COURT FILE NOs.: CV-05-299520 and CV-09-385734

MOTION HEARD: SEPTEMBER 16, 2013

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Peter Lalousis and Maria Lalousis et. al. v. Jopie Roberts et. al.

BEFORE: MASTER R.A. MUIR

COUNSEL: Emily Casey for the plaintiffs

Richard Bickford for the defendant Reza Baharmast in action CV-09-385734

REASONS FOR DECISION

[1] The plaintiffs bring motions in both of these actions for an order waiving the requirement that the plaintiff Maria Lalousis (“Maria”) submit to oral and medical discovery. In the alternative, the plaintiffs propose that Maria’s husband, the plaintiff Peter Lalousis (“Peter”) be examined on her behalf, either orally or by way of written questions. Only the defendant Reza Baharmast (“Baharmast”) is opposed. The other parties involved in these proceedings either consent to the relief sought or are unopposed on certain conditions.

[2] Maria was involved in two separate motor vehicle accidents. The first took place on March 24, 2004. The second accident occurred on November 15, 2007. Although it appears that the accidents resulted in very little property damage to the vehicles involved, the plaintiffs are nevertheless claiming very significant damages. Maria alleges that she has suffered serious, grievous and permanent physical and psychological injuries. The plaintiffs are claiming a total of more than $4,000,000.00 in damages in both actions.

[3] On May 30, 2013 I ordered that these two actions be tried together or one following the other as the trial judge may direct. I also fixed a tentative schedule for continued examinations for discovery, conditional upon my ruling on these motions.

[4] The plaintiffs argue that Maria should be relieved of a portion of her discovery obligations for the following medical related reasons:

• she is unable to respond appropriately to questions or interact with other persons with any degree of reason;

• she is unable to cooperate in the discovery process;

• the discovery process would increase Maria’s anxiety and symptomology;

• Maria has very little interaction with others and poor communication abilities;

• the medical evidence supports the conclusion that Maria is unable to participate in the discovery process.

[5] The starting point on any motion of this nature is to acknowledge that a party to litigation has a prima facie right to a full and complete discovery of any party adverse in interest. See McGowan v. Haslehurst, 1977 CanLII 1192 (ON SC), 17 O.R. (2d) 440 (H.C.) at page 441.

[6] Such discovery includes documentary production and the right to an oral examination if the examining party so chooses. It may also include the right to a medical examination where a party’s physical or mental condition is in question. See Rules 30, 31 and 33 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[7] A party’s discovery rights should be only be limited in the rarest of cases. The threshold to be met is a high one. See Botiuk v. Campbell, 2011 ONSC 1632 (S.C.J. – Master) at paragraph 43.

[8] A party seeking to avoid attendance at an oral examination for discovery for medical reasons has the onus of providing the court with “persuasive” or “compelling” medical evidence of a real potential that the party could suffer psychological damage. See Kidd v. Lake, 1998 CanLII 14714 (ON SC), [1998] O.J. No. 4078 (G.D.) at paragraphs 4 and 14. A temporary exacerbation of a party’s condition is not a sufficient justification for denying an opposing party its discovery rights. See Botiuk at paragraphs 60 and 61.

[9] I have carefully considered the medical evidence and the submissions of the parties. I am simply not satisfied that the plaintiffs have met the very high threshold applicable to a motion of this nature. I appreciate that there is a significant amount of evidence to suggest that Maria may be suffering from serious medical conditions. The medical reports from her various health care providers suggest that she suffers from post-traumatic stress disorder and severe depression. She has noticeable functional difficulties and has difficulty interacting with others. Maria apparently suffers from impaired attention and concentration, poor memory and hallucinations, among other conditions.

[10] What is not found in the medical evidence, however, is any statement that Maria would suffer any permanent psychological damage if she were required to attend at an oral examination for discovery or a defence medical examination. The only evidence touching upon the impact of attending an examination for discovery comes from Maria’s treating psychiatrist, Dr. Regina Liu. In her letter of May 9, 2013, Dr. Liu makes the following statements concerning an examination for discovery of Maria:

• she will not be able to go through an oral examination for the purpose of the discovery process;

• she could not provide written responses at this time either;

• it is uncertain that she has the capacity to instruct counsel;

• discovery would be psychologically detrimental.

[11] It is clear from Dr. Liu’s letter that Dr. Liu is of the view that an examination for discovery of Maria may be unproductive given Maria’s current condition. She may not be able to fully participate and provide responsive answers. It may also be stressful and cause Maria to become anxious. Indeed, Dr. Liu states that an examination for discovery would be psychologically detrimental. However, there is no indication that any of this would lead to permanent psychological damage. In fact, Dr. Liu specifically makes reference to the fact that in the past such anxiety triggers have caused “a worsening of her regressed state for several days”. Dr. Liu does not state that this “regressed state” would be permanent or even last for an extended period of time.

[12] It is clear from the evidence that Maria has had good days and bad days. In the past, she has attended medical examinations arranged by her counsel and has participated in those examinations, at least to the point where her physicians could prepare reports. In a capacity report dated May 17, 2012, a capacity assessor described Maria’s participation as “open and communicative, with good attention and no sign of confusion, disorientation or delirium”. Maria’s responses to questions from the capacity assessor were described as “lucid and insightful”.

[13] Moreover, I do not view Peter as being an appropriate substitute for Maria. Peter was examined for discovery on May 5, 2010. The transcript from that examination shows that Peter’s recollection of events was inconsistent. His evidence with respect to Maria’s medical conditions was unclear and less than complete. At one point he told Mr. Bickford that he would “have to ask her” (referring to Maria).

[14] The defendant Baharmast is facing a very significant claim. He is entitled to mount a full defence to the plaintiffs’ claims. As matters currently stand, Baharmast has had no oral discovery of Maria and no opportunity to conduct his own medical examination. Maria has been able to obtain several medical/legal reports which she will most likely rely upon at trial. At this point, it must be assumed that Maria will give evidence at trial. There is certainly no indication in the evidence that the plaintiffs will not be calling Maria as a witness.

[15] Baharmast is entitled to a full discovery of the plaintiffs. This right should not be denied except in the most compelling of circumstances. I cannot conclude on the evidence before me on these motions that such circumstances exist in connection with these proceedings.

[16] For these reasons, I am not prepared to make the extraordinary order requested by the plaintiffs. The plaintiffs’ motions are dismissed.

[17] I therefore order as follows:

(a) Maria shall attend at an oral examination for discovery on December 3, 2013 in accordance with my order of May 30, 2013;

(b) Maria shall attend at a psychiatric defence medical examination on a date to be agreed to by counsel;

(c) the plaintiffs’ motions are dismissed; and,

(d) if the parties are unable to reach an agreement on the issue of costs, they shall make brief submissions in writing by no later than October 18, 2013.

Master R.A. Muir

DATE: September 20, 2013