COURT FILE NO.: 10-49544
DATE: 2012/11/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Richard Levesque, Denise Levesque, Joey Levesque, by his Litigation Guardian Denise Levesque, Zachary Levesque and Crystal Levesque
Plaintiffs/Respondents
– and –
Pascal St. Louis Labelle and Waste Services Inc.
Defendants/Moving Party
Frank McNally, for the Plaintiffs/ Respondents
Peter Cronyn, for the Defendants/ Moving Party
HEARD: November 1, 2012
REASONS FOR DECISION ON MOTION
McLEAN, J.
Overview and Facts
[1] Some facts are “curiouser and curiouser.”[^1] We will get to the curiousness in a moment.
[2] The prosaic part of the facts is as follows. The Plaintiff and Defendant were involved in a motor vehicle accident on November 17, 2007. The result of the accident was that Mr. Levesque suffered serious personal injuries which included a psychological and/or mental component. Indeed it appears from the affidavits that the psychological and/or mental components are the most important or the most profound remaining sequelae of this accident from Mr. Levesque’s point of view. The status of the action is that a mediation is to be held, though not yet scheduled, and after that the matter will be placed on the trial list.
[3] The curiousness of the matter arises in the following way. In Toronto, there are two Dr. Woodsides who are both psychiatrists and apparently they practice, if not together, in close proximity. Dr. Scott Woodside is a psychiatrist with a subspecialty in forensic psychiatry and it was the Defendant’s wish to retain him and have him conduct an independent medical examination. His brother, Dr. Blake Woodside, is also a psychiatrist and practices with a subspecialty in eating disorder-related psychiatry. The Defendant provided various materials to Dr. Scott Woodside and apparently arranged his retainer through a third-party medical service provider, SOMA Medical Assessments. It was arranged with Mr. Levesque to attend in Toronto for such an examination. Mr. Levesque obliged, accompanied by his wife and son. However, through a series of errors none of which can be laid at the feet of Mr. Levesque, he ended up seeing Dr. Blake Woodside.
[4] As described above, Dr. Blake Woodside was not retained to conduct this medical examination. However, for some inexplicable reason, Dr. Blake Woodside interviewed Mr. Levesque at some length. He has not provided a medical report nor at this point is it the suggestion of the Defendant that he will provide one. Subsequent to his interview, Dr. Blake Woodside talked to the substitute for his treating psychiatrist, Dr. Rocheleau, who was not available. The concern that Dr. Blake Woodside raised was the fact of suicidal ideation and also of primary concern was the fact that he had suggested that he wished to blow up the Defendant and some of his equipment. The matter was left with the substitute psychiatrist.
[5] Inexplicably, a week later Dr. Blake Woodside called the Defendant’s solicitor to advise of the threat to his client and the business that owned the motor vehicle. As a result of this, after some discussions, the solicitor for the Defendant called the Ontario Provincial Police. The Police in turn arrested and questioned Mr. Levesque on the basis that a threat to cause bodily harm et cetera might be a live issue. Apparently some time later he was released.
[6] It is now the Defendant’s position that they wish another independent medical examination as a result of the fact that no real independent medical examination has taken place since the examination, through a series of errors, was conducted by an unretained psychiatrist who did not possess the subspecialty that the Defendants wished to avail themselves of for the purpose of trial. The Plaintiff Mr. Levesque is resisting this further examination.
Analysis
[7] The Plaintiffs’ argument is as follows. They first argue that an assessment took place by a psychiatrist and therefore a further assessment is not necessary. They then indeed argue that, if a further independent medical examination is required, the analysis has to take place as required for a subsequent medical examination. That test is found in Jeffrey v. Baker, 2010 ONSC 5620, [2010] O.J. No. 4415, at para. 12 citing Sonny v. Sonnylal, 2010 ONSC 113, [2010] O.J. No. 365 at para. 3 : “The tests that are to be applied in determining whether or not to compel a plaintiff to attend at further defence medical examinations are necessity, fairness, and prejudice.”
Necessity
[8] Therefore the first part that the Court must consider is one of necessity. Here it is argued by the Plaintiff that it is not necessary because the Defendant is already in possession of other independent insurance benefit reports that are outlined in his factum. However, the court notes that under the amendment to rule 53 concerning particularity under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, it would seem that there is not much issue in this particular case that the prior reports are not compliant with the new stipulation in rule 53.03. Therefore those prior reports are, for the purposes of trial at least, of doubtful utility.
[9] A further argument made by the Plaintiff is that, simply put, the Plaintiff himself has been examined by a psychiatrist who was chosen by the Defendant. However, the court notes that this was not the psychiatrist who was retained. When we consider the facts with respect to the letters, et cetera, it is clear that various errors were made with respect to sending this person to the wrong Dr. Woodside. It is, however, the court’s view that because of the peculiarity or strangeness of the situation, the fault does not lie at the feet of the Defendant or indeed either party. Clearly it is an error that is explained in the Defendant’s material. Indeed it is extremely unfortunate that this occurred and the likelihood of repetition of this sort of error is close to nil. It is the court’s view that a medical examination by a psychiatrist with a forensic background would be necessary in this particular case, particularly when we consider the case that is being put forward by the Plaintiff in that the significant symptoms are of a psychiatric or psychological deficit. Clearly from the jurisprudence on s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43. the defence has a right to a medical opinion to bring forth its point of view or to bring forth evidence before the trial forum. In this particular case, the Defendants wish to have an expert that they consider to have the appropriate expertise to conduct that examination. Clearly it is their position that Dr. Blake Woodside does not, but Dr. Scott Woodside would have. They have been forthright in this view. However, this position provides another difficulty for them as, on the basis of that position, the Plaintiff may at trial seek to exclude the opinion of Dr. Blake Woodside, he not having the appropriate expertise to render an expert opinion. When we consider the fact that it is without controversy that a defendant has a right to have an independent medical examination take place before a specialist of his choice, the necessity has been made out. Indeed it is the court’s view that, given these peculiar fact circumstances, no real independent medical examination has been carried out and for those reasons alone the matter should be allowed and a further independent medical examination should be ordered.
