COURT FILE NO.: 08-CV-348612

Heard: September 24, 2015

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lue v. TD Bank Financial Group

BEFORE: Master Joan Haberman

COUNSEL: Essig, P. for the moving party

Gibson, J.W. for the responding party

REASONS

Master Haberman:

[1] The plaintiff suffered injuries in a work-related accident in February 2006. Surgical intervention in the form of a microdiscotomy was performed in June 2007, but was not successful. At that time, he was diagnosed with radiculopathy (damage to a nerve root) secondary to disc herniation.

[2] Having set this action down for trial in March 2011, the defendant now seeks to have the plaintiff examined by a neurologist. This would be the 6th defence medical examination if permitted. The plaintiff has not been seen by a treating neurologist, nor has one been retained as an expert witness. Leave to bring this motion has not been sought.

[3] The motion raises the following issues:

1. Is leave required: did the defendant consent to placing the matter on the trial list?

2. If so, is there evidence to support granting leave?

3. If there is, is this examination warranted?

4. If it is, should the plaintiff be expected to travel to Hamilton to accommodate the defendant’s choice of physician?

[4] Having considered these issues, I dismissed the motion in court, on the basis of my findings that leave was required but not sought. Had it been sought, it would not have been granted as the defendant has failed to establish an evidentiary basis for it. Finally, I found no merit to the motion, nor do I believe that having a Toronto resident travel to Hamilton to see a neurologist is warranted on the evidence before me.

[5] The following are my reasons.

LEAVE IS REQUIRED

[6] The trial record was passed on March 18, 2011. Both parties appear to have been of the view at that time that the matter was ready to proceed, as both pre-trial and trial dates were set for March 28 and June 2, 2014 respectively.

[7] The 2014 trial date was then adjourned to April 18, 2016.

[8] Pursuant to Rule 48.04(1):

Subject to subrule (3), any party who has set an action down for trial or 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.

[9] A defence medical examination is considered to be a form of discovery, as Rule 33, which works in conjunction with s. 105 of the Courts of Justice Act to regulate this area falls, within the discovery rules. Defence examinations are not within the exceptions found under subrule 48.04(3) so leave to bring this motion is therefore required if the circumstances of the subrule are met.

[10] As a result, whether or not the defendant consented to having the matter placed on a trial list is the crux of the matter. If he did so, leave is required.

[11] The defendant maintains that leave is not required as he did not consent to setting the action down for trial. He relies on Perrel J.’s decision in Fromm v. Rajani, [2009] OJ No. 3671. It is clear, however, that what the learned judge said about leave in that case was not intended to be of general application. Indeed, he was very careful to say that Rule 48.04(1) did not apply to the circumstances of the case at bar.

[12] Six year later, Perrel J. again considered the issue in Vadivelu v. Sundaram, [2015] OJ No. 178, where he found that the defendant had consented to having the action set down for trial. As a result, he agreed that leave was needed and he went on to consider whether it should be granted. He did not, however, indicate how the defendant manifested his consent.

[13] This raises two questions: what must the defendant consent to and what is required for a court to find that a defendant has consented? This is not a subject that appears to have attracted the court’s attention – at least, neither counsel provided any case law that addresses these issues.

[14] In Vadivelu, supra, Perell J. spoke of the defendant having consented to having the action set down for trial. The Rule, however uses different wording, and speaks of leave being required where a defendant has consented to the action being placed on a trial list.

[15] In my view, these are two distinct acts that occur in sequence. First the action is set down for trial, usually by the plaintiff, who files the trial record pursuant to Rule 48.02. This is a unilateral act and does not require consent.

[16] While a defendant may, in certain circumstances, set the action down for trial, this is not the norm. How, then, can a defendant be seen to consent to the action being set down? The only circumstances where this seems to arise is when both parties know they are not actually ready for trial, as there are outstanding disclosure issues to be resolved, but they agree to set the matter down without prejudice to their rights to move for further relief.

