SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 09-44563

DATE: August 5, 2014

RE: WADIE NAROUZ, Plaintiff

AND:

DESJARDINS FINANCIAL SECURITY, Defendant

BEFORE: MASTER MACLEOD

COUNSEL:
Joseph Y. Obagi, for the Plaintiff

Colin S. Baxter, for the Defendant

HEARD: August 5th, 2014

ENDORSEMENT

[1] This is a motion within the context of a main motion to compel the plaintiff to attend two additional independent medical examinations. The main motion could not proceed today because of the preliminary issue.

[2] The preliminary motion before the court today seeks an order striking out portions of the affidavit of Michelle Groundwater and the report of Dr. Louis Bérard attached thereto. Alternatively the plaintiff seeks an order permitting cross examination of Dr. Bérard.

[3] The issue is whether a moving party seeking to use a medical report as evidence on a motion for further physical or mental examinations is tendering expert evidence? If so, is it appropriate to attach the expert report to the affidavit of a law clerk or should there be an affidavit of the expert? In any event should the responding party have the right to cross examine the expert?

[4] For the reasons that follow, I have concluded that for the purpose of the motion the defendant is not relying on an expert opinion and the relief requested is disproportionate to the use to be made of the report at this stage of the proceeding. The preliminary motion is dismissed and the main motion will proceed on October 16th, 2014; a date agreed between counsel.

Background Facts

[5] This litigation is an insurance dispute concerning a long term disability policy. The issue at the heart of the litigation is whether or not the plaintiff is totally disabled within the meaning of the policy. He no longer works in the type of work he did for most of his working life but he does do some work in a pawn shop and a real estate investment company in which he holds ownership interests.

[6] The plaintiff has obtained an expert vocational assessment from Mr. Ross Skirda. That report opines that the plaintiff is completely disabled from pursuing any occupation for which he is reasonably qualified.

[7] The defendant has required the plaintiff to submit to a medical examination under s. 105 of the Courts of Justice Act. The result is the report of a psychiatrist, Dr. Bérard. Dr. Bérard concludes that the plaintiff is not suffering from a psychiatric disability but states that he is not able to assess the extent of chronic pain. In particular his report contains the following:

« Je laisserai aux spécialistes de la clinique de la douleur ou du système musculo-squelettique le soin de commenter les limitations découlant des problèmes musculo-squelettiques (bursite, tendinite, capsulite, dystrophie sympathique reflexe). »

[8] This paragraph is a fairly standard declaration by which the expert self-limits the scope of the report to matters within his core expertise. On the argument of the main motion the plaintiff will object to the defendant seeking to subject the plaintiff to an assessment by Dr. Houle who is a neuropsychologist specializing in chronic pain but the objection does not turn on the scope or accuracy of Dr. Bérard’s competence or ability to comment on limitations flowing from musculoskeletal problems. This is simply the psychiatrist limiting the scope of his report.

[9] The more problematic paragraphs of the report are the paragraphs in which the psychiatrist recommends additional assessments and tests. Mr. Obagi argues that these paragraphs are an opinion by the doctor that additional testing is required. Those paragraphs read as follows:

« En définitive, c’est une question d’appréciation des faits appartenant strictement au juge que de décider si les activités de préteur sur gage de M. Narouz sont compatibles ou pas avec la notion d’invalidité totale. »

« Finalement, si l’on ignore ce fait et que l’on se contente strictement de considérer les choses cliniquement, je pense que compte tenu de la complexité de ce cas, il faudrait obtenir une évaluation fonctionnelle objective par un ergothérapeute qui pourrait constater globalement quelle est la véritable capacité à fonctionner de M. Narouz. »

« Le document produit par M. Skirda est véritablement une évaluation d’employabilité qui considère de nombreux facteurs non médicaux comme la maitrise des langues officielles ou encore la formation professionnelle de M. Narouz. »

« Une autre évaluation qui m’apparaitrait extrêmement pertinente serait la passation d’un test MMPI avec une échelle de validité qui permettrait de jauger dans une certaine mesure l’authenticité avec laquelle M. Narouz se présente aux évaluateurs. »

[10] There is no dispute about what the report says. The full report, not just those selected paragraphs, is available to Mr. Obagi. The basis for this preliminary motion is the assumption that for the court to give weight to the report as justification for ordering an additional medical examination, the report must be received as an expert opinion.

Analysis

[11] Section 105 of the Courts of Justice Act provides for an order for an examination by a health practitioner as defined (doctors, dentists and psychologists). The court may also order additional medical examinations. Traditionally in the jurisprudence one examination was generally permitted automatically and additional examinations required justification on the one hand and a consideration of the burden on the plaintiff on the other. To order an examination by a person who was not a health practitioner it was generally necessary to show that the proposed examination was in the nature of a diagnostic test required by the health practitioner to complete his or her own assessment.[^1]

[12] For these reasons evidence that the physician required additional testing or assessment to complete an opinion or to make treatment recommendations has generally been held to be relevant and necessary.[^2] While a request for expert testing made by the physician is therefore an important fact, Mr. Obagi was not able to refer me to any case in which the physician’s view that adjunct medical or paramedical testing was necessary had been treated as expert testimony.