Fairness
[10] However to continue, we must consider the fairness principle. Clearly fairness and necessity in these particular facts are tied up together. If the analysis is to be that there is a psychiatric examination extant, that is to say the examination of Dr. Blake Woodside, as said from the previous paragraphs, fairness may itself dictate a further examination in that because of the Defendant’s position as to the expertise of Dr. Blake Woodside, the report itself, if generated, would not be allowed. Moreover, with regard to the litigation itself, i.e. the controversy over the psychological and mental sequelae of the accident, it is only fair that the Defendant be allowed an independent medical examination to generate a report that would be necessary to bring their own point of view before the trial judge. Also as said before, with respect to the prior Insurance Act, R.S.O. 1990, c. I.8 psychiatric assessments, they would likely not be available due to the provisions of rule 53.03. Therefore on the basis of fairness such a further examination should be ordered.
Prejudice to the Plaintiff
[11] The argument made by the Plaintiffs that is the most telling is the fact that there is a real risk of serious harm to Mr. Levesque if another psychiatric assessment is ordered. In his various affidavits filed from psychiatrists and psychologists, they have expressed the opinion that there is a real risk of harm to him if ordered to attend another psychiatric assessment. Apparently Mr. Levesque has been hospitalized on five separate occasions for suicidal ideation since April, 2009 after the accident. This includes a hospitalization in 2009 after a Dr. Ken Suddaby did an examination for the insurance carrier. There is also the fact that, after the examination with Dr. Blake Woodside, Mr. Levesque was arrested by the Ontario Provincial Police and has therefore suffered further upset as a result of this. It is also noted that after two prior Insurance Act independent assessments he was hospitalized on two occasions. It is argued that therefore on balance the prejudice, being the risk of harm, would outweigh any benefit of an assessment. The Plaintiff urges an analysis of D. v. Phillips, 2003 ABQB 832, 350 A.R. 24, a decision of Clackson J., at para. 12. There the analysis set forth is as follows:
In my view the proper test in cases such as these involves balancing the plaintiff’s right to be safe and secure against the defendant’s right to challenge the plaintiff’s assertions. That balance would weigh against the plaintiff where the risk of harm is small and the harm is most likely trifling or transitory. The balance would weigh against the defendants seeking a defence medical where the risk of harm is great and the harm is most likely quite serious. Continuing the analysis, where the risk of harm is great but the harm is likely trivial or transitory then the balance would favour compelling a plaintiff to submit to a defence medical. Where the risk of harm is small but real, and the harm is serious but not especially so, then the interest of the parties are in approximate balance and I think the defence medical should proceed. In that instance however, the Court should carefully define the process which will be utilized to obtain the independent assessment. Where the harm is especially serious, then even a small real risk is intolerable and a defence medical would be inappropriate.
[12] The Court also must consider the various reports of psychologists, particularly that of Dr. Seatter dated September 24, 2009, at page 4 where Mr. Levesque states he knows “what sort of thing to say at the hospital; hospitals are easy, you just lie to them and they let you go.” It is also noted at the Ottawa Civic Hospital, record dated April 29, 2009, at page 57, where Mr. Levesque admitted to having lied to the Civic staff on a prior admission to get discharged. Clearly the court must analyse the risk to Mr. Levesque. We have the statements made by the various treating psychologists and psychiatrists that there is a real risk of harm; however, it seems to the court that the real risk of harm is caused by Mr. Levesque’s own condition. When the various affidavits and medical records such as are available are considered, it seems the suicidal ideation and other concerns were found as part of the medical assessment and not caused by the medical assessment. Certainly the medical examination can be, in and of itself, annoying and intrusive. However, it seems to the court that the position opined by the Defendant that the psychiatric assessment be carried out in Ottawa and that it be arranged that his treating psychiatrist be available immediately after the examination, is a wise one. On that basis, it is the court’s view that the independent medical assessment shall go forward and that counsel shall arrange an independent medical assessment in Ottawa. As well, the examination should be arranged such that the treating psychologist or psychiatrist of Mr. Levesque’s choice should be available immediately afterward so that any sequelae from the examination can be dealt with.
[13] Clearly in this particular case the court is of the view that, because of the peculiar circumstances extant here, no real examination has taken place, and therefore for those reasons a further examination is ordered on this basis. The Court finds that with respect to the prejudice, any prejudice can be controlled by having a psychiatrist available to deal with Mr. Levesque immediately after the examination. For those reasons, such an examination is directed.
Costs
[14] Counsel may address me with respect to the matter of costs and the details of arranging and setting up the examination as outlined above within 30 days in writing, or if necessary they may return before me for further guidance with respect to the modality of the examination itself.
Mr. Justice Hugh R. McLean
Released: November 27, 2012
COURT FILE NO.: 10-49544
DATE: 2012/11/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Richard Levesque, Denise Levesque, Joey Levesque, by his Litigation Guardian Denise Levesque, Zachary Levesque and Crystal Levesque
Plaintiffs/Respondents
– and –
Pascal St. Louis Labelle and Waste Services Inc.
Defendants/Moving Party
REASONS FOR DECISION ON MOTION
Mr. Justice Hugh R. McLean
Released: November 27, 2012
[^1]: Lewis Carroll, Alice’s Adventures in Wonderland, as quoted in Collins Gem Dictionary of Quotations (London, 1965) at p. 107.