SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-08-0443-00
DATE: 2014 04 02
RE: BOZENA SIUDA v. SEFKI CUNAJ
BEFORE: EMERY J.
COUNSEL: Jeremy Dunn, for the Plaintiff/responding party
Brent Vallis, for the Defendant/moving party
HEARD: March 13, 2014
ENDORSEMENT
[1] The plaintiff suffered injuries when the motor vehicle she was operating collided with the motor vehicle owned and operated by the defendant on September 19, 2007.
[2] The plaintiff commenced her action on February 12, 2008. The defendant filed his statement of defence in March 2011. The action is now listed for trial in Brampton during May 2014.
[3] The defendant brings this motion to compel the plaintiff to attend a further independent medical examination with Dr. Mor, a psychologist.
[4] In his submissions, counsel for the defendant advised me that he has just learned from Dr. Mor that she will require 8 weeks to provide a report from any interview, examination or testing of the plaintiff if permitted by the court. This would in effect require that the trial of this action in May 2014 be adjourned to a later date.
[5] The plaintiff is a 50 year old female who essentially worked fulltime at or just above minimum wage before the accident. She now claims she cannot work at any occupation as a result of the injuries caused by the collision.
[6] By the end of 2012, she had been treated or examined by a battery of health care professionals. Included in these examinations was an independent medical examination by an orthopaedic surgeon retained by the defendant in April 2012.
[7] On January 3, 2013 counsel for the plaintiff served a medical report by Dr. Philip C. Miller and dated August 2, 2012. Dr. Miller had interviewed, examined and tested the plaintiff, and had also reviewed the numerous hospital records and medical opinions described in his report. In that report, he makes findings and draws certain conclusions that read in part:
Turning to issues pertaining to her residual employability, Ms. Siuda is suffering from a full-blown chronic pain disorder and associated sequelae associated with high levels of impairment in all levels of her life. This disorder prevents her from doing any labouring job, including her previous occupation as a cleaner and any of the other jobs that she has done in the past. She did work as a dining room manager at a restaurant, but no one is going to hire her in that position, the way she’s feeling and functioning. In other words, the way she is feeling and coping, she is not suitable for any occupation whatsoever…
[8] Dr. Miller gives an opinion at the conclusion of his report that the motor vehicle accident of September 19, 2007 has caused the plaintiff a psychological decompensation that has taken the form of a very severe and debilitating chronic pain disorder that has left her totally disabled.
[9] The defendant seeks an order from this court permitting Dr. Mor to interview, examine and test the plaintiff to provide a psycho-vocational assessment in view of the opinion expressed by Dr. Miller, the potential for a significant loss of income claim. The defendant states that this further independent medical examination is necessary to “level the playing field” in order to have all matching opinion evidence from experts before the court at trial. The defendant states that it would not be fair to require the defendant to proceed to trial without having the plaintiff interviewed, examined and tested by Dr. Mor for the purpose of calling Dr. Mor at trial. The defendant is saying that, in effect, to proceed to trial without allowing Dr. Mor the same opportunities given to Dr. Miller to prepare a matching report would prejudice the defendant’s right to a fair trial.
[10] A request had been made by the defendant for the plaintiff to submit to a further independent medical examination in September 2013, shortly before a scheduled pre-trial conference. Counsel for the plaintiff refused this request, without giving any reason for doing so. The action then proceeded to a pre-trial conference on October 6, 2013 before Justice Lemon, as scheduled.
[11] The plaintiff naturally takes the opposite view on the motion. Counsel for the plaintiff told the court that the affidavit of documents of the plaintiff contains disclosure on what the plaintiff earned before the accident occurred, and her earnings since the accident date. Counsel told of the defendant examining the plaintiff for discovery not once, but twice on how she is unable to work. Finally, counsel for the plaintiff described the numerous reports available to both sides on the plaintiff’s physical and psychological limitations, authored by doctors for both the plaintiff and the defendant, as well as records and reports from the plaintiffs accident benefit file.