[17] This is not a practice that the court should condone as it is effectively a form of queue-jumping. It allows parties to get in line for a trial date when the matter is not truly ready to be tried. Leave should and obviously is required in that scenario by both parties for the interlocutory steps set out in the Rule.

[18] The second step in the sequence it to set trial and pre-trial dates. This is done by completing the confirmation form provided by the court. In my view, when the plaintiff has set the matter down for trial and the defendant then consents to trial dates, that satisfies the requirement for consent under the Rule, as the defendant has now consented to it being placed on a trial list.

[19] In the case before me, the trial scheduled to start in 2014 was adjourned to April 2016. The defendant was likely involved in setting the original date and he was certainly involved in setting the new date. In fact, in his evidence filed on behalf of the moving party, his counsel states:

33. Plaintiff’s counsel advised that they required an adjournment of the trial.

34. The Defendant wanted to and was prepared to proceed to trial in June 2014.

[20] In the context of these facts, the defendant was prepared to proceed on the original date scheduled so was clearly ready for the upcoming trial date. He therefore consented to placing the matter on the trial list for the new adjourned date that was selected. Leave was therefore required.

LEAVE SHOULD NOT BE GRANTED

[21] Had leave been sought, it would not have been granted as I find no evidentiary basis for it.

[22] The request for this examination came 18 days after the adjourned June 2014 trial date, a date on which the defendant indicated that they were prepared to proceed. This was not a factor raised before the court as a reason for the need to adjourn. By this point, the case had already been pre-tried by Wilkins J. in March 2014 and had gone through a second mediation in May of that year.

[23] Neurological symptomology was not something new or unexpected in this action. The emergency triage and minor nursing assessment form completed by Sunnybrook and Women’s College on March 5, 2006, only a few days after the accident giving rise to this action, indicates, among other symptom:

Reports tingling in L) leg for 1/7.

[24] In September 2011, the plaintiff advised Dr. Ko, Dr. Kisinger and R. Lawson that he experienced numbness and tingling in the left buttock and radiating pain along both sides of his lower back and through his hips.

[25] After an extensive review of his file and independent testing, they concluded that one of his issues was chronic widespread neuropathic pain.

[26] The tingling, numbness and radiating pain they refer to, first mentioned in 2006 and repeated over time, are consistent with neurological impairment. Both can also be consistent with psychological overlay, which according to the plaintiff’s physicians, features prominently in his current presentation. It appears that he was already under the care of a psychiatrist before this accident.

[27] In a report dated August 7, 2013, Dr. Ko and Dr, Lawson discuss medical reports that they reviewed from physicians who had seen the plaintiff earlier. They refer to Dr. Leung, who concluded in 2011 that the problem was chronic mechanical back pain and fibromyalgia. They note that Dr. Hoddaie saw the plaintiff for possible dorsal column stimulator but felt he was not a good candidate for this form of intervention due to the multifaceted presentation of his symptoms. They point out that Dr. Rampersaud stated that, though there was evidence of nerve root tethering when he saw the plaintiff, the reliability that surgical intervention would provide relief in this scenario was quite poor. All of these reports preceded the August 2013 report.

[28] The first request for an examination with a neurologist was made on June 20, 2014, 18 days after the first trial date was adjourned, though this was not a reason provided to the court as related to the need to adjourn. This request does not follow receipt of a neurologist report from the plaintiff. He has not been seen by one, either for diagnosis and treatment or for a litigation-related opinion.

[29] The plaintiff’s last defence medical examination was conducted by Dr. Devlin, a physiatrist on August 8, 2013. His last medical-legal assessment for physical pain was conducted by Dr. Ko , a physiatrist, and Dr. Lawson, a chiropractor, on August 7, 2013. Theirs was the last report served by the plaintiff for his physical pain complaints.

[30] In Vadivelu v. Sandaram, supra. Perell J. discussed what the court should focus on when deciding whether or not to grant leave:

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] OJ No. 581. The factors include: 1) what the party seeking leave knew at the time of the passing of the trial record; 2) whether that 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.

