Court File and Parties
Court File No.: CV-10-15036
Motion Heard: 2013-12-16
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: William Nantais and SueAnn Nantais, Plaintiffs
AND:
Logan S. Lenarduzzi, Defendant
BEFORE: Master Lou Ann M. Pope
COUNSEL:
Ryan Steiner, for the Plaintiffs
Mary-Joe Renaud, for the Defendant
HEARD: December 16, 2013
Reasons for Decision
[1] The plaintiffs seek an order to amend the statement of claim which is not opposed by the defendant. The plaintiffs want to increase the claim for future housekeeping, home maintenance and medical rehabilitation expenses from $150,000 to $2,000,000 and the claim for past and future income loss and loss of earning capacity from $250,000 to $400,000.
[2] The defendant seeks an order allowing an occupational therapist to conduct an independent in-home assessment of the plaintiff, William Nantais, and an order to compel the plaintiffs to attend an additional examination for discovery to address the issues of future housekeeping, home maintenance and medical rehabilitation expenses given the proposed amendments to the statement of claim. The plaintiffs oppose this motion.
[3] This action arises out of a motor vehicle accident that occurred on August 27, 2008. In the statement of claim, it is alleged that Mr. Nantais sustained a permanent serious impairment of an important physical and psychological function.
[4] Examinations for discovery of Mr. Nantais took place June 20, 2011, December 12, 2011 and February 21, 2012. Mr. Nantais was questioned on the issues of future housekeeping, home maintenance, and medical rehabilitation expenses.
[5] The plaintiffs delivered recently a report from an in-home occupational therapist assessment conducted by Matthew Woodall. Subsequently, the plaintiffs delivered a future care cost report which set out Mr. Nantais’ housekeeping and home maintenance, attendant care and future care requirements. Karen Dalton estimated the present value of Mr. Nantais’ housekeeping and home maintenance, attendant care and future care costs at $1,819,655. These reports are the basis for the plaintiffs’ motion to amend the claim.
Further Examination for Discovery
[6] Rule 31.09 places a duty on a party who has been examined for discovery to correct or complete answers that were given on discovery where the party subsequently discovers that an answer was incorrect, incomplete or is no longer correct and complete.
[7] There is no evidence before the court that the plaintiff gave incorrect or incomplete answers at his examination for discovery. The defendant did not file the transcript of the examination for discovery of Mr. Nantais. Further, Mr. Nantais did not provide information in writing to correct or complete any of his answers.
[8] In preparation for the first examination for discovery, the defendant had in his possession the occupational therapy rebuttal report conducted in August 2009 prepared for the accident benefit insurer. The report provides background regarding Mr. Nantais’ reported functional abilities. The statement of claim also claims damages for loss of housekeeping ability and future medical rehabilitation needs.
[9] For those reasons, I reject the defendant’s submission that the plaintiffs’ original answers on discovery in relation to the subject damages are incomplete.
[10] I conclude that the defendant has not satisfied his onus under rule 31.09(2). The defendant’s motion is denied for a further examination for discovery.
In-Home Occupational Therapy Assessment
[11] There is no issue between the parties that s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43, does not grant the court discretion to order an occupational therapy assessment (“O.T. assessment”) because an in-home occupational assessment is considered a non-medical expert assessment.
[12] The jurisprudence on whether the court has inherent jurisdiction to order a non-medical assessment is divergent. Essentially, the basis for divergence of the courts’ views is whether s. 105 and Rule 33 are the answers to the inquiry or whether the court has inherent jurisdiction to make an order. There is no Court of Appeal decision settling the matter; however, in March 2013, the plaintiff in Ziebenhaus (Litigation guardian of) v. Bahlieda, 2013 ONSC 1397, was granted leave to appeal to the Divisional Court an order compelling Ziebenhaus to attend a defence vocational assessment with a vocational rehabilitation specialist. This court was advised that no date has been scheduled for the hearing.
[13] The defendant asserts that the more recent cases decided in 2012 and 2013 have held that a court has inherent jurisdiction to order a non-medical assessment.
