McDonald v. Peel, 2015 ONSC 2758
COURT FILE NO.: CV-09-5805-00
DATE: 2015 05 13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Bonnie McDonald v. Regional Municipality of Peel
BEFORE: Fragomeni J.
COUNSEL: Bonnie McDonald, In-person
Carla Nassar, for the Defendant
HEARD: April 23, 2015
E N D O R S E M E N T
[1] The plaintiff proceeded with a Motion initially returnable September 10, 2014, for the following relief:
To request the Honourable Judge to review the response report by Bonnie McDonald of Dr. Woodside with reserve judgement.
To provide procedural mediation with a chosen forensic/psychiatrist for an expert second opinion of Bonnie McDonald, as she is unable to retain one because she is self-represented.
[2] In support of her Motion the plaintiff filed an Affidavit sworn August 22, 2014. The Affidavit is 345 pages in length.
[3] In her grounds in support of the motion the Plaintiff asserts that if the order sought is not granted she will suffer irreparable harm if she is unable to retain an expert second opinion.
[4] In a letter to the Plaintiff, dated September 2, 2014, counsel for the defendant set out the following:
We are in receipt of your Notice of Motion for the motion scheduled for September 10, 2014. We understand from your materials that you intend to ask the Court to assist you with retaining a psychiatrist to provide a second opinion with respect to Dr. Woodside’s report, as you have not been able to retain one on your own.
Please note that we dispute the allegations set out in your Notice of Motion and the attached materials in their entirety. However, provided that our understanding of the Order that you are requesting, as set out in the previous paragraph, is correct, we do not intend to oppose your motion. We will provide you with a brief Motion Record under separate cover, setting out the Defendant’s position regarding the status of this action.
[5] At the hearing on September 10, 2014, which was before me, the plaintiff was seeking the order pursuant to Rule 52.03 of the Rules of Civil Procedure.
[6] Rule 52.03 sets out the following:
52.03 (1) On motion by a party or on his or her own initiative, a judge may, at any time, appoint one or more independent experts to inquire into and report on any question of fact or opinion relevant to an issue in the action. R.R.O. 1990, Reg. 194, r. 52.03 (1).
(2) The expert shall be named by the judge and, where possible, shall be an expert agreed on by the parties. R.R.O. 1990, Reg. 194, r. 52.03 (2).
Contents of Order Appointing Expert
(3) The order shall contain the instructions to be given to the expert and the judge may make such further orders as he or she considers necessary to enable the expert to carry out the instructions, including, on motion by a party, an order for,
(a) inspection of property under Rule 32; or
(b) the physical or mental examination of a party under section 105 of the Courts of Justice Act. R.R.O. 1990, Reg. 194, r. 52.03 (3).
Remuneration of Expert
(4) The remuneration of an expert shall be fixed by the judge who appoints the expert, and shall include a fee for the expert’s report and an appropriate sum for each day that attendance at the trial is required. R.R.O. 1990, Reg. 194, r. 52.03 (4).
(5) The responsibility of the parties for payment of the remuneration of an expert shall be determined in the first instance by the judge. R.R.O. 1990, Reg. 194, r. 52.03 (5).
(6) Where a motion by a party for the appointment of an expert is opposed, the judge may, as a condition of making the appointment, require the party seeking the appointment to give such security for the remuneration of the expert as is just. R.R.O. 1990, Reg. 194, r. 52.03 (6).
Report
(7) The expert shall prepare a report and send it to the registrar and the registrar shall send a copy of the report to every party. R.R.O. 1990, Reg. 194, r. 52.03 (7).
(8) The report shall be filed as evidence at the trial of the action unless the trial judge orders otherwise. R.R.O. 1990, Reg. 194, r. 52.03 (8).
(9) The judge may direct the expert to make a further or supplementary report, and subrules (7) and (8) apply to that report. R.R.O. 1990, Reg. 194, r. 52.03 (9).
Cross-examination of Expert
(10) Any party may cross-examine the expert at the trial. R.R.O. 1990, Reg. 194, r. 52.03 (10).
Liability of Parties for Remuneration of Expert
(11) The liability of the parties for payment of the remuneration of the expert shall be determined by the trial judge at the end of the trial, and a party who has paid the expert in accordance with a determination under subrule (5), if not the party determined to be liable for payment under this subrule, shall be indemnified by the party determined to be liable. R.R.O. 1990, Reg. 194, r. 52.03 (11).
[7] In my September 10, 2014, endorsement I set out the following:
The plaintiff in this matter seeks an order pursuant to Rule 52.03 of the Rules of Civil Procedure.
