Vadivelu v. Sundaram, 2015 ONSC 331

COURT FILE NO.: CV-09-372080

DATE: 20150116

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

KAMALAVELU VADIVELU and SANTHIRA KAMALAVELU

Plaintiffs

– and –

SALTHEESWARAN SUNDARAM, RAMAN KUMAR SINGH and MAINLINER FREIGHTWAYS LTD.

Defendants

Gordon McGuire for the Plaintiffs

Patricia Horak for the Defendants

HEARD: January 15, 2015

PERELL, J.

REASONS FOR DECISION

[1] Almost eight years ago, on February 15, 2007, the Plaintiff Kamalavelu Vadivelu was involved in a motor vehicle accident. On February 10, 2009, he commenced an action alleging serious physical and psychological injuries.

[2] The Defendant Saltheeswaran Sundaram has admitted liability, but the issues of: (1) quantification of damages; and (2) whether the threshold for claims under the Insurance Act, R.S.O. 1990, c. I.8 has been satisfied remain to be decided.

[3] A three-week jury trial is scheduled in Toronto for February 2, 2015.

[4] Under rule 48.04(1), 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. Because he consented to having the action set down for trial, Mr. Sundaram now seeks an Order that leave be granted to bring this motion, and if leave is granted, he then seeks an Order that on January 19, 2015, Mr. Vadivelu attend at a defence medical examination arranged with psychiatrist Dr. Ariel Zielinsky.

[5] Mr. Vadivelu resists the relief requested, but Mr. Sundaram submits that it should be granted, because: (1) Mr. Vadivelu will not be prejudiced if the relief is granted; (2) conversely, Mr. Sundaram will be prejudiced; and (3) the interests of justice, fairness, and the creation of a level litigation playing field would be served by granting the Orders requested.

[6] Mr. Sundaram says that he would be seriously disadvantaged and prejudiced without a defence medical examination to respond to the recent medical-legal report of Dr. Shauna Corbin dated September 5, 2014. Mr. Sundaram says that Dr. Corbin’s report is the first psychological report in this litigation, and he says that it was only upon the receipt of Dr. Corbin’s assessment that it was determined necessary to obtain a defence psychiatric assessment of Mr. Vadivelu.

[7] As a factual matter, Mr. Sundaram received Dr. Corbin’s Report on October 14, 2014. In her Report, Dr. Corbin expresses the opinion that Mr. Vadivelu’s complaints of anxiety and depression are chronic and should be considered of indefinite duration. Dr. Corbin opines that the psychological impairments were caused by the 2007 motor vehicle accident. After Mr. Sundaram’s lawyers received Dr. Corbin’s Report, they asked Mr. Vadivelu to attend a defence medical examination arranged for November 19, 2014, but he refused to attend. He also refused to attend another appointment arranged for December 2, 2014.

[8] Mr. Vadivelu says that if he agreed in the fall of 2014 to a defence medical examination and were he now to attend the appointment with Dr. Zielinsky, there would have been a high risk that the trial would have to be adjourned. An adjournment, he says would lead to a likely two-year postponement, having regard to the non-availability of his senior counsel and the state of the trial list in Toronto.

[9] Mr. Vadivelu says that his personal financial circumstances and his alleged persisting physical and mental suffering from the car accident meant that he could not run the risk of the prejudice of losing his long scheduled day in court by agreeing to a medical examination and possible follow up examinations and competing expert reports.

[10] I agree with Mr. Vadivelu’s position. In my opinion, there was nothing unfair or inappropriate in him refusing to attend what was a late request for a defence medical exam. He could legitimately view the late request as imperilling the trial.

[11] Having reviewed the material filed by the parties for this motion, including the affidavits of Edmund Kent, Mr. Sundaram’s lawyer, and David Wilson, Mr. Vadivelu’s lawyer, and the numerous medical and other reports attached as exhibits to their affidavits, it appears to me that from the outset of the action, Mr. Sundaram was aware, or he ought to have been aware, that Mr. Vadivelu’s alleged psychological impairments were serious and that these impairments were destined to be an important part of the case that Mr. Sundaram would be expected to meet should the matter proceed to a trial.

[12] During the course of the litigation, 47 reports have been delivered to Mr. Sundaram. Many of these reports reveal that Mr. Vadivelu’s psychiatric or psychological condition was of very serious concern. Dr. Corbin’s Report should have come as no surprise. In my opinion, if Mr. Sundaram had any reason to doubt the various medical assessments about Mr. Vadivelu’s psychological state being delivered during the course of the litigation, Mr. Sundaram knew or ought to have known long before Dr. Corbin’s Report that a defence medical examination would be prudent and necessary.

[13] If anything, Dr. Corbin’s opinions could have been anticipated as a continuation of a problem that arguably began with the accident and continues to this day. Her opinion does not present a substantial or an unexpected change in: (a) the nature of Mr. Vadivelu’s alleged injuries; (b) the various diagnoses he received during the course of the litigation; or (c) the assessment of the seriousness or persistence of his psychological state. There is a history of disclosure of an alleged to be serious psychiatric impairment.

[14] In a report dated October 24, 2007, Dr. Euling Chong, a psychologist, noted Mr. Vadivelu’s elevated and severe level of anxiety and stated that the depression warranted a diagnosis of major depressive disorder.

[15] In a report dated November 22, 2007, Dr. Richard Gladstone, a neurologist, referred to Mr. Vadivelu’s emotional distress and diagnosed “situational anxiety and depression.”

