Ananthamoorthy v. Ellison, 2013 ONSC 340
COURT FILE NO.: 07-CV-340541 PD3
DATE: 20130110
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: ANNA Ananthamoorthy, by her litigation guardian, JANAHIDEVY ANANTHAMOORTHY, JANAHIDEVY ANANTHAMOORTHY, personally and ANANTH M. KANDIAH, Plaintiffs
AND:
REBECCA ELLISON and RIDE MANAGEMENT LIMITIED, Defendants
BEFORE: Stinson J. (Orally)
COUNSEL: David S. Wilson, for the Plaintiffs/Responding Parties
Andrei Lezau, for the Defendants
HEARD: January 10, 2013
ORAL ENDORSEMENT
[1] This is a motion for:
(1) an order requiring the plaintiff Janahidevy Ananthamoorthy (whom I shall henceforth referred to as “Jana”) personally to attend at one or more additional defence medical examinations;
(2) an order compelling Jana to provide answers to all of her undertakings and to answer questions refused or taken under advisement at her examinations for discovery conducted on November 4, 2009 and September 15, 2010; and
(3) for an order striking the current trial date in this matter currently scheduled for February 4, 2013, less than 4 weeks from today.
[2] As to item 3, an order to strike the current trial date of February 4, 2013, in view of the imminence of that date, I decline to address that point. The correct way to do so is by way of an attendance before Justice Archibald, who is the Team Leader for the Long Civil Trials Team in Toronto in To Be Spoken To Court. It is Justice Archibald who oversees the timing of matters on the Long Civil Trials Team which is the team to which this case has been assigned.
[3] This is a motor vehicle lawsuit. The accident occurred in September 2005. This action was commenced in 2007. It was set down for trial by the plaintiffs in June 2010, when they filed the trial record. In September 2010, the Trial Office in Toronto sent to counsel for both sides a “Certification Form to Set Pre-Trial and Trial Dates”. The Certification Form is used in Toronto Region to enable the trial coordinators as part of the process to carry out their job to schedule pre-trial and trial dates. In turn, parties are asked to complete the form and return it, describing the type of case, the amount of time required for a pre-trial, the expected numbers of lay and expert witnesses, the estimated length of the trial, and other information. Both parties are expected to complete their portion of the form and return it so that the trial coordinator may proceed with the scheduling process.
[4] In the present case, plaintiffs' counsel completed the Certification Form in January 2011. It was not until several reminders from plaintiffs' counsel that counsel for the defendants did so in April 2011. By June 20, 2011, a trial date of February 4, 2013 had been agreed upon.
[5] The reason for the lengthy time between the Certification Forms being filed and the case being fixed for trial is largely a result of its being on the Toronto Long Civil Trials List, where the time out to trial is frequently 18 months to 2 years, depending on the estimated length of the trial. Here the trial was estimated by counsel to be 10 to 13 days.
[6] Although the pre-trial was scheduled for October 9, 2012, it was not fully conducted. Justice Archibald presided at the pre-trial directed plaintiffs' counsel to produce additional documents relating to clinical records, the remainder of Jana’s accident benefits file and her employment file. He directed the parties to arrange a further pre-trial in early 2013.
[7] At the pre-trial in October 2012, the defendants indicated an intention to move to conduct a "reply” medical examination of Jana. Justice Archibald directed them to file their motion by October 19, 2012. A previous defence medical had been conducted in early 2011 and the defence expert report by Dr. Cameron had been served in April 2011.
[8] The defendants served their notice of motion on October 18, 2012, returnable on January 10, 2013. Today, less than 4 weeks prior to the trial date, there is no evidence that the defendants sought an earlier date for their motion to be heard on an urgent basis.
[9] Although their notice of motion was served on October 18, 2012, the defendants did not serve their materials in support of their motion until January 3, 2013. They did so despite having been urged by plaintiffs' counsel to serve their materials earlier. Plaintiffs served their responding material 4 days later on January 7, 2013. The matter came on for argument before me today, January 10, 2013.
[10] Plaintiffs’ counsel raised a preliminary objection that the defendants had not sought leave to bring this motion as required by rule 48.04(1). Plaintiffs relied, among other authorities, on Paranitharan v. Alex Irvine Motors Ltd., 2011 ONSC 3104, and the case cited therein, Hill v. Ortho Pharmaceutical (Canada) Ltd., [1992] O.J. No. 1740 (G.D.), as authority for the proposition that a party who consents to an action being set down for trial must show a substantial or unexpected change of circumstances for leave to be granted.