In order to provide the necessary information to the Court as to who may be able to conduct the mental examination the plaintiff requires time to meet with Psychiatrists who can conduct the examination and provide confirmation of same with the Court. This information is required so that the Court can properly deal with Rule 52.03, especially sub-sections (2)-(10).
In all of these circumstances, therefore, it is necessary to adjourn this Motion so that the plaintiff can provide the necessary information to the Court.
The Motion is adjourned to a long motion hearing date on December 18, 2014 for 3 hours.
In the event that the plaintiff is able to retain a Psychiatrist on her own without the necessity of a Court order the long motion date may not be required and she will advise the Court accordingly. Further, in the event that the plaintiff is able to secure this information required by the Court to properly deal with Rule 52.03 and the matter can be dealt with expeditiously after it has been served on the defendant, the plaintiff may proceed with the Motion on a regular motions day on a day convenient to the defence.
[8] On December 18, 2014, the plaintiff advised counsel for the Defendant that she was not prepared to proceed and on consent the matter was further adjourned to April 23, 2015.
[9] The plaintiff’s position at this time is that she cannot proceed and is requesting a further adjournment to November 2015. The plaintiff advised that she had contacted Dr. Michael Ross who sent her the following e-mail dated September 17, 2014:
I recognize you continue to encounter barriers to proceeding in the manner you hope to and empathize with the concerns you voice. I am however not in a position to undertake the services you request.
[10] In her Supplementary Notice of Motion April 13, 2015, and Affidavit of April 13, 2015, the plaintiff sets out the following at page 3:
The Region of Peel initially gave sine die consent after my amount of attempts to retain an expert, and did not challenge the motion September 10, 2014. At pre-trial I said I did not feel ready to proceed. The Judge said the next available date should be enough time to do a response report and get an expert, and it has not been. They now are challenging my motion to eliminate me from having a second opinion. This is additional compounded issues I am going through as a result of their requests/delays, and they request to schedule a trial which can easily hinder my ability to be as prepared.
POSITION OF THE DEFENDANT
[11] The defendant now opposes the relief requested by the plaintiff. At paragraph 5 of its factum the defendant states:
In addition and in the alternative, it is the Defendant’s position that the substance of the Plaintiff’s motion is improper, and that her motion should be dismissed. Notwithstanding that the Plaintiff’s Notice of Motion cites Rule 52.03 of the Rules, the essence of the Plaintiff’s request is that the Court assist her in litigating her claim by helping her to retain an expert. It is not this Honourable Court’s role to assist a party in litigating his or her claim. Accordingly, it is respectfully submitted that the Plaintiff’s motion should be dismissed.
ANALYSIS AND CONCLUSION
[12] On January 27, 2011, Mr. Justice O’Connor of this Honourable Court ordered Ms. McDonald to submit to a mental examination by a psychiatrist licensed to practice medicine in Ontario.
[13] On or around August 30, 2013, Dr. Scott Woodside of the Centre for Addiction and Mental Health provided his report on the plaintiff to the defendant. The plaintiff was provided with a copy of the report.
[14] The plaintiff set the action down for trial by filing a Trial Record on or about March 20, 2012. The pre-trial took place on or about September 13, 2013. The action was scheduled for trial commencing on May 12, 2014.
[15] In or about March 2014, at the request of the plaintiff, the defendant consented to adjournment of the trial of the action sine die. The plaintiff so informed the Court on behalf of the parties.
[16] The plaintiff served the defendant with her Notice of Motion on or about August 25, 2014. On or about September 2, 2014, the defendant wrote to the plaintiff and advised that it would not oppose her motion, provided that it was correct in its understanding that the purpose of the plaintiff’s motion was to ask the Court for assistance in retaining a medical expert.
[17] The motion was heard on September 10, 2014. At the hearing of the motion, the plaintiff made a request for the appointment of an independent expert pursuant to Rule 52.03 of the Rules. In light of the defendant’s prior understanding of the purpose and nature of the plaintiff’s motion, the motion was adjourned to December 18, 2014, to permit the parties to make submissions on this request.
[18] The defendant consented to a further adjournment to April 23, 2015, because the plaintiff advised that she was not prepared to proceed on December 18, 2014.
[19] The plaintiff is now requesting a further adjournment to November 2015, more than one year after she initially brought her motion.
RULE 48.04(1) STATES:
48.04 (1) Subject to subrule (3), any party who has set an action down for trial and any party who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court. O. Reg. 436/10, s. 1 (1).
[20] It is important to note that the plaintiff initially placed this matter on the trial list in March 2012, over three years ago.
