances. Ms. Labadie acceded to the defendants’ request for I.M.E.’s by Drs. Stewart (a neurologist), Freedman (a neuropsychologist) and Taylor (an orthopaedic surgeon).

[ 6 ] The choice of health professionals representing different specialties was a product of the “constellation of symptoms” manifested by Ms. Labadie. The parties agree that this case is a particularly complex one.

[ 7 ] The I.M.E.’s were undertaken in late 2011 and earlier this year. In his March 1, 2012 report, Dr. Freedman explained why he had made the decision to prematurely “terminate the formal neurocognitive study” of Ms. Labadie. Instead, Dr. Freedman completed a review of Ms. Labadie’s medical record and concluded that:

The etiology that best accounts for the symptom picture of pseudoneurologic and pseudoneurocognitive impairment is that of an underlying psychiatric disturbance involving a conversion-type disorder. As such…Ms. Labadie…requires a medical-legal psychiatric study to address the suggested existence (or absence) of a conversion-type disorder.

[ 8 ] The defendants acknowledge they were aware that some of the health practitioners consulted earlier had postulated that Ms. Labadie’s presentation warranted a psychiatric consultation. For example, in a February 2, 2009 letter to Ms. Labadie’s family physician, neurologist Dr. Kathy Kaye observed:

Her physical examination today reveals some inconsistencies and functional findings, suggestive of underlying psychiatric illness. I would wonder about a possible conversion disorder in her case. I do not think she has a neurological illness at all…I suggested to her that perhaps the stress of being in a car accident caused some psychological trauma, causing her current symptomatology…She certainly needs a psychological or perhaps a psychiatric assessment.

[ 9 ] However, they maintain that it was not until receipt of Dr. Freedman’s March 1, 2012 report that they realized psychiatric examination was imperative. In Dr. Freedman’s report he noted:

An analysis of the file review report submitted by Dr. Saint-Cyr of November 2010 indicated that he diagnosed a conversion disorder. It appeared that Dr. Saint-Cyr noted that a brain injury had not been sustained in the motor vehicle. There appeared to be an entrenched, unconscious sick role, and again, it appeared that Dr. Saint-Cyr diagnosed a conversion disorder that was manifesting as pseudoneurologic and pseudocognitive impairment.

B. Position of the Parties

[ 10 ] Mr. Robson maintains that a review of the substantial medical record reveals this: a consensus with respect to symptoms but a divergence with respect to cause, prognosis and treatment.

[ 11 ] He submitted a psychiatric assessment may provide valuable information with respect to all three areas and is relevant to the issues identified in the parties’ pleadings. He suggested that an examination by an expert in psychiatry has been recommended seven times. Three health practitioners have raised the possibility Ms. Labadie suffers from a conversion disorder.

[ 12 ] Mr. Robson argued that the defendants cannot be faulted for selecting a neuropsychologist first since the plaintiff chose one as well. No one should be blamed for the fact the assessment could not be properly completed and, in any event, Dr. Freedman believed a psychiatric examination was more appropriate.

[ 13 ] Finally, he maintained that there is no evidence of prejudice except possible stress.

[ 14 ] Ms. Dobson disagrees with Mr. Robson’s analysis. Ms. Labadie has suffered and continues to suffer from a range of ailments including chronic pain and depression. A precise explanation for all of them cannot reasonably be expected.

[ 15 ] She maintains that the theory that Ms. Labadie suffers from a conversion disorder is not new. It was known before Ms. Labadie’s examination for discovery started in January, 2011. The defendants waited to request an I.M.E. until after the trial record was served in September, 2011. By then, the defendants had in their possession copies of reports from all of the health practitioners retained by Ms. Labadie or the accident benefits carrier.

[ 16 ] Ms. Dobson maintains that the defendants should be held to the choices they made.

C. Analysis and Decision

[ 17 ] The law is not in dispute. Jurisdiction to order a physical or mental examination when a person’s condition is in issue in a proceeding is clear: Courts of Justice Act, s. 105; Rules of Civil Procedure, rule 33.

[ 18 ] In Tsegay v. McGuire (2000), 1 C.P.C. (5 th ) 311 (S.C.J.) at para. 5, Gillese J. (as she then was) explained the rationale in these terms:

Medical reports are critical to the resolution of personal injury disputes. The choice of physician to conduct the defence medical examination is a matter of importance to the defence. Medical reports contribute to settlements and constitute the crucial expert evidence on which a court relies to do justice between the parties, if the matter proceeds to trial. The policy behind the defence medical exam is to uphold the right of the defendant to conduct his or her defence and to assist the court at trial by furnishing expert evidence that is subject to the adversarial process.