[16] Pausing here, I note that during argument, Mr. Sundaram’s counsel submitted that little weight if any should be given to the opinions or assessments of a neurologist because a neurologist would not be called at trial to provide psychiatric or psychological evidence. That may be true, but the observation misses the point that the issue is not how Mr. Vadivelu will prove his case but whether Mr. Sundaram knew or ought to have known that a defence medical examination would be necessary to disapprove Mr. Vadivelu’s allegations of a serious psychological injury.

[17] In any event, the psychologist Dr. Chong, in a report dated November 11, 2008, noted some lessening of the depressive symptoms, but in a report dated April 30, 2009, Dr. Chong recommended further psychotherapy sessions.

[18] In a report dated April 1, 2010, Dr. Gladstone made a diagnosis of “situational depression.”

[19] On April 26, 2010, Dr. Corbin made her first report, and she recommended further treatment. She noted that Mr. Vadivelu was unable to overcome his pain and his consequent lack of employment was a chronic stressor.

[20] In a report dated November 29, 2010, Dr. Satvinder Chauhan, a psychotherapist, and Dr. Arpita Biswas, a psychologist, diagnosed Mr. Vadivelu’s symptoms as consistent with Major Depressive Disorder and Post Traumatic Stress Disorder.

[21] Pausing here, for present purposes I will ignore Dr. Biswas’s report of August 15, 2011, because there is a dispute about when it was received by Mr. Sundaram’s lawyers.

[22] In a report dated October 5, 2011, Dr. Gladstone noted that Mr. Vadivelu had made an attendance at the Emergency Department at Trillium Hospital presenting with depression including suicidal ideation.

[23] In a report dated December 29, 2011, Dr. Bawangoanwala, a family physician, referred to Mr. Vadivelu’s situational depression and suicidal ideation.

[24] Pausing here, once again, I see no reason to dismiss the family doctor’s report as not giving Mr. Sundaram notice that it might be prudent and necessary to obtain a defence psychiatric medical report if there was some scepticism about the extent of Mr. Vadivelu’s psychiatric problems being connected to the car accident.

[25] On December 20, 2013, there was mediation, and the parties prepared mediation briefs, including many of these above reports. Mr. Vadivelu’s mediation memo referred to the deterioration of his psychological state and his emergency attendance at Trillium Hospital was disclosed.

[26] In a report dated September 3, 2014, Dr. Gladstone, once again, referred to Mr. Vadivelu’s emotional and psychological issues.

[27] The recently received updated medical records of Mr. Vadivelu received by Mr. Sundaram reveal a suicide attempt. Mr. Sundaram submits this reveals a substantial or an unexpected change of circumstances justifying leave to bring the motion and an order for a defence medical examination. I disagree. Sadly, a suicide attempt after incidents of suicidal ideation and a never apparently cured depression should not have come as any surprise and rather is consistent with the trend that began many years ago.

[28] But even if Dr. Corbin’s Report signified a substantive change in Mr. Vadivelu’s psychiatric state or of the various medical practitioners’ assessments of it, I would not have exercised my discretion in the immediate case to order a psychiatric assessment.

[29] There is no single test for leave to initiate a motion after an action has been set down for trial and the weight to be given the various discretionary factors will depend upon the circumstances of the case: Tanner v. Clark, [1999] O.J. No. 581 (Ont. Gen. Div.). The factors include: (1) what the party seeking leave knew at the time of the passing of the trial record; (2) whether there has been a substantial or unexpected changed in the circumstances since the action was set down for trial; (3) the purpose of the request for leave; and (4) whether the relief sought would likely be granted if leave were given to bring the motion notwithstanding the filing of the trial record: 2247267 Ontario Inc. v. 2038697 Ontario Ltd., 2014 ONSC 2717.

[30] I am not convinced that Mr. Sundaram’s ability to defend this case has been compromised or prejudiced. I am not convinced that he has been treated without procedural fairness. Moreover, if Mr. Sundaram is prejudiced by the absence of a defence psychiatric medical exam, he has only himself to blame. Conversely, I am convinced that it would be prejudicial and unfair to Mr. Vadivelu to order a defence medical examination at this late stage.

[31] The above is dispositive of this motion, but by way of obiter dicta, I add that the administration of justice is now in a post-Hryniak v. Mauldin, 2014 SCC 7 world that: (1) introduces an element of proportionality that focuses on the litigation needs and not the litigation wants of the parties; and (2) includes the requirement in rule 53.03 (2.1) that experts must acknowledge a duty to the court. The expert’s duty to the court is described in rule 4.1.01, which states:

It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules,

(a) to provide opinion evidence that is fair, objective and non-partisan;

(b) to provide opinion evidence that is related only to matters that are within the expert's area of expertise; and

(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue.

[32] These developments must be factored into the determination of what is required to level the litigation playing field, and when they are factored into the circumstances of the case at bar, they reinforce my opinion that Mr. Sundaram’s motion should be dismissed.

[33] Accordingly, I dismiss Mr. Sundaram’s motion.

[34] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Mr. Vadivelu’s submissions within 20 days of the release of these Reasons for Decision followed by Mr. Sundaram’s submissions within a further 20 days. Alternatively, if the parties consent, they may include in the order, a term for costs on a partial indemnity scale payable to Mr. Vadivelu in any event of the cause.

Perell, J.

Released: January 16, 2015

COURT FILE NO.: CV-09-372080

DATE: 20150116

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

KAMALAVELU VADIVELU and SANTHIRA KAMALAVELU

Plaintiffs

– and –

SALTHEESWARAN SUNDARAM, RAMAN KUMAR SINGH and MAINLINER FREIGHTWAYS LTD.

Defendants

REASONS FOR DECISION

PERELL J.

Released: January 16, 2015