[31] His Honour continued, referring to Hryniak v. Maudlin, 2014 SCC 7, which effectively added two more considerations to this list. The first is proportionality, of which our Rules already speak, such that the focus must be on what the litigation needs, rather than on what the parties want. The second is the requirement that all experts must acknowledge a duty to the court to provide, among other things, an opinion that is fair, objective and non-partisan.

[32] When assessing the facts of this case against the legal issues that apply, I find as follows:

1. The defendant has known that there was neurological impairment from the outset. In their own evidence they outline the contents of clinical notes and records, as well as medial reports that speak of tingling and radiating pain, of neuropathic pain, nerve root tethering, and a diagnosis of radiculopathy.

[33] Nothing new has emerged since those reports which has suddenly indicated that these symptoms have progressed further or which elevate their significance in any way in the total picture. In fact, there is no such claim in the plaintiff’s factum. The discussion focuses entirely on historical data;

2. There has therefore been no substantial or unexpected change in the circumstances since the action was set down for trial;

3. The purpose of the request appears to be that this is something the defendant now wants to have in hand. It is therefore about what the defendant wants, not what the litigation needs.

[34] In his factum, the defendant says the examination is necessary and refers to the line of cases that discuss when the court will allow a second defence medical examination. This is not that kind of case, however, in that this plaintiff has already voluntarily submitted to 5 defence examinations and has done nothing to prompt the current request. He has not submitted a report from a new assessor so there is no report to respond to. There is no “playing field” to level in this case.

[35] This necessity the defendant speaks of appears to emanate from a letter from Dr. Upton, the proposed neurologist. In his affidavit, Mr. Zuber states that though the plaintiff has not been seen by a neurologist, at trial, he will introduce various MRI’s which show nerve root impingement, as well as medical records that refer to sensory loss and radiculopathy.

[36] This would suggest that the defendant wants a neurologist who can speak to the terms being used and perhaps explain their significance. But Zuber’s evidence on this issue does not end there.

[37] He goes on to say that Dr. Upton was sent “the records” in anticipation of performing an assessment and that:

Based on his preliminary review of the records he advised that he needed to see and examine the plaintiff before he could prepare a report.

[38] It therefore appears that it is anticipated that Dr. Upon would be opining regarding the plaintiff directly, not in a generic way. A letter from Dr. Upton was obtained and is appended as an exhibit to Zuber’s affidavit. It is dated December 4, 2014, and in it he states, in one line only, that in his opinion it is necessary for him to see the plaintiff before preparing his report.

[39] In June 2915, Dr. Upton provides an affidavit to the same effect. In it, he reviews the various medical reports dating back to 2006 that mention neurological symptoms. Dr. Upton has not appended his CV. This only serves to highlight the fact that this is not new information- it was always there to be seen. Yet, rather than seek a defence medical examination from a neurologist, 5 other areas were explored by the defendant, before the trial was adjourned to a new date.

[40] The final basis for this request now is that the reports on file are now old. As the defendant puts in in his factum:

…the majority of the Defendants defence medicals at this point are from 2011 and given that the trial has been pushed back to 2016 at the request of the plaintiff, the defendant requires a new medical assessment to assess the plaintiff’s current condition

[41] While the majority of reports may date back to 2011, not all of them do. Further, what is now sought is not an examination with a physician who has already seen the plaintiff on the defendants’ behalf, to up-date an earlier report and comment on current condition. What the defence now seeks to do is inject a new doctor into the equation, who is a specialist in a different area, when absolutely nothing has changed.

4. I have already indicated that I would not grant have the relief if the leave had been sought and granted. I will discuss this in more depth below.

5. Proportionality: Personal injury cases have become more and more complex as physicians fall into narrower areas of speciality. By way of example, orthopaedic surgeon specializes in knees or backs, hands or feet.

[42] As a result, there can be an interminable number of physicians that a plaintiff must see for treatment and diagnosis as well as for the litigation, in addition to the various defence medical examinations sought.

[43] In the vast majority of cases, plaintiffs want to get well, so they will tolerate a certain amount of poking and prodding to that end. However, the fact that they may have explored all avenues to restore their heath by visiting a multitude of doctors is not going to give rise to a matching exercise in all cases. Allowing defence medical examinations is not a simple exercise in arithmetic.

