SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 49674
DATE: 2014/12/02

RE: Nicole Hogarth, Paul Hogarth and Jessi Hogarth, Tonishia Hogarth, Joshua Hogarth, Liaam Hogarth and Portia Hogarth, by their litigation guardian, Nicole Hogarth (Plaintiffs)

• and -

Her Majesty the Queen in Right of the Province of Ontario represented by the Minister of Transportation for the Province of Ontario and General Motors of Canada Limited (Defendants)

BEFORE: Justice M. A. Garson

COUNSEL:
Karl Arvai, for the plaintiffs

Peter K. Foulds, for the defendant Her Majesty the Queen in Right of the Province of Ontario represented by the Minister of Transportation for the Province of Ontario

Michael Smith, for the defendant, General Motors of Canada Limited

HEARD: November 17, 2014

ENDORSEMENT

Introduction

[1] The defendant, Her Majesty the Queen in Right of the Province of Ontario represented by the Minister of Transportation for the Province of Ontario (“MTO”) brings a motion for:

(a) an order that the plaintiff Nicole Hogarth (“NH”) permit Reema Shafi, an occupational therapist, to attend at her home to complete a defence further cost of care assessment that was commenced on March 6, 2014, in the absence of Paul Hogarth or any person; and

(b) an order under Rule 33 of the Rules of Civil Procedure and s. 105 of the Courts of Justice Act, that NH attend a defence medical assessment with Dr. Donald Young, a psychologist.

Facts

[2] This action arises from a motor vehicle accident which occurred on Highway 402 on March 16, 2004, and allegedly resulted in injuries to NH.

[3] The trial of this action is scheduled for February 23, 2015.

[4] Counsel for MTO scheduled a defence medical assessment to take place with Dr. Young on March 18, 2014. NH did not attend the scheduled examination and has refused to consider future dates.

[5] NH earlier consented to participate in a future cost of care assessment with Reema Shafi, which took place at the home of NH on March 6, 2014.

[6] The assessment was scheduled to commence at 10:00 a.m. and to last between three and six hours. Reema Shafi was present for six hours but was unable to finish her assessment. She was delayed one hour due to weather.

[7] In correspondence dated March 19, 2014, Reema Shafi suggests the primary reason she was unable to finish her assessment was the frequent interruptions from Paul Hogarth, the spouse of NH. Reema Shafi also outlined the need to go through 62 itemized goods and services listed in the future care cost report of Ms. Gahagan (the report that she was responding to).

[8] Reema Shafi seeks an additional two hours to complete a physical, cognitive and functional assessment protocol.

Preliminary Matter – Rule 48.04

[9] Although not raised by either party, I drew the attention of the parties to Rule 48.04(1) which requires leave of the court to bring this motion.

[10] Both parties acknowledged that the rule was applicable in these circumstances and offered no explanation for why it was not addressed.

[11] MTO says trial fairness and the best evidence rule are sufficient to permit leave. They further argue that there has been a substantial change in circumstances since the trial date was set with new medical reports.

[12] Not surprisingly, NH says they should not be given leave.

[13] Given that NH did not raise the issue, that the matter is set for trial in less than three months, and that the parties are both present and ready to argue the matter, I am satisfied that trial fairness, an unexpected change in circumstances, and the need to avoid any undue further delays all weigh in favour of granting leave to MTO to bring this motion.

Analysis and The Law

(i) Future Cost of Care Assessment

[14] NH consented to this assessment. The sole issue is the reasonable length of time required to complete the assessment.

[15] There is no affidavit from Ms. Shafi articulating the reasons why she requires two hours of additional time to complete the physical, cognitive and functional assessment protocol. Her correspondence of March 19, 2014 is silent on this issue.

[16] Conversely, there is no affidavit from NH or her spouse outlining the specifics of what occurred on March 16, 2014. Rather, I am given a second-hand blanket denial of any interruptions by Paul Hogarth.

[17] NH suggests that Ms. Shafi breached her duties as an officer of the court and assumed the role of advocate with her intensive questioning. Again, this is presented through an affidavit of a law clerk.

[18] Clearly, the defendants have a right to respond to the future care costs report prepared by Ms. Gahagan for NH on December 12, 2012. However, this is not an unfettered right and is subject to reasonable limitations.

[19] There is ample medical reports and documented medical evidence available to Ms. Shafi. She was already present at the home of NH for six hours. Even factoring interruptions into the mix, she would have had many hours available to her.

[20] There is no evidence before me as to what has been assessed to this point and a very generic description of what remains to be assessed.

[21] The future care costs report of Ms. Gahagan appears to rely extensively upon documented medical evidence available to Ms. Shafi.

[22] There is no evidence before me as to why a physical assessment is required. Similarly, there are no reasons offered for conducting a functional abilities assessment, particularly in light of existing medical reports that do not suggest the need for such an evaluation.[^1] No functional abilities evaluation was conducted by Ms. Gahagan.

[23] In my view, the defendant MTO has failed to demonstrate that the proposed two hour continuation of the future cost of care assessment by Ms. Shafi at the home of NH (and in the absence of Paul Hogarth) is necessary in the interest of trial fairness of justice.

[24] I am mindful that the trial date is less than three months away. The events giving rise to the action are almost 11 years old.

[25] The discretion available to me under Rule 33.03 to determine this dispute must be exercised in accordance with securing the just, most expeditious and least expensive determination of this proceeding on its merits – see Rule 1.04.

[26] Although I accept that there is no hard and fast rule on timeliness, and affording little weight to the second-hand allegations of misbehaviour on both sides, I arrive at the conclusion that the additional time is not needed and that Ms. Shafi can prepare a report with the information she has received to date, coupled with the extensive medical reports and records available to her, including MH’s examination for discovery.