[ 19 ] The desire to ensure “trial fairness” has resulted in orders requiring independent examinations in a host of circumstances. Orders have been made to give a defendant an opportunity to establish a factual basis for the defence of mitigation; Saluri v. Pillon, [2001] O.J. No. 5159 (S.C.J.), to address an unexpected change in complaint, symptoms or circumstances; Gravelle v. Pearson, [2001] O.J. No. 281, to allow a defendant to respond to fresh assessments; Bonello v. Taylor, 2010 ONSC 3723 (S.C.J.), to allow stale information to be updated; Sonny v. Sonnylal, 2010 ONSC 113 (S.C.J.) and to permit full investigation concerning the nature of a plaintiff’s disability and symptoms; Francis v. Centenary Health Centre (1998), 22 C.P.C. (4th) 159 (S.C.J.).

[ 20 ] Such orders have been refused where there is undue delay; Fromm v. Pajon, [2009] O.J. No. 3671 (S.C.J.), an evidentiary basis for the examination has not been established; Carnovale v. Co-Operators, [2004] O.J. No. 4795 (Master); the examination is duplicative; Suchan v. Casella, 2006 20844 (ON SC), [2006] O.J. No. 2467 (S.C.J.) or requested simply to allow the defence to prove a new theory; Pinelli v. Chonevc (2006), 33 C.P.C. (6 th ) 310 (S.C.J.).

[ 21 ] In this case, counsel for Ms. Labadie obtained reports from Dr. Lazosky, a neuropsychologist; Dr. Spence, a neurologist and Dr. Potter, a physiatrist. Ms. Labadie received ongoing psychotherapy from Dr. Reist who has authored her own reports.

[ 22 ] The defendants also had in hand the observations of other health practitioners. For example, their lawyers had received copies of psychiatric reports provided to the accident benefits insurer by Dr. F.G. Davies and Dr. Stanley L. Debow dated September 5, 2008 and April 6, 2011 respectively. Their collection also included the report from Dr. Kaye to which I have already referred.

[ 23 ] Following receipt of those documents and others, the defendants requested that Ms. Labadie voluntarily attend examinations by the health practitioners they chose. Consent was forthcoming once terms were negotiated.

[ 24 ] In response to Ms. Labadie’s choices, the defendants also involved a neurologist but preferred an orthopaedic surgeon to a physiatrist. Those I.M.E.’s were completed exactly as the defendants contemplated.

[ 25 ] The request that Ms. Labadie be required to submit to an examination by Dr. Hershberg followed Dr. Freedman’s unsuccessful attempt to conduct a formal neuropsychological study. Dr. Freedman explained the problems he encountered as follows:

On office arrival, Ms. Labadie was using a cane for ambulatory assistance… She exhibited expressive speech difficulty with stuttering output, and there was a persistent, almost continuous, cough… She exhibited obvious cognitive and motor slowing. As the examination commenced, it became apparent that Ms. Labadie was significantly stressed that would preclude the completion of comprehensive studies … affect was significantly anxious as well, and Ms. Labadie was also lachrymose… Ms. Labadie complained of a significant pressure-like (i.e. balloon) headache…in light of the physical and behavioural presentation, I decided to terminate the formal neurocognitive study.

[ 26 ] That led to Dr. Freedman’s paper review of the reports of the health practitioners who had preceded him.

[ 27 ] I pause here to note three things:

(a) Ms. Labadie saw Dr. Freedman willingly;

(b) There is no suggestion that Dr. Freedman’s inability to complete formal testing was due to a lack of cooperation;

(c) Most of the observations made by Dr. Freedman had also been recorded by another neuropsychologist. Dr. Harnadek saw Ms. Labadie at the request of the accident benefits provider in March, 2010. Dr. Harnadek noted Ms. Labadie’s speech was “severely dysfluent, with prominent hesitation and word-finding difficulties”. He also observed constant coughing, frequent crying, a lack of concentration and confusion. Like Dr. Freedman, he was only able to complete a limited assessment and concluded “the results of the validity measures were invalid.” Dr. Harnadek was unable to address the likely cause of Ms. Labadie’s cognitive difficulties. He recommended that steps be taken to address Ms. Labadie’s emotional state and pain before resuming a neuropsychological evaluation.

[ 28 ] Dr. Freedman’s report mentioned a conversion disorder with some caution. That fact is understandable since Dr. Freedman explained in his July 25, 2012 affidavit that “the assessment, prognosis, and treatment of psychiatric disorders is not my area of expertise.” That statement explains, in my view, Dr. Freedman’s recommendation that Ms. Labadie undergo “a medical-legal psychiatric study to address the suggested existence (or absence) of a conversion-type disorder.”

[ 29 ] In other words, it does not lie within Dr. Freedman’s expertise to offer an opinion whether Ms. Labadie has that condition.

[ 30 ] That fact explains why the defendants made their request that Ms. Labadie submit to an examination by Dr. Hershberg soon after receiving Dr. Freedman’s report.

[ 31 ] With this background, let me try to explain why it is not appropriate to order that Ms. Labadie attend another I.M.E.

[ 32 ] First, the defendants know the case they have to meet. Ms. Labadie’s health issues are exhaustively documented. Ms. Labadie has been seen by a multi-disciplinary team of the defendants’ choosing. That group has reviewed the medical brief compiled by others.

