Galea v. Firkser et al.
[Indexed as: Galea v. Firkser]
Ontario Reports
Ontario Superior Court of Justice,
McDermot J.
March 20, 2013
115 O.R. (3d) 150 | 2013 ONSC 1666
Case Summary
Civil procedure — Discovery — Medical examination — Defence counsel in personal injury action based on alleged soft tissue injuries arranging for defence medical examination by neurologist before plaintiff had delivered any medical reports — Plaintiff's counsel subsequently obtaining reports from orthopaedic surgeon and physiatrist — Defendant moving for order for further defence medical examination by physiatrist — Motion granted — Trial fairness requiring that defendant be given opportunity to respond to reports proffered by plaintiff — Defendant not required to show change in circumstances or to file medical evidence as to need for report. [page151]
The plaintiff brought an action for damages for soft tissue injuries allegedly suffered in a motor vehicle accident. The statement of claim was issued in 2006 and the statement of defence was issued in 2009. Before the plaintiff had delivered any medical reports, defence counsel arranged for a defence medical examination by a neurologist in 2001. The plaintiff subsequently obtained reports from an orthopaedic surgeon and a physiatrist. The defendant moved for an order requiring the plaintiff to attend a further defence medical examination, this time by a physiatrist.
Held, the motion should be granted.
Trial fairness required that the defendant be given an opportunity to respond to the reports proffered by the plaintiff. The fact that the defence might regret using a neurologist instead of a physiatrist for the first defence medical did not mean that this was solely an issue of matching reports. That was especially so where the matter had not been speedily prosecuted by the plaintiff. The defendant did not have to show a change in circumstances or file medical evidence as to the need for the report, as this was effectively the defendant's first opportunity to respond to the plaintiff's medical evidence.
Cases referred to
Bonello v. Taylor, [2010] O.J. No. 4432, 2010 ONSC 5723, 100 C.P.C. (6th) 399 (S.C.J.); Chiarelli v. Wiens, 2000 3904 (ON CA), 2000 CarswellOnt 280 (C.A.); Fehr v. Prior, [2006] O.J. No. 5244, 40 C.P.C. (6th) 381, 154 A.C.W.S. (3d) 326, 2006 CarswellOnt 8443 (S.C.J.); Francescutto v. Bojsic, 1999 CarswellOnt 294 (Gen. Div.); Jones v. Spencer, 2005 CarswellOnt 1531 (S.C.J.); MacRae v. Dreuniok, [2007] O.J. No. 3283, 52 C.P.C. (6th) 104, 159 A.C.W.S. (3d) 801 (S.C.J.); Mason v. MacMarmon Foundation, [2011] O.J. No. 4794, 2011 ONSC 5823, 2011 CarswellOnt 11694 (S.C.J.); Moore v. Royal Insurance Co. of Canada, 2006 CarswellOnt 231 (S.C.J.); Rysyk v. Booth Fisheries Canadian Co., 1970 510 (ON CA), [1971] 1 O.R. 123, [1970] O.J. No. 1628, 14 D.L.R. (3d) 539 (C.A.)
Statutes referred to
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 105 [as am.], (2), (4)
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 33, 33.02(2), 48.04(1), 53.03(2)
MOTION for an order requiring the plaintiff to attend a further defence medical examination.
George Siota, for plaintiff.
Neil Searles, for defendants.
Endorsement of MCDERMOT J.: —
Introduction
1This was a motion brought by the defendants for an order requiring the plaintiff, James Galea, to attend at a defence physiatrist medical examination. As the defendants have already obtained a defence medical report in these proceedings, [page152] the requested examination requires leave of the court pursuant to s. 105(4) of the Courts of Justice Act and rule 33.02(2) of the Rules of Civil Procedure. The plaintiff objects; as stated by Mr. Siota during argument, it is the position of the plaintiff that this is nothing other than a case of buyer's remorse and a further examination is both intrusive and unnecessary.
2As this matter has been set down for trial, leave to bring this motion is required under rule 48.04(1) of the Rules. When that issue was raised during argument, Mr. Siota on behalf of the plaintiff indicated that he had no objection to leave being granted. The defendants have leave to proceed with this motion on consent.
3For the reasons set out below, I have permitted the additional defence medical as requested.
Background Facts
4This is an action which can be described as being "long in the tooth". The accident on which the claim is based occurred on September 18, 2004, when a basketball net on the roof of Jeffrey Firkser's vehicle flew off into the path of Mr. Galea's vehicle. The plaintiff's vehicle rolled over into the ditch; Mr. Galea suffered injuries which he states are severe and have caused ongoing pain and discomfort.
5The statement of claim was issued nearly two years after the accident, on September 13, 2006. Thereafter, little took place until the statement of defence was issued on March 6, 2009 and discoveries were held on October 2, 2009. Because of the time it took to get this matter to trial, the matter was administratively dismissed on September 16, 2011; it was restored a month later by consent order of Eberhard J. The matter has been finally scheduled for trial by jury at the sittings in Newmarket commencing May 13, 2013; a pre-trial will be held on April 22, 2013.
6This injury was what is colloquially known as a "soft tissue injury" and is largely based upon the plaintiff's complaints of pain emanating from his neck, shoulder, back and chest. Because of these complaints, defendants' counsel at the time, Hans Dickie, Q.C., arranged for a defence medical examination by a neurologist, Dr. Upton, which took place on March 9, 2011. Mr. Siota consented to the examination "on the basis that it will be attended as if pursuant to an Order under Rule 33 of [page153] the Rules of Civil Procedure and Section 105 of the Courts of Justice Act". Dr. Upton conducted a full physical examination and concluded that Mr. Galea had "recovered from the effects of the accident of September 18, 2004". The report came down in favour of the defence position and stated that there was no "serious impairment of any important physical, mental or psychological function".
