COURT FILE NO.: 4534/98

DATE: 2014-04-10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KERI PLOUFFE, Plaintiff

AND:

JAMES BLACKMORE, Defendant

BEFORE: The Honourable Mr. Justice D.A. Broad

COUNSEL:
E. Savas for the Plaintiff

G. McKenna for the Defendant

HEARD: April 4, 2014

ENDORSEMENT

Background

[1] In this action the plaintiff seeks damages of $500,000 as well as punitive damages against the defendant on the basis of her claim that the defendant assaulted her in 1995, 1996 and 1997 while they cohabited as a couple. The trial is scheduled to be heard at the sittings of the court in Hamilton in May, 2014.

[2] On October 31, 2013 the defendant brought a motion seeking answers to certain questions refused or taken under advisement by the plaintiff on her examination for discovery, for an order granting leave to examine the plaintiff’s treating family doctor for discovery as a non-party and for an order that the plaintiff attend to undergo psychological testing as part of the independent medical examination of her conducted by a psychiatrist Dr. Philip Klassen in July 2013, or alternatively as a second independent medical examination.

[3] All of the issues on the motion have been resolved with the exception of the defendant’s request for psychological testing of the plaintiff. Due to various procedural steps and delays, the matter did not come on for hearing as a long motion until April 4, 2014.

[4] The plaintiff agreed that Mr. Savas should be permitted to argue the motion, notwithstanding that he had sworn the original affidavit in support of the motion as well as a supplementary affidavit, as the lawyer previously having carriage of the matter on behalf of the defendant, Michael Emery, was appointed as a judge of this court subsequent to the bringing of the motion.

[5] The defendant obtained an order from Justice Whitten on December 20, 2012 requiring the plaintiff to undergo an independent medical examination by Dr. Klassen and she attended for that examination on July 11, 2013. Dr. Klassen initially advised defendant's counsel that his independent medical examination would be more complete if the plaintiff submitted to psychological testing. He indicated that this was especially important given that the plaintiff's psychologist expert Dr. Gembora had previously given evidence that in or about 2009 she had destroyed all data from the psychological testing that she conducted of the plaintiff in 1999. The test results were relied upon by Dr. Gembora for the findings and conclusions she made in her report dated June 30, 1999.

[6] Justice Carpenter-Gunn made an interim order on October 24, 2013 requiring the defendant to serve a report by Dr. Klassen and his report was issued December 16, 2013. In his report he stated "while I feel that I had ample clinical opportunity to interview Ms. Plouffe, and had the benefit of some collateral information, I feel that it is nonetheless prudent to articulate issues in the assessment process that could, even if only to a modest extent, compromise the accuracy of my opinion." Under the heading "Availability of Collateral Information" Dr. Klassen referenced the likelihood of certain collateral information regarding the plaintiff which was not made available to him, including records of the number of care providers including a psychologist and a counselor. He also stated "I believe that it would also be helpful to have the opportunity to have a psychologist repeat psychological testing of Ms. Plouffe, for reasons that will be elaborated on below.”

[7] Later in his report, Dr. Klassen commented on what he viewed as "serious shortcomings" in the report of Dr. Glembora, and in particular, he observed that the results of Dr. Glembora’s psychological testing did not fit easily with what was known about the plaintiff.

[8] Following delivery of his report, Dr. Klassen was asked by defendant's counsel to identify which psychological tests he wished to have conducted on the plaintiff and whether the tests are "necessary, essential or vital" to the reliability of his opinion, or would just be helpful to his opinion. Dr. Klassen responded that he would leave the test selection to the psychologist Dr. Abramowitz, describing them as "diagnostic aids" and stated "I don't know if I would say ‘vital’ but I would endorse ‘very useful’ in getting a better opinion. It really has to do with the quality of what we can offer."

[9] In February 2014 it came to light that the raw data obtained from two of the tests conducted by Dr. Glembora, namely a Personality Assessment Inventory (PAI) and Trauma Symptom Inventory (TSI) were discovered on a computer hard drive, notwithstanding that all of the test results had previously been thought to have been destroyed in or about 2009.

[10] Dr. Abramowitz reviewed the newly rediscovered raw data from Dr. Glembora’s PAI and TSI tests and commented that "I think it would be of benefit to do some retesting/additional testing so as to better link up testing with the rest of the clinical picture.”

[11] By order of Justice Whitten, the plaintiff was given leave to cross-examine Dr. Klassen on the pending motion concerning the efficacy and need for the psychological testing. Dr. Klassen was examined on February 19, 2014. When asked on his examination what tests he feels that he needs, he responded that the emphasis would be on personality tests, including a PAI, as well as a Minnesota Multiphasic Personality Inventory (MMPI). He thought that a TSI might be less relevant, given that it is designed to sample a six-month window and that he was being asked to comment on the plaintiff as of 1999.