[11] Plaintiffs' counsel also, quite properly, brought to my attention the decision of Justice Perell in Fromm v. Rajani, [2009] O.J. No. 3671. At para. 7 of that case, Justice Perell responded to a similar technical objection regarding a late motion by defendants for a further defence medical as follows:
In my opinion, however, rule 48.04(1) does not apply to the circumstances of the case at bar. The Defendants did not set the action down for trial, and I do not regard the fact that defence counsel completed the Certification Form as a part of the pre-trial conference process as their consenting to the action being placed on a trial list, which, of course, had already occurred.
[12] I agree with Justice Perell. The regime for setting actions down for trial today is different than it was in 1992 when Hill v. Ortho was decided. No longer do parties file Certificates of Readiness nor are they, as they once were, deemed to have consented to an action being set down for trial. Now any party may set an action down for trial under rule 48.02(1) by serving and filing a trial record. Thereafter, the case is placed on a trial list after 60 days. Pursuant to rule 48.06(1), the 60 days may be abridged if every other party consents. The language in rule 48.04(1) that imposes a requirement for leave to bring a motion upon any party who has consented to the action being placed on a trial list is thus a reference to consent under rule 48.06(1). It should not be confused with the Toronto Region Certification Form to set pre-trial and trial dates. In the present case, only the plaintiffs set the action down. The defendants did not consent under rule 48.06(1) to placing the action on a trial list. They therefore do not require leave under rule 48.04(1) to bring this motion.
[13] The preliminary objection is therefore dismissed.
[14] The substantive issue on this motion concerns the defendants' request that the plaintiff Jana be required to attend additional defence medical examinations. She has previously participated in a defence medical by Dr. Cameron leading to the report prepared by him dated January 21, 2011. At the pre-trial before Justice Archibald, defence counsel raised the issue of seeking a further defence medical examination and examinations. This motion resulted, as I have previously outlined.
[15] Rule 33.02(2) provides as follows:
The court may order a second examination or further examinations on such terms respecting costs and other matters as are just.
[16] The principles regarding requests for further medical examinations have been summarized by Justice David Brown in Bonello v. Taylor, 2010 ONSC 5723, [2010] O.J. No. 4432 at para. 16 as follows:
Although the determination of whether to order a second or further examination by a health practitioner must turn on the specific facts and equities of a case, a body of case-law has developed around when a second or further examination may be ordered under CJA s. 105 and Rule 33. The leading principles can be summarized as follows:
(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, 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;
(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. What constitutes sufficient evidence will vary from case to case. Some cases have suggested that need must be established by filing medical evidence, such as an affidavit from the first examining physician recommending a further examination by a health practitioner competent in another specialty. In other instances an affidavit from a lawyer or law clerk attaching medical reports has been utilized by the court. But, at the end of the day, determining whether the nature of the evidence filed is sufficient remains essentially an exercise of judicial discretion;
(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.
[Footnotes omitted]
[17] These principles have been discussed and applied in various other cases. I turn to their application in the present case.
[18] To begin with, I will quote the affidavit evidence filed by the defendants in support of this aspect of the motion. It is found in paragraphs 30 to 32 of the affidavit sworn by defendants' lawyer, which read in full as follows:
Indeed, leading up to the aborted Pre-Trial Conference, several expert reports were served on behalf of the Plaintiffs, none of which complied with the specific time requirements under Rule 53.03.
In addition, under cover of a letter dated October 2, 2012, Mr. Wilson served reports from treating doctors dated September 13, September 29 and September 30, 2012, along with a Loss of Income Report dated September 27, 2012.
After reviewing the 6" worth of recent productions, I have recommended to my principals that at least 3 additional defence medical assessments should be conducted on Janahidevy Ananthamoorthy, namely, assessments by a physiatrist, a psychiatrist and a neurologist.
[19] Some of this evidence requires comment. Paragraph 30 is inaccurate. All but one of these reports was a supplementary report, governed by rule 53.03(3). All of these were served well before 30 days prior to trial. Only one was a fresh expert report – served approximately 60 days prior to the pre-trial. It was a vocational assessment report, not a medical report. The defendants' motion makes no mention of the need for a vocational assessment of the plaintiff.
[20] As to para. 31, the medical documents mentioned there were reports from treating doctors, updating the plaintiff's status. The defendants' affidavit offers no insight as to the contents of these – or any of the other reports – to indicate what they revealed about the plaintiff's condition. More importantly, there is no evidence before the court to suggest that these reports (or the productions referred to in the subsequent paragraph, paragraph 32) disclosed evidence of a change or deterioration in the plaintiff's condition.
[21] As to para. 32 of the affidavit, this is merely a conclusion by the lawyer. A court cannot blindly accept it without more. The reasoning and facts underlying it are conspicuous by their absence. Moreover, this is merely what the lawyer recommended to the client. It is not a solid evidentiary basis upon which to evaluate the need for a further medical examination.