7In response, plaintiff's counsel recently obtained two reports, one dated October 25, 2012 from Dr. Rick Zarnett, who is an orthopaedic surgeon, and a second report dated November 5, 2012 from a physiatrist named Dr. Samuel Wong. Dr. Zarnett conducted a physical examination, and concluded that Mr. Galea had "an impairment" as a result of the accident "on an indefinite basis". Dr. Wong was, if anything, stronger in his opinion; he stated that Mr. Galea had injuries as a result of the motor vehicle accident which "are permanent in nature with the likelihood of improvement being highly unlikely". It is to be noted that although Dr. Wong's report was prepared in November 2012, it was ultimately not served on defendants' counsel until January 18, 2013.
8As well, Mr. Galea has proffered a report from his family physician, Dr. Kakavand dated December 22, 2011; although Dr. Kakavand will not qualify as an expert and cannot provide an opinion, he will testify as to Mr. Galea's present medical condition as set out in that report.
9As a result, the defendants now wish a further medical examination, this time by a physiatrist, Dr. Soric. Mr. Searles states that a physiatrist is better able to speak to the issue of muscle and soft tissue pain than is a neurologist and that Dr. Soric's specialty deals with muscle pain which is in issue in this matter. He confirmed to some extent the allegation of "buyer's remorse" insofar as he admitted that he would not have chosen a neurologist to conduct the defence medical as had his predecessor on the file.
10Both counsel did all they could to make their respective positions more palatable. Mr. Siota on behalf of the plaintiff undertook not to call his orthopaedic expert so that there would be no issue of "safety in numbers" of expert witnesses. Mr. Searles, on the other hand, stated that he had an appointment available with his physiatrist on March 27 or April 4, 2012 and that a report would be ready within five business days. He noted that the trial would not be delayed and the report would probably be ready in time for the pre-trial. He also initially undertook to use the Soric report at trial and to not use the Upton report; later, he amended this undertaking on the record that he would use one report only, but he wished, as had his opponent, the opportunity to choose which report that he wished to use.
Analysis
11The authority for a defendant to obtain a medical examination of the plaintiff in a proceeding lies under s. 105 of the Courts of Justice Act. Under s. 105(2), where a party's physical or mental condition is in issue, "the court . . . may order the party to undergo a physical or mental examination by one or more health practitioners". A second report may be obtained by motion under s. 105(4). Under rule 33.02(2), a second defence medical examination may be ordered "on such terms respecting costs and other matters as are just".
12It is apparent from the reading of the cases that the onus is on the moving party, in this case the defendants, to satisfy the court as to whether a further medical examination is warranted: see Jones v. Spencer, 2005 CarswellOnt 1531 (S.C.J.), at para. 14; and Francescutto v. Bojsic, 1999 CarswellOnt 294 (Gen. Div.), at para. 16. A second medical report is not lightly ordered; generally, the defence is only entitled to one medical examination of the plaintiff: Chiarelli v. Wiens, 2000 3904 (ON CA), 2000 CarswellOnt 280 (C.A.).
13What are the criteria under which a further medical examination will be ordered? Numerous cases have canvassed this issue. Generally, the issue surrounds trial fairness: see Bonello v. Taylor, 2010 ONSC 5723 (S.C.J.), at para. 15; Rysyk v. Booth Fisheries Canadian Co., 1970 510 (ON CA); and Fehr v. Prior, [2006] O.J. No. 5244, 2006 CarswellOnt 8443 (S.C.J.), at paras. 7 and 9.
14The issue of trial fairness was commented on by R.D. Reilly J. in Fehr v. Prior, supra, at para. 7, as levelling "the playing field". But it is apparent to me from a review of the cases that it is not simply a numbers game; trial fairness concerns a defendant having an adequate opportunity of meeting the plaintiff's case in a particular matter.
15This is confirmed by most, if not all of the cases cited by counsel. None of the cases cited, as far as I could see, involved a situation, as in the present case, where a defence medical was obtained prior to those submitted by the plaintiff.
16I expect that the response of plaintiff's counsel may be that this is the defendants' problem...
[...continued verbatim exactly as in the source...]
Motion granted.
Schedule "A"
(i) The party seeking the order for a further examination must demonstrate that the assessment is warranted and legitimate, and not made with a view to delaying trial, causing prejudice to the other party, or simply corroborating an existing medical opinion;
(ii) A request may be legitimate where there is evidence that (i) the party's condition has changed or deteriorated since the date of a previous examination, (ii) a more current assessment of the plaintiff's condition is required for trial, (iii) the plaintiff served specialist reports from new assessors after the defendants had conducted their medical assessments, or (iv) some of the party's injuries fall outside the expertise of the first examining health practitioner;
(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...
(iv) Where the request is for the examination of the plaintiff by a person who is not a health practitioner, such as a rehabilitation expert, the defendant must demonstrate that the proposed examination is necessary as a diagnostic aid to the health practitioner who is conducting the defence medical examination;
(v) A request for a second examination must be supported by sufficient evidence to persuade a court of the need for the further examination...
(vi) While fairness, or "creating a level playing field", may constitute a legitimate reason for ordering a second examination, someone with knowledge of the evidence in the case must provide evidence of unfairness for the court to consider; and,
(vii) A court should consider whether the request for a further examination would impose an undue burden on the plaintiff in light of the number of examinations already conducted of her by the defence.
Notes
End of Document