Crete v. Messier, 2015 ONSC 348

Crete v. Messier, 2015 ONSC 348

COURT FILE NO.: CV-09-13057CM

MOTION HEARD: 20141120

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Denis Crete, Plaintiff

AND:

Eric Messier and Bennette Klundert, Defendants

BEFORE: Master Pope

COUNSEL: Ken McNair, for the Plaintiff

Nick Galanis, for the Defendants

HEARD: November 20, 2014

REASONS FOR endorsement

1The defendants seek an order to compel the plaintiff to undergo an orthopaedic examination.

2This action arises out of a motor vehicle accident which occurred on December 20, 2007.

3The plaintiff alleges to have been rear-ended by the defendants’ vehicle while stopped at a railroad crossing. The statement of claim was issued May 11, 2009. He alleges to have sustained a permanent serious impairment of an important physical, mental or psychological function, including, but not limited to injuries to his neck, back and left arm. The plaintiff seeks non-pecuniary general damages, pecuniary damages for past and future housekeeping, home maintenance and medical expenses, past and future income loss, loss of earning capacity, special damages and damages for medical rehabilitation. Prior to the accident, the plaintiff injured his low back in 2002 while at work and subsequently had surgery for a discectomy.

4Examinations for discovery of the plaintiff have been completed. Two mediation sessions have taken place. The plaintiff set the action down for trial on August 22, 2013, not on consent of the defendants.

5The issues at trial will include the physical condition of the plaintiff, threshold, pre-accident health and causation.

6The plaintiff obtained a medical opinion from Dr. Kleinman, physiatrist, who assessed the plaintiff in October 2010. Dr. Kleinman has since delivered two further reports, an addendum and a response to Dr. Waseem’s report. Neither of these two further reports involved office assessments of the plaintiff. Dr. Waseem, a physiatrist, was retained by the defendants to conduct a medical legal assessment of the plaintiff which was completed in June 2012. His report has been served on the plaintiff.

7Dr. Kleinman’s opinion is that the accident is the cause of the plaintiff’s complaints, his impairments are serious and permanent and his prognosis is guarded.

8Dr. Waseem’s opinion is that the accident did not contribute to the plaintiff’s impairments and that any injuries from the accident caused no permanent serious impairments.

9Regarding the plaintiff’s psychological complaints, the plaintiff obtained two reports from psychologist, Dr. Plotnick, dated October 31, 2012 and March 21, 2014. The defendants had the plaintiff assessed by Dr. Syed, psychologist, and his report is dated September 9, 2014.

10Other medical evidence produced by the plaintiff include a letter from the plaintiff’s family doctor in which he provided a diagnosis, opinion on causation, and permanency of impairment. The plaintiff has also produced a Life Care Plan conducted by kinesiologists, a future care cost report, and a loss of income report.

11The defendants propose to have the plaintiff examined by Dr. David Clifton Taylor, orthopaedic surgeon, in London, Ontario on February 17, 2015, or by an orthopaedic surgeon at a mutually agreeable time and place as agreed between the parties. The affidavit of David W. Powrie, counsel for the defendants, filed in support of this motion, sets out that Dr. Taylor is a clinical associate professor of medicine at the University of Western Ontario and his experience includes over thirty years in orthopaedic surgery and orthopaedic consulting.

12The pre-trial conference in this action is scheduled for February 7, 2015.

Law

13Section 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43, sets out the court’s authority to order the physical or mental examination of a party to a proceeding. The relevant provisions are subsections (2) and (4) which state as follows:

(2) 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.

(4) The court may, on motion, order further physical or mental examinations.

14Rule 33.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, sets out the contents of an order for an examination under s. 105 of the Courts of Justice Act and the power of the court to order further examinations.

(1) An order under section 105 of the Courts of Justice Act may specify the time, place and purpose of the examination and shall name the health practitioner or practitioners by whom it is to be conducted.

(2) The court may order a second examination or further examinations on such terms respecting costs and other matters as are just.

15The policy behind a defence medical examination and the guiding principles that have developed in the case law are set out thoroughly in the parties’ factums.

16The theme running through the jurisprudence is whether a further defence medical is necessary as a matter of fairness in order to level the playing field. There is no dispute that the test to be applied in determining whether to order a further defence medical is necessity, fairness and prejudice: see Ramrup v. Lazzara, 2014 ONSC 130, 58 C.P.C. (7th) 417 at para. 47, citing Jeffrey v. Baker, 2010 ONSC 5620, [2010] O.J. No. 4415 (S.C.J.) at para. 12.

Arguments and Analysis

17The defendants submit that fairness requires that the plaintiff be examined by an orthopaedic surgeon because the plaintiff’s condition has changed between 2010 and 2012. It is contended that the plaintiff’s two alleged physical ailments; namely, his neck and back, have changed markedly in the two years between October 2010, when he was assessed by Dr. Kleinman, and November 2012 when the Life Care Plan was completed. I note that while the Life Care Plan is dated November 21, 2012, page one of the report states that the plaintiff was interviewed on August 21, 2012. It is also noted that the plaintiff was assessed by Dr. Waseem on June 15, 2012. Therefore, Dr. Waseem, the defence assessor, assessed the plaintiff approximately two months before the interview by the plaintiff’s kinesiologists.