[13] I should be noted that while the jurisprudence under s. 105 of the Act remains good law, it may no longer be necessary to filter every request for additional examinations through the narrow window of that provision. Recently the Divisional Court has held that there is inherent jurisdiction in the court to order a plaintiff to submit to a physical examination and that this jurisdiction exists independently of s. 105. Pursuant to this jurisprudence, if the justice of the case demands it, an assessment such as a functional abilities assessment may be ordered even if it is not ancillary to the report of a defined health provider.[^3]

[14] This evolution in the law is of no real moment on this motion. The question remains whether the fact that Dr. Bédard believes that personality testing and an assessment by an occupational therapist are required is or should be an expert opinion?

[15] Mr. Obagi refers to various decisions of the court to the effect that the proper way to introduce expert medical testimony on a motion is either by an affidavit from the health practitioner or perhaps by serving a report under s. 52 of the Evidence Act. In particular there is a decision of Strathy J. (as he then was) in which he holds as follows:

“A party intending to rely on the opinion of an expert on a summary judgment motion must put the evidence forward in a manner that will permit cross-examination of the expert. The expert may either set out the substance of the report in affidavit form or may swear an affidavit appending his or her report and swearing to its truth …”

“There may be an exception in the case of medical reports where notice has been properly served in compliance with s. 52 of the Evidence Act … If proper notice is given under s. 52, the opposing party will have an opportunity to cross-examine the expert prior to the hearing of the motion.” [^4]

[16] It is true that this and other decisions cited by the plaintiff are summary judgment motions. In those cases the validity and strength of the expert opinion necessary to succeed at trial are central considerations and of critical importance in deciding whether or not there is a genuine issue requiring a trial. That however speaks to the need to rely upon the opinion of the expert and therefore to admit it as expert testimony and not to the mechanism for doing so. I agree with the plaintiff that the dicta of Strathy J. cited above is of more general application. If a party seeks to tender expert evidence on a motion then the report cannot be simply attached to an information and belief affidavit. To tender expert testimony, the expert must be made a witness and will be subject to cross examination.[^5]

[17] An information and belief affidavit is appropriate when the only purpose of the affidavit is to attest that the report was prepared and received and says what it says. This is analogous to the hearsay test although hearsay is admissible on a motion.[^6] The question is whether the medical report is introduced simply as evidence that there is an expert report and the expert has made a request for additional testing as argued by Mr. Baxter or as argued by Mr. Obagi is the court being asked to decide the motion on the basis of an expert opinion? In the latter case, he argues, the evidence must be introduced in a manner that permits the opinion to be probed through cross examination.

[18] I agree with the premise but not the conclusion. If the court is asked to accept that a scientific or medical theory is correct and to decide in a particular way because of that conclusion then the evidence must be properly before the court as expert testimony. In this case, the court is only being told that Dr. Bérard wishes to have more testing done to inform his opinion. The court is not being asked to accept that the need for such testing is scientifically accurate.

[19] There are numerous situations in which opinions are heard by the court without those opinions attracting the formal requirements for admission and utilization of expert testimony.[^7] The doctor’s wish to have this additional information in order to formulate an opinion is of course open to challenge on various grounds and is only one factor to be considered by the court. I see no need to order cross examination of the doctor. That would be a disproportionate step and would effectively provide the plaintiff with a right of discovery against the expert that is not normally available under our rules.

[20] In conclusion I find that the purpose of attaching the medical report to the affidavit is simply to put the contents of the report before the court and not to ask the court to rely upon the expert’s opinion. As such it need not be introduced by the means described by Strathy J. in Dupont, supra. and it does not give rise to a right to cross examine the expert.

[21] I did not hear counsel on costs but as I will be hearing the main motion, I will defer the costs of the preliminary motion until after the main motion is argued. That motion will be returnable before me on October 16th, 2014 at 10:00 a.m. and a full day is reserved.

August 8th, 2014

Master MacLeod

[^1]: See as an example Scissons v. Lajoie (2008) 2008 114 (ON SC), 56 C.P.C. (6th) 63 (S.C.J.) which summarizes the jurisprudence as of 2008.

[^2]: Nutley v. Cooper (2008) 66 C.P.C. (6th) 7 (S.C.J.)

[^3]: Ziebenhaus v. Bahlieda 2014 ONSC 138 (Div.Ct.) See also Vanderridder v. Aviva Canada Inc. 2010 ONSC 6222; (2010) 7 C.P.C. (7th) 219 (S.C.J.)

[^4]: Dupont Heating & Air Conditioning Ltd. v. Bank of Montreal 2009 2906 (ON SC) (S.C.J.) @ paras 51 & 52

[^5]: See for example in Caputo v. Imperial Tobacco Ltd. (2002) 25 C.P.C. (5th) 78 (Ont. Master)

[^6]: Rule 39.01 (4)

[^7]: R. v. Graat 1982 33 (SCC), [1982] 2 S.C.R. 819 (S.C.C.); R. v. Mohan 1994 80 (SCC), [1994] 2 S.C.R. 9 (S.C.C.)