[22] Also noteworthy is what is lacking from the defence evidence: any proof of prejudice. There is no evidence whatsoever in the affidavit to support the conclusion that defendants will somehow be prejudiced or put in an unfair position if the order sought is not granted. While the defendants would like to advance that argument, it must be founded upon an evidentiary base that can be assessed and weighed by the court. Here there is nothing to assess or weigh.
[23] The defendants' evidence of prejudice may be contrasted with that of the plaintiff Jana who has filed a detailed affidavit explaining why she would experience significant prejudice if the trial were delayed. It goes without saying that an order granting a further defence medical or medicals would mean the loss of the trial date of February 4, 2013, a date that was set in June 2011. I make that comment in the context of the factors I must consider when evaluating the defendants' request for further medical examination. As I have earlier noted and explained to the parties, should the defendants wish to request an adjournment they will have to appear in To Be Spoken To Court before Justice Archibald.
[24] The evidence of the plaintiff describing her income and expenses and the hardships she believes she will encounter if the trial is delayed is detailed. There is no offsetting evidence from the defendants.
[25] I turn now to the specific factors listed by Justice Brown in Bonello v. Taylor:
(i) … the [further medical] assessment is warranted and legitimate, and not made with a view to delaying trial, …;
[26] To put it politely, the evidence on behalf of the defendants is "wafer thin". It consists of the very few paragraphs that I have quoted and is largely conclusory. This situation is comparable to that in Paranitharan v. Alex Irvine Motors Ltd., supra, where at para. 10, Master Muir said:
The defendants have provided no evidence from a medical practitioner. Rather, they simply rely on a lawyer's affidavit that contains nothing more than broad and general assertions that this further examination is necessary in the interest of fairness and to create a level playing field. No specifics are provided.
[27] Also apposite is the following comment by Justice Perell in Fromm v. Rajani, supra, at para. 15:
I also agree with and adopt to the case at bar Justice Cameron's comment at para. 9 of Goodridge (Litigation Guardian of) v. Corken:
There is no information before me to suggest that the defence will be unable to present expert evidence dealing with the nature and extent of the Plaintiff's injuries against the background of an underlying medical condition without a medical examination. There is nothing to preclude the defence from obtaining the advice of an expert, which will permit cross-examination at trial, or alternatively, to prepare a report and seek leave to call the expert to deal with it at trial.
[28] Another helpful comment is found in Suchan v. Casella (2006), 2006 20844 (ON SC), 81 O.R. (3d) 615 by Master Dash where at para. 6 he said as follows:
The moving party however must satisfy the court that additional assessments are relevant to the plaintiff's physical or mental condition that is in issue in the action. The moving party must establish that "a proposed medical examination is likely to produce information relevant to the action" … This requires "evidence regarding the purpose of the proposed tests or assessment, the identification of the tests or assessment to be performed by the expert, or how the tests or assessment relate to a medical issue in the case" ….
[Citations omitted.]
[29] Here the defendants' evidence fails this test.
[30] Finally, the following comment by Justice Colin Campbell in Abergel v. Hyundai Auto Canada, a Division of Hyundai Motor America, [2002] O.J. No. 4387 (S.C.J.) is also applicable (at para. 12):
The material before me does not identify why Dr. Rusk, the identified rheumatologist, is required to examine the Plaintiff to provide an opinion. However desirable it might be to have the assistance of a variety of specialists who can assist with the causation issue, the Court should expect at the very least some affidavit material from the expert or some other knowledgeable person that a physical examination is required to enable Dr. Rusk to provide a requested opinion.
There is no evidence in the present case from any defence doctor or any doctor at all to support the conclusion that a further medical examination is required to allow the defendants to present their case.
[31] I return to Justice Brown's list of factors in Brown in Bonello v. Taylor,:
(ii) (i) evidence that the party's condition has changed – there is no such evidence in the present case.
(ii) evidence that a more current assessment is required – again there is no properly admissible or reliable evidence on this point.
(iii) evidence that plaintiff has served specialist reports from new assessors – again, this is not the case here.
(iv) evidence that plaintiff's injuries are outside the expertise of the first examining health professional – this point is not addressed by the defence evidence.
[32] I need not comment on Justice Brown's factors (iii) and (iv) because they do not appear to me to be applicable here. Factor (v) describes the need for sufficient evidence on a motion such as this. I have already commented on the paucity of evidence here.
[33] As to factor (vi), a level playing field, again the evidence does not support a conclusion in favour of the defendants. To the contrary, the impact of granting the order on the timing of the trial and the resulting prejudice to the plaintiff is proven. This factor does not support the defendants' request.
[34] I will not comment on Justice Brown’s factor (vii).
[35] In light of my review of the applicable factors, I conclude that the defendants have failed to satisfy the prerequisites for an order under rule 33.02(2). I therefore decline to grant that relief.
Stinson J.
Date of the Oral Decision: January 10, 2013
Date of Release: January 15, 2013