(ii) Defence Medical Examination by Mr. Young

[27] The combined effect of section 105 of the Courts of Justice Act and Rule 33 is to ensure that where a plaintiff puts her medical condition in issue, the defence is given a fair and reasonable opportunity to respond and test the allegations.

[28] The leading principles in determining whether a second or further examination by a health practitioner is required may be summarized as follows[^2]:

(i) The onus is on the party seeking the further examination to demonstrate that such assessment is warranted and legitimate, and not made with a view to delaying the trial or corroborating existing medical opinions.

(ii) Legitimacy may exist where:

(a) the party’s condition has changed or deteriorated since the last examination;

(b) a more current assessment is required for trial;

(c) new reports have been served by the plaintiff after the defendants conducted their medical assessments; and

(d) some of the injuries fall outside of the expertise of the earlier examining health practitioner.

(iii) Trial fairness operates as the guiding principle in determining whether the defendant is entitled to a fair opportunity to respond with expert evidence.

(iv) Requests for second or further examinations must be supported by sufficient evidence persuading the court of the need for such further examination.

(v) The court should consider whether requests for further examination would impose an undue burden on the plaintiff in light of examinations already conducted.

[29] In the case before me, it is necessary to focus on the evidentiary basis for the request. Simply put, I require evidence that the proposed examination is relevant and necessary to fairly assess the plaintiff’s physical or mental condition at issue in this action.

[30] This, in turn, requires a consideration of the experts previously retained by MTO and whether or not they are qualified to comment on the medical issue in question.

[31] NH has been assessed by a variety of medical professionals during the past decade. These include two neuro-psychologists, three psychologists and one psychiatrist.

[32] MTO now wishes NH to be seen by a psychologist, Dr. Young. The type of testing proposed would include a full day of various psychological tests.

[33] There is no affidavit from Dr. Young. Rather, in a letter to counsel for MTO dated April 15, 2014, he suggests an “in-depth psychological assessment” to explore her “motivation” in greater detail, and the “veracity” of her emotional and physical complaints.

[34] MTO further relies upon:

(a) Dr. Schnurr’s 2007 assessment where he found evidence of several mood-related conditions;

(b) Dr. Garner’s October 2012 assessment of evidence of “disabling emotional and cognitive problems”.

(c) Dr. Gottfried’s assessment of December 2012 where he found evidence of significant cognitive problems requiring treatment.”

[35] In response NH points out that:

(a) MTO has already conducted a defence medical examination by a psychiatrist, Dr. Hines, in January of 2013, who indicated that there was no evidence of any difficulty with concentration or memory of NH.

(b) Dr. Schnurr’s 2007 assessment explained that memory and concentration problems are common among pain patients and may be due to pain itself, medications, poor sleep or mood disturbance.

(c) Dr. Gottfried is a treating psychologist who is not qualified to diagnose a brain injury.

[36] Simply put, NH takes the position that any cognitive complaints are likely related to pain and related symptoms.

[37] The request for a further defence medical examination must satisfy me that such is necessary to enable MTO to fairly investigate and reasonably respond to evidence at trial.

[38] There is scant evidence before me that the requested medical examination will likely produce relevant and useful new information. In fact, it is arguable as to whether the mental health of NH is relevant to the material issues in this action. In his January 4, 2013 report, Dr. Hines, who conducted a psychiatric assessment on behalf of MTO stated at p. 10 of his report:

At the present time, I do not feel that any of Ms. Hogarth’s subjectively reported emotional symptoms are of the degree or to the extent to justify my particular psychiatric illness or diagnosis.

[39] The trial date is less than three months away. Any further examinations may well result in the need for NH to obtain a responding expert. I must be mindful of the inconvenience and additional costs that would result to NH if additional reports were required and/or the matter required a further adjournment.[^3]

[40] In my view, Dr. Hines, a psychiatrist, is more than qualified to respond to any new information contained in Dr. Schnurr’s 2013 report. A matching report is not required to ensure trial fairness. Leave to allow Dr. Hines to provide a supplemental report to Dr. Schnurr’s report would address trial fairness.

[41] A day-long battery of psychological testing would be intrusive on NH, given the late stage of the proceedings and the testing already undertaken in this matter to date.

[42] On the evidence before me, MTO has not demonstrated that the proposed neuro-psychological assessment of Dr. Young is necessary to ensure trial fairness or level the playing field.

[43] Any cognitive issues that may arise, if they arise, are clearly within the purview and expertise of Dr. Hines.

Conclusion

[44] The request to allow Ms. Shafi to attend at the home of NH for two further hours to complete a defence future cost of care assessment is denied. Her report shall be completed with the information available to her and served and filed by no later than January 15, 2015.

[45] The request for an order compelling NH to attend a defence medical assessment with Dr. Young is also denied. However, in light of the arguments made and the report in 2013 of Dr. Schnurr, MTO is given leave to file a supplemental report from Dr. Hines, such report to be limited in scope to responding to the 2013 report of Dr. Schnurr, and to be served and filed by no later than January 31, 2015.

Costs

[46] In the event that the parties cannot agree on costs, I will receive written submissions, not to exceed three typed pages, from NH by January 5, 2015, and MTO by January 19, 2015. NH may file a brief one-page reply by January 26, 2015. If I do not hear from the parties, there will be no award of costs.

“Justice M. A. Garson”

Justice M. A. Garson

Date: December 02, 2014

[^1]: See defence physical assessment of Dr. Hugh Cameron, dated January 9, 2013.

[^2]: See Bonello v. Taylor 2010 ONSC 5723, where Brown J. provides a helpful summary at para. 16.

[^3]: See Vassallo v. Piccinato, 2008 WL4598163 (Ont. S.C.J.) 2008 CarswellOnt 6034 at paras. 5, 8 and 11.