[44] The defence has already had the plaintiff seen by 5 experts. Two deal with physical medicine (orthopaedic and physiatry) and two look at what the plaintiff is capable of, in terms of his functional abilities and psycho-vocational options. They have also had him seen by a psychiatrist.

[45] The plaintiff’s physicians have concluded that the current symptomology reflects a problem that is more in the realm of psychiatric medicine than neurology. They have therefore opted not to rely on the evidence of a neurologist at trial. It defies the concept of proportionality to allow a defendant to pick and choose additional areas of speciality that a plaintiff has put to one side.

THIS EXAMINATION IS NOT WARRANTED

[46] In Bonello v. Taylor, 2010 ONSC 5723, Brown J. (as he then was) examined the circumstances within which a second medical examination would be permitted in the context of a 105 of the Courts of Justice Act and Rule 33, from which he extracted leading principles. I will summarize those that are relevant to this debate:

1. The moving party must show that the assessment sought is warranted and legitimate, and not made with a view to delay the trial, causing prejudice to the plaintiff or sought simply to corroborate an existing report;

2. In assessing if a report is legitimate, the court should look for evidence that a) the plaintiff’s condition has deteriorated; b) that a more current assessment of the plaintiff is required for trial; c) that the plaintiff served a report from a new assessor after the defence had completed their examinations; or d) that some of the plaintiff’s injuries are beyond the expertise of the first examiner;

3. Matching reports is not necessarily a sufficient basis for a further defence medical assessment;

4. When a second examination is sought, there must be sufficient evidence to persuade a court of the need for a further examination. Whether or not what has been filed meets the threshold of being sufficient is a matter of judicial discretion; and

5. When a defendant relies on unfairness, or seeks to level the playing field, the onus is on them to provide evidence of unfairness.

[47] Applying the Bonello principles to this case, I am not satisfied that this request is warranted or legitimate.

[48] There is no evidence before the court to the effect that the plaintiff’s condition has deteriorated since the last set of defence examinations. What is sought is not a more current assessment but an examination by a new physician in an area that has not been explored by either the defence or the plaintiff up to now. The plaintiff has served no new report.

[49] Further, the defence has been aware since 2006 that there was neurological impairment involved in this case, yet chose to send the plaintiff to 5 experts who work in other areas.

[50] The plaintiff has filed no neurological report so there is no need to get into a discussion of “matching”.

[51] At the end of the day the defendant has failed to persuade me that there is a need for this examination or that depriving them of it would be unfair.

THE PLAINTIFF NEEDN’T TRAVEL TO HAMILTON TO SEE THIS DOCTOR

[52] Dr. Upton has filed an affidavit but not a curriculum vitae. While he may be the defendant’s doctor of choice, they have not put forward any factual basis for why the plaintiff should have to leave Toronto, home of several teaching hospitals and the majority of specialists in this province, to see a neurologist in Hamilton.

[53] The plaintiff’s affidavit in response to this motion appends a note from his physician, Dr. Leung, dated May 20, 2015. Dr. Leung states that his medical condition precludes prolonged sitting and he should therefore not travel to Hamilton.

[54] While it is not uncommon for plaintiffs to be asked to travel to Toronto for the purpose of defence medical examination, the opposite is rare, in view of the distribution of specialists in this province. I would expect to see some evidence from the moving party to, at least, explain why this request was being made. What is it about Dr. Upton that makes him particularly suited to dealing with this case? Nothing at all was filed here that provides the court with any insight on the point.

[55] Accordingly, had I granted leave and then granted the defendant entitlement to have the plaintiff seen by a neurologist, I would have adjourned for better evidence explaining why Dr. Upton was selected over all Toronto neurologists.

[56] This motion is therefore dismissed in its entirety. The costs of the motion are to the responding party, fixed at $5200, payable within 30 days.

(original signed)__

Master Joan M. Haberman

Released: October 13, 2015