[12] In his report, Dr. Miller opines that the plaintiff is unable to perform any occupation whatsoever was served on counsel for the defendant on January 3, 2013. It was never explained to me why the report dated August 2, 2012 was never served until January 2013, but counsel for the defendant did not make a point it. On February 6, 2013, the plaintiff submits to an examination that had previously been arranged by the defendant with Dr. Finkel, a psychiatrist, who wrote a report the same day. I was advised by counsel for the defendant that Dr. Finkel was not provided with a copy of Dr. Miller’s opinion. Dr. Finkel does not make any reference to it in his report.
[13] Subsequently, the defendant engaged Dr. Stewart, a neurologist, to conduct a paper review of records, data and opinions concerning the plaintiff provided by counsel for the defendant. Dr. Stewart issued a report dated October 3, 2013 without having seen the plaintiff. Counsel for the plaintiff states that the defendant did not elect to respond to Dr. Miller’s report until the eve of the pre-trial conference.
[14] The plaintiff submits that the defendant and his counsel have had ample opportunity to arrange examinations for the plaintiff in order to obtain matching reports with respect to her inability to earn income since the accident. Dr. French, the orthopaedic surgeon retained by the defendant, states in his report dated April 18, 2012 that “I was unable to find evidence of a residual, motor vehicle accident related, musculoskeletal impairment which, in my opinion, is severe enough to prevent Ms. Siuda from performing the physical demands of her jobs as a cleaner…” The report by Dr. Finkel in February 2013 concludes that “on the balance of probability, it is my view that Ms. Siuda does not suffer a serious impairment of an important mental or psychological function as a result of the accident in question…” Finally, there is the report by Dr. Stewart, concludes in his report dated October 3, 2013 after a review of all materials provided by the defendant that “I believe from a neurological point of view, she can return to her employment or similar work and carry on with her usual household duties and self-care.”
[15] From this review, counsel for the plaintiff argues that the defendant has already requested and received several matching opinions.
[16] Counsel for the plaintiff concedes that the proposed independent medical examination by Dr. Mor would, if permitted, fit within the kind of further physical or mental examination the court has the discretion to order under section 105(4) of the Courts of Justice Act.
[17] Counsel of the plaintiff also advised the court that the plaintiff is taking no issue with the qualifications of Dr. Mor to conduct such physical or mental examination, if permitted.
Analysis
[18] The defendant brings his motion under section 105(4) of the Courts of Justice Act that gives the court discretion to order further medical examinations of an injured party.
[19] It is of particular note that the onus is on the party seeking the further defence medical examination to satisfy the court that it is warranted: Jones v. Spencer [2005] O.J. No. 1539
[20] The exercise of judicial discretion to permit or refrain from making an order for a further physical or mental examination of the plaintiff must take into account the circumstances given in evidence on the motion. The issues are twofold:
Would it be unfair to require the defendant to proceed to trial without having the plaintiff interviewed, examined and tested by Dr. Mor to address the findings and conclusions made by Dr. Miller? and
Is the defendant’s motion made too late in view of the pending date for trial?
[21] The defendant has not persuaded me on the balance of probabilities that he would be unable to mount an effective defence without the proposed medical examination. The plaintiff has already undergone examinations by Dr. French and Dr. Finkel at the behest of the defendant. Now that the defendant has served the report of Dr. Stewart, it is clear that the defendant is comfortable with having an expert review records, data and the reports of other experts to provide opinion evidence about the plaintiff and various aspects of her claim.
[22] There is no reason why a registered psychologist like Dr. Mor could not conduct a similar review of all information available to the defendant at this time. Dr. Mor’s review would now include Dr. Miller’s report and any supporting documentation the defendant has obtained or may obtain between now and trial. This should not be taken to mean that a further report, whether it be by Dr. Mor or any other physician, would be admissible in evidence under the Ontario Evidence Act or the Rules of Civil Procedure. Whether Dr. Mor would be permitted to testify as an expert witness at trial is another question and one best left to the trial judge.
[23] I find myself in the same position as Justice Malloy in Fiorucci v. Delgado, [1999] O.J. No. 1380 when I say that I cannot determine whether allowing Dr. Mor to examine the plaintiff for a psycho-vocational assessment is critical for the proper conduct of Mr. Cunaj’s defence. It is not clear to me that an order requiring the plaintiff to be interviewed, examined and tested so that Dr. Mor can write another report on that basis is so critical to the defendant’s case that it would be unfair to force him to trial without it. I am mindful that a motion of this nature must be decided on its own facts. I have considered the factors that the court generally applies when exercising discretion, particularly those factors relating to prejudice and delay: Da Costa v. Fernandes, [2003] O.J. No. 1009 and Lihou v. VIA Rail, [2006] O.J. No. 4451. In my view, requiring her to go through the ordeal once again would only add insult to injury.
