COURT FILE NO.: 3379/14T (London)
4620/09 (Chatham)
DATE: 2015/10/21
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Deanna Karbasion (Plaintiff)
AND:
Mieczyslaw Batorowicz and Maria Batorowicz (Defendants)
BEFORE: Justice H. A. Rady
COUNSEL: Jerry O’Brien, for the plaintiff
Michelle Packer, for the defendants
HEARD: October 19, 2015
ENDORSEMENT
[1] The defendants request an order bifurcating the issues of liability and damages; failing which an order adjourning the trial scheduled for the week of November 9, 2015; and permitting two independent medical assessments, one by a neurologist and the other a psychiatrist.
[2] The plaintiff opposes bifurcation. She is content that the trial be adjourned and she agrees to attend a neurological assessment already arranged with Dr. Upton. She also agrees that she will attend for a psychological assessment but objects to a psychiatric examination.
[3] On the issue of bifurcation, I advised counsel at the conclusion of submissions that that relief would not be granted. I do not propose to discuss whether rule 48.04(1) precludes this motion from being entertained. I concentrate instead on the merits of bifurcation.
[4] It has been observed that “it is a basic right of a litigant to have all issues in dispute resolved in one trial”. Any derogation from that right must be “exercised, in the interest of justice, only in the clearest cases”: Elcano Acceptance Ltd. v. Richmond, Richmond, Stambler and Mills, 1986 CanLII 2591 (ON CA), [1986] O.J. No. 578 (C.A.)
[5] A number of factors are helpful in evaluating whether the relief is appropriate. They include:
• are the issues to be tried simple;
• are the issues of liability clearly separate from the issues of damages;
• is the factual structure upon which the action is based so extraordinary and exceptional that there is good reason to depart from normal practice requiring that liability and damages be tried together;
• does the issue of causation touch equally upon the issues of liability and damages;
• will the trial judge be better able to deal with the issues of the injuries of the plaintiff and his financial losses by reason of having first assessed the credibility of the plaintiff during the trial of the issue of damages;
• can a better appreciation of the nature and extent of injuries and consequential damage to the plaintiff be more easily reached by trying the issues together;
• are the issues of liability and damages so inextricably bound together that they ought not to be severed;
• if the issues of liability and damages are severed, are facilities in place which will permit these two separate issues to be tried expeditiously before one court or before two separate courts, as the case may be;
• is there clear advantage to all parties to have liability tried first;
• will there be a substantial saving of costs;
• is it certain that the splitting of the case will save time, or will it lead to unnecessary delay;
• has there been an agreement by the parties to the action on the quantum of damages;
• if a split be ordered, will the result of the trial on liability cause other plaintiffs in companion actions, based on the same facts, to withdraw or settle; and
• is it likely that the trial on liability will put an end to the action.
See Bourne v. Saunby, [1993] O.J. No. 2606 (Gen.Div.); see also General Refractories Co. of Canada v. Venturedyne Ltd., [2001] O.J. 747 (S.C.J.); and Unwin v. Crothers, 2005 CanLII 23337 (ON SC), [2005] O.J. No. 2797 (S.C.J.).
[6] In my view, there is no persuasive evidence that bifurcation is in the interest of justice in this case. The defences’ assertion that the case is more likely to resolve if liability is decided is speculative. Indeed, given the apparent chasm between the parties’ respective positions on damages, it seems to me that counsel’s optimism may well be misplaced.
[7] I cannot say that liability is clearly separate from damages. One of the issues is whether the forces of the accident caused the plaintiff’s injuries. Therefore, causation touches “equally upon the issues of liability and damages”. Nor is there likely to be any cost savings. Indeed, the opposite is true: both sides would be obliged to prepare for two hearings.
[8] It will not lead to any time savings. The losing side in a liability determination could appeal, which would inevitably delay the matter and increase costs.
[9] For these reasons, the motion for bifurcation is dismissed.
[10] Turning then to the defence request for medical assessments, as already noted, the plaintiff has agreed to attend a neurological and a psychological assessment. The only issue is whether she should be compelled to attend a psychiatric assessment with Dr. Reznek.
[11] The defendants submit that they are entitled to choose the area of specialty and that a psychiatric assessment is necessary to provide comment on pain medication being taken and the plaintiff’s complaints of depressed mood. They suggest it levels the playing field.
[12] The plaintiff points out that she has not been treated or assessed by a psychiatrist. She is not taking psychiatric medication. If she is assessed by Dr. Reznek, she will be obliged to respond to his psychiatric assessment, with the obvious attendant expense and delay.