[ 33 ] Second, each health practitioner retained by the defendant, including Dr. Freedman, has offered opinions.

[ 34 ] What the defendants lack is confirmation of the theory first articulated by Dr. Kaye and adopted by Dr. Freedman. Diagnosis of a conversion disorder is outside the expertise of the health practitioners the defendants have retained to date. With respect, I do not find that fact persuasive. A passage from the decision of Master Haberman in Nelson v. Thiruchelvam, 2005 4849 (ON SC), [2005] O.J. No. 743 at para. 23 bears mention. The Master wrote:

…a defendant’s task at trial is not to “solve the problem” or “get to the bottom” of the plaintiff’s complaints. It is therefore not appropriate for them to expect the court to sanction defence medical examinations by medical practitioners with a view to providing a new medical diagnosis.

[ 35 ] It has not escaped my notice that “conversion disorder” was not mentioned by either of the psychiatrists who have seen Ms. Labadie nor by any of the health practitioners retained by her.

[ 36 ] As noted, the possibility was first raised by Dr. Kaye in early 2009. She is a neurologist who recommended “a psychological or perhaps a psychiatric assessment”. Ms. Labadie has been seen by a treating psychologist. Dr. Freedman attributed a diagnosis of conversion disorder to Dr. Saint-Cyr. Mr. Robson fairly acknowledged that he noticed the reference while preparing to argue the motion. Dr. Saint-Cyr’s qualifications, specialty and report were not introduced into evidence.

[ 37 ] Given the boundaries of Dr. Freedman’s expertise, I do not view his comments concerning “conversion disorder” as anything more than the expression of a possible diagnosis which might be wholly accepted – or rejected – by a person having the appropriate qualifications. Ordering the requested I.M.E. on such a thin evidentiary record would, in my opinion, be unwise and inappropriate. The request comes perilously close to a fishing expedition.

[ 38 ] Furthermore, I am concerned about the intrusiveness of any further I.M.E. Details of any examination by Dr. Hershberg are unknown. There is the obvious inconvenience to Ms. Labadie in having to travel, again, from London to Toronto. That factor is not determinative but it should not be ignored.

[ 39 ] By my count this would be at least the seventeenth time Ms. Labadie has been examined. I suspect my figure is low. I recognize Ms. Labadie seeks substantial damages and exhibits a range of symptoms. However, at some point requests for examination may become oppressive. That mark appears to have been passed.

[ 40 ] In Bernice v. Assan (2006), 2006 16481 (ON SC), 27 C.P.C. (6 th ) 376 (S.C.J.) the defendants sought a three day psychological rehabilitation assessment and functional abilities evaluation.

[ 41 ] They filed an affidavit of the proposed assessor which described the scope and purpose of the examination to be undertaken.

[ 42 ] Mr. Robson suggests such evidence is not required except in rare and inapplicable circumstances. Even if that is an accurate statement of principle, in my view this is such a case.

[ 43 ] A review of Dr. Freedman’s report creates a clear impression. The examination was agonizing for Ms. Labadie. That should have come as no surprise given Dr. Harnadek’s report. In his view further neuropsychological testing was not appropriate until Ms. Labadie’s “emotional state and pain” were addressed.

[ 44 ] Clearly the same issues remain. Yet, I have no evidence from or about Dr. Hershberg aside from his curriculum vitae. Was he consulted before tentative appointment dates were obtained? What information, if any, has he received and reviewed concerning Ms. Labadie? Does he agree a psychiatric assessment is appropriate? Why? How long will the appointment be? What is its purpose from Dr. Hershberg’s perspective? Will there be testing? For how long? Of what kinds? In what setting? To what end?

[ 45 ] Given the admitted “complexity” of the case and the fragility of Ms. Labadie, it was imperative that someone other than the defendants’ lawyer explain in clear and coherent terms why a fourth I.M.E. is necessary. It was equally important that the particular circumstances of the plaintiff be addressed to ensure that Ms. Labadie’s apparent vulnerability was understood and would be managed appropriately.

[ 46 ] In short, on the material before me and notwithstanding Mr. Robson’s able submissions, I am not satisfied that the proposed psychiatric examination is relevant to an issue that will be contested at trial. I am not satisfied it is necessary in light of the examinations already undertaken at the defendants’ request. Interests of fairness have been met by the examinations conducted to date. Finally, I am of the view that the proposed examination is unreasonably intrusive. The defendants’ suggestion that a psychiatric assessment would not be “overly prejudicial” to Ms. Labadie is simply not supported by the evidence.

C. Conclusion

[ 47 ] For the reasons given, the motion is dismissed. It should go without saying that the defendants’ motion may be renewed if Ms. Labadie seeks a psychiatric assessment of her own before trial.

[ 48 ] The parties addressed the quantum of costs in their submissions and agreed that the all inclusive sum of $2,000 was a reasonable one. I agree. That amount is payable to the plaintiff within thirty (30) days.

“ Justice A. D. Grace”

Justice A. D. Grace

DATE: September 26, 2012