[21] On September 10, 2014, the endorsement of the court makes it clear that in order to consider the plaintiff’s motion pursuant to Rule 52.03 certain information was necessary. It is now April 23, 2015, about seven months later, and the issue raised by the plaintiff has not been addressed. The plaintiff’s request that this motion be adjourned to November 2015, would result in a further one year delay from the date of her initial request.
[22] The defendant has asserted that it should not be forced to endure further delay for the convenience of the plaintiff.
[23] The defendant submits that it was the plaintiff who filed a Trial Record in March 2012, and by doing so identified she was ready to proceed to trial.
[24] Further it is important for the plaintiff to understand that she was entitled to obtain an expert report to respond to the report obtained by the defendant. At paragraph 29 to 32 of its factum, the defendant submits the following:
- The role of an independent expert is to assist the Court in understanding the evidence adduced by the parties. He or she may explain the evidence to the Court so that that the Court may be better informed in the requisite spheres of knowledge for the proper determination of complex questions of fact presented to it.
Philips et al. v. Ford Motor Co. of Canada Ltd. et al., 1971 CanLII 389 (ON CA), [1971] O.J. No. 1564 (QL) (“Philips”), Defendant’s Book of Authorities, Tab 1, paragraphs 70 and 73.
- In order to be effective, civil procedure in Ontario requires that litigants fully and diligently present all the material facts and evidence in support of their respective positions and that the Court will give the evidence impartial consideration in order to arrive at the truth of the matters in dispute. A Court should not appoint an expert to make independent inquiries into the matters before it for the purpose of supporting or refusing the position or theory of one of the parties.
Philips, Defendant’s Book of Authorities, Tab 1, paragraph 61.
The order sought by the Plaintiff is that the Court provide “procedural mediation with a chosen forensic/psychiatrist for an expert second opinion of Bonnie McDonald, as she is unable to retain one because she is self-represented.”
Although the Plaintiff relied on Rule 52.03 in her Notice of Motion and in her submissions before this Honourable Court on September 16, 2014, the essence of the Plaintiff’s request is that the Court assist her in litigating her claim by helping her to retain an expert to respond to the report of Dr. Scott Woodside obtained by the Defendant. This is evident in the reasons given by the Plaintiff in support of her request:
(a) at paragraph (a) of the Notice of Motion, the Plaintiff takes issue with Dr. Woodside’s refusal to order an MRI test of the Plaintiff, and states that “scientific data should be accompanied for an assessment to assist to avoid prejudice”;
(b) at paragraph (b) of the Notice of Motion, the Plaintiff states that “Dr. Woodside’s report is based on genetics and other experts will base diagnosis on environmental which is a direct result of the Management and Senior Management’s actions of the Region of Peel”;
(c) at paragraph (d) of the Notice of Motion, the Plaintiff states that she will suffer irreparable harm if she is unable to retain an expert second opinion.
[25] Rule 52.03 deals with Court appointed experts. The plaintiff has been entitled to obtain her own expert report to respond to the report obtained by the defendant. Dr. Woodside provided his report to the defendant on August 30, 2013 and in turn the defendant provided a copy to the plaintiff. The Pre-Trial in this matter took place on September 13, 2013. The plaintiff first served her motion for the relief she now requests on August 25, 2014, almost one year after the Pre-Trial and well past the March 20, 2012 date when the matter was set down for trial.
[26] The evidentiary record filed by the plaintiff does not support the order being sought. The plaintiff is entitled to retain her own expert. The evidentiary record does not establish a basis for this Court to conclude that a Court appointed expert is necessary to understand or appreciate the testimony that will be provided by Dr. Woodside from CAMH.
[27] The plaintiff has had ample time to provide the Court with the necessary information to assist her since she initially brought her motion in September 2014.
[28] In all of the circumstances of this case I agree with the position taken by the defendant. The plaintiff’s material does not support the relief requested and does not establish that the order requested is warranted.
[29] Order to issue as follows:
(1) Plaintiff’s motions is dismissed;
(2) This matter is set to the June 22, 2015 Assignment Court at 9:00 a.m. to set a date for trial; and
(3) In the event that the defendant seeks costs of this motion the parties shall file written submissions on costs within 20 days.
FRAGOMENI J.
DATE: May 13, 2015
CITATION: McDonald v. Peel, 2015 ONSC 2758
COURT FILE NO.: CV-09-5805-00
DATE: 2015 05 13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Bonnie McDonald v. Regional Municipality of Peel
BEFORE: Fragomeni J.
COUNSEL: Bonnie McDonald, In-person
Carla Nassar, for the Defendant
ENDORSEMENT
FRAGOMENI J.
DATE: May 13, 2015