[14] In my view, Justice Edwards in Ziebenhaus v. Bahlieda, 2012 ONSC 3787, 41 C.P.C. (7th) 183, ruled correctly, based on a summary of the law on this issue, that the court has discretion to order an assessment by a non-medical practitioner, as follows at para. 15:
From my review of the jurisprudence it is not necessary to come down on one side or the other of this debate. Even in those cases where the courts have looked to the jurisdiction found in section 105 of the Courts of Justice Act it becomes readily apparent that there is a greater tendency now to order an assessment by a non medical practitioner, where after a review of all of the evidence, the court can come to the conclusion that such an assessment is reasonably required and will not result in an inherent unfairness to the plaintiff.
[15] In ordering an in-home O.T. assessment in Lo Faso v. Guarantee Co. of North America, [2013] O.J. No. 4154, at paras. 4-7, the court held that fairness dictates that the defence should be in a position to present its evidence on this aspect of the case. Further, the court found that its inherent authority is not limited by the diagnostic aid requirement that some cases have placed on this kind of request or to limit the occupational therapist to an interview only. He further held that the court should have available the best and relevant evidence in order to do justice in the case.
[16] The plaintiff has put his functional limitations in issue, in particular, reaching, bending, standing for prolonged periods, and lifting and carrying heavy objects. The plaintiff’s in-home O.T. assessment provided a functional evaluation of Mr. Nantais’ alleged limitations to his shoulders, neck and legs relative to his allegations regarding his ability to complete his daily activities and the estimated cost of his future care.
[17] Neither of the defence independent medical assessors, orthopaedic and psychological, were of the opinion that Mr. Nantais had any impairment or disability as a result of the subject motor vehicle accident. As such, the plaintiffs submit that there is no medical basis for the defendant to be permitted an O.T. assessment.
[18] Undoubtedly, Mr. Woodall, the plaintiffs’ O.T., will be called to testify at trial as to Mr. Nantais’ functional limitations and Karen Dalton will be called to testify as to the costs of future care.
[19] In my view, the defendant ought to be able to address the issue of Mr. Nantais’ alleged limitations by retaining its own occupational therapist to assess Mr. Nantais in his home as the plaintiff did. The opinions of the defence medical experts to date, in my view, are not the only basis to order an O.T. assessment. Mr. Nantais’ functional abilities are a significant issue in this action and his claim for future care is as well significant now that they have been quantified at almost $2,000,000. In my view, to force the defendant to go to trial without his own O.T. assessment would be unfair by putting the plaintiffs at an advantage. A second in-home O.T. assessment will not inconvenience the plaintiffs unreasonably as they will not have to travel or incur any cost.
[20] This pre-trial conference has not been scheduled in this action. It is my view that a defence O.T. assessment may assist in settling this action.
[21] As such, I find that an in-home O.T. assessment by the defendant is reasonably required in the circumstances and it will not result in any unfairness to the plaintiff.
[22] For the foregoing reasons, the defendant’s motion that Mr. Nantais undergo an in-home assessment by an occupational therapist at the defendant’s expense is granted.
Disposition
[23] The following orders are hereby made:
The plaintiffs are granted leave to amend the statement of claim as set out in the draft amended statement of claim at Schedule “A” to the plaintiffs’ notice of motion dated September 12, 2013; and
The plaintiff, William Nantais, shall undergo an in-home assessment by an occupational therapist at the defendant’s expense.
Costs
[24] With respect to the plaintiffs’ motion to amend, the defendant conceded that the plaintiffs were entitled to the amendment. The defendant partially succeeded on his motion. The plaintiffs opposed all of the relief sought by the defendant. They successfully defended the motion with respect to one of the two orders sought. Had the plaintiffs consented to the O.T. assessment, this motion would have been shortened significantly and the costs would equally have been reduced. Therefore, the plaintiffs should have to pay the defendant’s costs in part. A reasonable amount, in my view, is $2,500 all inclusive, which shall be payable within 30 days.
Original signed by Master Lou Ann M. Pope
Master Lou Ann M. Pope
Date: December 23, 2013