[24] On the delay issue, I note that the defendant has not requested an order under Rule 3.02(1) or under Rule 53.03(4) on this motion to abridge the time for service of an expert’s report under Rule 52.03(1) or (2). This could apply to the report of Dr. Stewart as well as the proposed report from Dr. Mor and therefore the defendant’s ability to call those experts to testify at trial.
[25] The decision of Master Brott in Younan v. Persaud 2011 ONSC 2129 speaks to how important it is for litigants to observe the time requirements under Rule 53.03, and the consideration of prejudice to a party if an independent medical examination is permitted out of time. Master Brott admonished counsel who ignore the rules around the delivery of expert reports concerning the time by which a report is to be served before the pre-trial conference. In Younan, the Master recognized that there will undoubtedly be circumstances where an order permitting a “late” defence medical examination might be permitted, but not where opposing parties will suffer prejudice.
[26] Prejudice can take the form of a trial date put in jeopardy of being delayed or postponed. In Sara Earley-Kendall v. Sirard 2007 ONCA 468, the defence had moved for an adjournment of a trial for the purposes of arranging a further medical examination of the plaintiff approximately seven weeks before trial. Justice Little dismissed that motion, noting the request for a defence medical was made late and apparently not necessary to continue settlement discussions. The defence then brought a second motion three weeks before the was to start for an order to permit the further medical examination of the plaintiff, which would have necessitated the adjournment of the trial. Justice Rady had this to say on dismissing the second motion:
... an adjournment request has already been entertained by the court and turned down. One of the reasons for the adjournment request was to permit defence medical examinations. I view this motion as very much the same thing although dressed up a little bit differently.
The defence has recently been able to arrange medical examinations now on an expedited basis, but there is no explanation as to why that could not have been done at some earlier stage. In my view, the defence has had ample time to arrange and conduct defence examinations. Any reports that would be generated, if I were inclined to grant the relief sought, would clearly run afoul of Rule 53. Those reports, in my view, would have the potential to derail the trial scheduled for October 17, 2005.
[27] The trial judge in Kendall granted leave to appeal the order of Justice Rady and the Divisional Court allowed the appeal. The Court of Appeal restored Justice Rady’s order, although the ultimate disposition of the appeal before the turned on the principle of issue estopped operating on the conclusive nature of the order that denied the original request for an adjournment.
[28] I find that the plaintiff will suffer prejudice by having her trial date pushed back any further. The defendant has not provided a reasonable explanation for the delay in seeking an order for a further physical or mental examination. The report of Dr. Miller was served on January 3, 2013 and yet the report was not given to Dr. Finkel a month later in time for his appointment to examine the plaintiff. The defendant did not even request the further medical examination he now requests until October 2013 and has brought this motion with trial was just eight weeks away. Having regard to the state of the trial lists in Brampton, this constitutes prejudice to the plaintiff if her trial for injuries and loss caused in 2007 is deferred to a later date in 2014 or even 2015.
[29] The motion is therefore dismissed.
[30] If the parties cannot agree on costs, the plaintiff shall serve written submissions as to costs within 7 days of the release of this endorsement on the defendant. The defendant shall have 7 days thereafter to serve written submissions as to costs on the plaintiff, and the plaintiff shall then have 3 further days to serve reply submissions as to costs, if any, on the defendant. Upon serving reply submissions or the time expiring for doing so, the plaintiff shall file all submissions as a package with the trial co-ordinator’s office at Brampton to my attention. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.
Emery J.
DATE: April 2, 2014
COURT FILE NO.: CV-08-0443-00
DATE: 2014 04 02
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: BOZENA SIUDA v. SEFKI CUNAJ
BEFORE: EMERY J.
COUNSEL: Jeremy Dunn, for the Plaintiff/moving party
Brent Vallis, for the Defendant/responding party
ENDORSEMENT
EMERY J.
DATE: April 2, 2014