[13] The guiding principles governing whether to order a defence assessment are helpfully summarized in Bonello v. Taylor, 2010 ONSC 5723 (S.C.J.) as follows:
(i) The party seeking the order for a further examination must demonstrate that the assessment is warranted and legitimate, and not made with a view to delaying trial, causing prejudice to the other party, or simply corroborating an existing medical opinion;
(ii) A request may be legitimate where there is evidence that (i) the party’s condition has changed or deteriorated since the date of a previous examination, (ii) a more current assessment of the plaintiff’s condition is required for trial, (iii) the plaintiff served specialist reports from new assessors after the defendants had conducted their medical assessments, or (iv) some of the party’s injuries fall outside the expertise of the first examining health practitioner;
(iii) Some cases take the view that the need for a “matching report” – i.e. a report from a defence expert witness in the same specialty as a plaintiff’s expert – is not, in and of itself, a sufficient reason to order a further defence medical. In the circumstances of the present case I need not wade deeply into that question. That said, I would venture that trial fairness should operate as the guiding principle in this area, so if the plaintiff has decided that expert evidence from one specialty based on an examination of the plaintiff is relevant to the adjudication of her claim at trial, courts should be loathe to deny the defence a fair opportunity to respond with expert evidence from the same specialty based on an assessment of the plaintiff. Ordering further examinations may be just where they are necessary to enable the defendant fairly to investigate and call reasonable responding evidence at trial;
(iv) Where the request is for the examination of the plaintiff by a person who is not a health practitioner, such as a rehabilitation expert, the defendant must demonstrate that the proposed examination is necessary as a diagnostic aid to the health practitioner who is conducting the defence medical examination;
(v) A request for a second examination must be supported by sufficient evidence to persuade a court of the need for the further examination. What constitutes sufficient evidence will vary from case to case. Some cases have suggested that need must be established by filing medical evidence, such as an affidavit from the first examining physician recommending a further examination by a health practitioner competent in another specialty. In other instances an affidavit from a lawyer or law clerk attaching medical reports has been utilized by the court. But, at the end of the day, determining whether the nature of the evidence filed is sufficient remains essentially an exercise of judicial discretion;
(vi) While fairness, or “creating a level playing field”, may constitute a legitimate reason for ordering a second examination, someone with knowledge of the evidence in the case must provide evidence of unfairness for the court to consider; and,
(vii) A court should consider whether the request for a further examination would impose an undue burden on the plaintiff in light of the number of examinations already conducted of her by the defence. [Footnotes omitted].
[14] I have concluded that a psychological rather than a psychiatric assessment is appropriate for several reasons. First, in their motion material, the defendants sought a psychological assessment rather than a psychiatric examination.
[15] I note that the plaintiff has seen a psychologist, and not a psychiatrist. It seems to me that the former is therefore the appropriate discipline to respond to the plaintiff’s report. She is not receiving psychiatric treatment. Her psychiatric condition has not been put into issue. There is no evidence before me as to why a psychiatric assessment is considered necessary.
[16] There is a difference between the two disciplines. As noted in Narouz v. Desjardin, 2015 ONSC 540 (S.C.J.):
There is no equivalency or overlap in the two experts’ expertise. Dr. Berard is a psychiatrist: a licensed medical doctor who studied general medicine and had at least five years of psychiatry training. He is a clinician [trained] to diagnose, treat and provide ongoing care for mental disorders. As a psychiatrist, Dr. Berard specialized in work disability due to psychiatric issues, including depression and anxiety. Dr. Houle is a psychologist: she “studies how we think, feel and behave from a scientific viewpoint and applies this knowledge to help people understand, explain and change their behaviour.” Dr. Houle studied clinical psychology at both the Master’s and Ph.D. levels, but is not a medical doctor. As a psychologist, she specialized in pain and in psychometric testing.
[17] I am not persuaded that a psychiatric assessment is necessary to “level the playing field”. I note that a similar issue was addressed in Pinelli v. Churma, 2006 CanLII 34277 (S.C.J.) where the court commented as follows:
The defence does not need an assessment by a psychiatrist to defend the case that has been brought against it. The plaintiff has seen a psychologist. He has produced reports from that psychologist to the defence. The plaintiff has been assessed by a psychologist chosen by the defence. The psychologist has provided a report which provides the defendant with solid evidence to defend the proposition that the plaintiff’s emotional difficulties are the result of injuries suffered in the motor vehicle accident. To allow the defendant a psychiatric examination of the plaintiff would not level the playing field in its contest with the plaintiff. It might well tip the playing field in favour of the defence. This is not the purpose of an independent medical examination.
[18] I agree with the plaintiff’s submission that to order a psychiatric assessment could lead to needless delay and expense, which is obviously prejudicial to the plaintiff and the defendants as well.
[19] For these reasons, I decline to order a psychiatric assessment. An order for a psychological assessment is unnecessary given the plaintiff’s agreement. Arrangements should be made for an appointment as soon as possible, preferably before the end of the year.
[20] The trial is adjourned to a date to be arranged with the trial coordinator. Counsel are advised to canvas mutually convenient dates with one another before speaking to Ms. Beattie to secure a date.
[21] I will receive brief written submissions on costs, (if the parties cannot agree) from the plaintiff by October 30, 2015 and the defendants by November 13, 2015.
“Justice H.A. Rady”
Justice H. A. Rady
Date: October 21, 2015