[12] When asked what he would expect to receive from the psychologist, Dr. Klassen responded that it would involve more than simply receiving the raw data from the tests but would also include Dr. Abramowitz’ synthesis of the test results with the other information. He stated that it would be desirable to ask Dr. Abramowitz to integrate the test results with the life history. This would involve Dr. Abramowitz providing a professional opinion regarding the plaintiff’s personality characteristics. Dr. Klassen stated that he was not qualified to carry out such an analysis of psychological test results, but that this was within Dr. Abramowitz’ area of expertise.

Analysis

[13] Section 105(2) of the Courts of Justice Act R.S.O. 1990, c. C.43 provides that “where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners." Rule 33.02(2) of the Rules of Civil Procedure provides that “the court may order a second examination or further examinations on such terms respecting costs and other matters as are just.”

[14] It was observed by Master Haberman in the case of Nelson v. Thiruchelvan 2005 4849 (ON SC), [2005] O.J. No. 743 (Master), at para. 21, that multiple defence medical examinations are not granted as a matter of course and that the general principle that emerges from the cases is that the moving party must provide evidence that addresses why they seek particular examinations and the basis for seeking that relief must be clear and compelling.

[15] In the case of Gravelle v. Pearson [2001] O.J. No. 281 (S.C.J.) Valin, J. cited the decision of Master Sandler in Trotter v. Cattan (1977), 1977 1225 (ON SC), 15 O.R. (2d) 800 (Master) for the proposition that a second or further medical examination is not a right but a discretionary matter and that the defendant must, on such an application, “present sufficient evidence to persuade a court as to the necessity for a second or further physical examination."

[16] Although it can be said that the purpose of the psychological testing of the plaintiff sought by the defendant to be carried out is to assist Dr. Klassen in formulating his opinion, in my view what is sought is different than such physical tests as MRI’s or bone scans such as I ordered the plaintiff to undergo in the case of Young v. Comay 2013 ONSC 7552 (S.C.J.). The order in that case was based on the principle set forth in Bellamy v. Johnson (1992), 1992 7491 (ON CA), 8 O.R. (3d) 591 (C.A.) that the rule respecting independent medical examinations contemplates that the examination will be carried out in the fashion that, in the judgment of the doctor, best facilitates the examination. Here what Dr. Klassen is recommending is not that he simply be provided with fresh data from updated psychological tests, which he would interpret in forming his opinion, but rather that a separate opinion from the psychologist Dr. Abramowitz be obtained. It is contemplated that, if the psychological testing is ordered, Dr. Abramowitz would be qualified as an expert to give opinion evidence at the trial.

[17] At its highest, Dr. Klassen characterizes the proposed psychological testing as "helpful" and "very useful" diagnostic aids. For her part, Dr. Abramowitz thought that the testing would be "of benefit." When asked directly whether the psychological testing would be considered to be "necessary/essential/vital", Dr. Klassen declined to go that far.

[18] In my view, the evidence of Dr. Klassen and Dr. Abramowitz falls well short of discharging the onus on the defendant to show that the basis for seeking the psychological testing and opinion of Dr. Abramowitz is “clear and compelling”, as required by the authorities.

[19] Moreover, it is noted that, notwithstanding that the plaintiff retained an expert psychologist, the defendant chose to retain a psychiatrist to conduct independent mental examination. The addition of an expert psychologist to testify on behalf of the defendant would have the effect of un-leveling the playing field with respect to expert testimony, which is a relevant consideration in the exercise of the court’s discretion on a motion of this nature (see Nelson v. Thiruchelvan at para. 21).

[20] It is also noted that requiring plaintiff to undergo fresh psychological testing would also inevitably result in a delay of the trial, as it is anticipated that the plaintiff would need to have Dr. Abramowitz’ report interpreting the results and integrating them with the plaintiff’s history reviewed and commented upon by her expert psychologist. This delay is not justified in circumstances where a clear and compelling need for the testing has not been demonstrated. In short, the interests of justice do not, in the circumstances of this case, call for this testing of the plaintiff to be undertaken.

Disposition

[21] For the foregoing reasons, the motion of the defendant that the plaintiff be ordered to undergo psychological testing by Dr. Abramowitz is dismissed.

[22] If the parties cannot agree on costs, the plaintiff may make written submissions as to costs within 14 days of the release of this Endorsement. The defendant has 10 days after receipt of the plaintiff’s submissions to respond. Such written submissions are to be forwarded to me at my chambers at 85 Frederick Street 7th Floor, Kitchener, Ontario N2H 0A7. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

D.A. Broad J.

Date: April 10, 2014