18Essentially, the defendants’ evidence extrapolates one short passage from Dr. Kleinman’s report and contrasts it with one short passage from the Life Care Plan report regarding each of the neck and back, and concludes that the plaintiff’s ailments have changed markedly in the two years. Frankly, this is insufficient evidence in my view. Firstly, regarding the defendants’ comparison of the neck complaint based on the two passages, his neck complaints appear to have lessened over the two years. It could be argued that this supports Dr. Waseem’s opinion that the alleged neck injury is not a serious permanent impairment. Secondly, regarding the comparison of the back complaint, I reject the defendants’ contention of a marked change. In 2010 the plaintiff rated his low back pain at 10/10 and in 2012 he reported constant low back pain with radiation when aggravated around his hips and into the groin area. I am not persuaded that a reasonable conclusion from these two passages is that the back complaints have changed markedly.

19Further, the defendants adduced no evidence of any change in the plaintiff’s condition between June 15, 2012 when he was assessed by Dr. Waseem on behalf of the defendants and August 21, 2012 when he was interviewed by the kinesiologists on behalf of the plaintiff. In my view and in the circumstances herein where the defence expert assessed the plaintiff just over two months before being interviewed by the plaintiff’s kinesiologists, the defendants ought to be able to demonstrate a change in the plaintiff’s condition in those two months to justify a further medical assessment. In other words, the argument that there was a change in the plaintiff’s condition over a two-year period is abated by the fact that the defence medical expert assessed the plaintiff just two months prior to the end of that two-year period.

20For those reasons, I reject the defendants’ argument that the request for an orthopaedic assessment is legitimate based on a change in the plaintiff’s condition.

21The defendants further submit that their request for an orthopaedic assessment is legitimate on the basis that a more current assessment of the plaintiff’s condition is required for trial, particularly given the alleged change in his condition and production by the plaintiff following the completion of the plaintiff’s examination for discovery.

22I also reject this submission. Firstly, Dr. Waseem’s report of June 2012 is more current than Dr. Kleinman’s initial report of October 2010. For the subsequent reports, Dr. Kleinman did not conduct an assessment of the plaintiff. His reports were based on document reviews and responding to Dr. Waseem’s report. No reason has been provided by the defendants to explain why Dr. Waseem could not produce an updated report based on a document review as done by Dr. Kleinman to address any changes to the plaintiff’s complaints and further production post discoveries.

23Regarding the issue of delay, I find no evidence of delay on the part of the defendants in requesting an orthopaedic assessment given that the examination for discovery of the plaintiff was completed in July 2013 and the plaintiff had not satisfied all his undertakings by the time of the request. Further, the plaintiff set this action down for trial in August 2013 without the consent of the defendants, one month after completion of the examination for discovery of the plaintiff. Of course the filing of the trial record triggered the timelines under the Rules for the next steps; namely, to schedule a pre-trial conference and to deliver expert reports in advance of the pre-trial conference.

24No trial date has been scheduled. In accordance with the Rules, a trial date will be scheduled at the pre-trial conference that is scheduled for February 6, 2015 should the action not settle at that time. Should the defendants’ motion be granted, the action will undoubtedly be delayed as the pre-trial conference will have to be adjourned to ensure that delivery of any further expert reports be delivered in compliance with the Rules. Should this motion fail, the pre-trial conference should be able to proceed as scheduled.

25This action was commenced on May 11, 2009. There is no evidence to suggest that either party is responsible for any delay to this stage in the action.

26The defendants further contend that an independent orthopaedic assessment will assist the trial judge in adjudicating the contested issues of damages, threshold and causation. I am not persuaded of this argument given that both parties have had the plaintiff independently assessed regarding his physical complaints. The evidence is lacking with respect to the reasons why an orthopaedic surgeon’s opinion on the issues would assist the trial judge over a physiatrist’s opinion.

27I find that there will be no prejudice to the defendants if they are required to proceed to trial and defend this action without an orthopaedic opinion. It was the defendants’ choice to have the plaintiff assessed regarding his physical complaints by a physiatrist instead of an orthopaedic surgeon. Dr. Waseem reviewed at length the plaintiff’s pre-accident health records and he provided an opinion on causation, impairment and prognosis.

28In conclusion and for the above reasons, I find no legitimate reason why the defendants ought to be permitted a further assessment by an orthopaedic surgeon, nor is it necessary as a matter of fairness to the defendants. The defendants will suffer no prejudice if they are required to proceed to trial without that assessment. Essentially, the evidence is insufficient to establish the need for a further examination.

29Therefore this motion is denied.

30The defendants shall pay costs to the plaintiff on a partial indemnity scale of $3,863 forthwith.