SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-07-335985
MOTION HEARD: OCTOBER 14, 2015

RE: Ray Anderson Trilokie

v.

Elizabeth Lasenby and Greyhound Canada Transportation Corporation

BEFORE: MASTER R.A. MUIR

COUNSEL:
Bahram Dehghan for the defendants
John Lea for the plaintiff

REASONS FOR DECISION

[1] This motion is brought by the defendants pursuant to section 105 of Courts of Justice Act, R.S.O. 1990, c. C.43 and Rule 33 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). The defendants seek an order requiring the plaintiff to attend a second defence psychiatric examination with Dr. Monte Bail. The plaintiff is opposed.

[2] This action arises from a motor vehicle accident on November 18, 2005. As a result of the accident, the plaintiff claims to have suffered various physical and psychological injuries. The plaintiff alleges that these injuries have seriously affected his ability to work and to engage in his usual day to day activities. The plaintiff seeks damages well in excess of $1,000,000.00.

[3] The defendants have admitted liability. The pleadings and the medical evidence filed on this motion make it clear that the plaintiff’s psychological condition will be the central focus of any assessment of damages.

[4] The parties agree that the applicable test on a motion of this nature is found in the decision of this court in Bonello v. Taylor, 2010 ONSC 5723. The applicable factors are set out at paragraph 16 of that decision as follows:

• 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;

• 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;

• 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;

• 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;

• 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;

• 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,

• 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.

[5] These are the factors I have considered in determining the issues on this motion. In my view, trial fairness requires that an order be made compelling the plaintiff to attend an examination by Dr. Bail.

[6] I come to this conclusion for several reasons. There is certainly no doubt that the plaintiff’s psychological health will be the central issue at trial. Both sides agree on this point.

[7] The report the defendants have from their first examination of the plaintiff will be more than five years old when this action goes to trial. A current assessment will assist the trier of fact. It will also improve the chances of a resolution at the second mediation session the parties have agreed to attend.

[8] It is also important to note the somewhat unusual circumstances surrounding the defendant’s first examination of the plaintiff. It was carried out in order to be available when the parties first attempted mediation in June 2011. This defence report was obtained before the plaintiff had served any similar medical/legal reports specifically obtained for the purposes of this tort action. Following the service of the defendants’ report, the plaintiff has delivered at least two such reports, with the latest being served in January 2015. In the ordinary course, a defendant would have an opportunity to respond to those reports by conducting an independent examination of the plaintiff and delivering its own report. The defendants in this action are now being denied an opportunity to examine the plaintiff with a view to responding to the plaintiff’s reports. The plaintiff argued that the defendants simply chose to examine the plaintiff too early and must now live with the consequences of that decision. In my view, the Rules should not be interpreted in such a way as to discourage early resolution of disputes. Encouraging a defendant to wait until the eve of trial to conduct its own medical examination of a plaintiff does not promote the just, expeditious and least expensive determination of civil proceedings as mandated by Rule 1.04 (1).

[9] It is also clear that a significant amount of new information is available today that was not available in 2011. This additional evidence includes the plaintiff’s expert reports as well as a large volume of production made by the plaintiff after the 2011 examination.

[10] The plaintiff argued that the psychiatrist who examined the plaintiff in 2011 could simply review his notes and conduct a paper review of the plaintiff’s reports and any other available documents. He would then be in a position to prepare an updated report. Such an argument may have some merit where the earlier report was conducted shortly before the new information became available. However, in my view the fact that the defence examination of the plaintiff took place nearly five years ago militates in favour of a further examination of the plaintiff.

[11] It also appears from the medical evidence that the plaintiff’s condition may be deteriorating. The evidence shows that the plaintiff has been suffering from significant psychological health issues for many years and certainly prior to 2011. However, the plaintiff’s most recent report from Dr. Gerber concludes that the plaintiff’s prognosis is very poor and that it is unlikely that his symptoms will significantly improve. Earlier reports concluded that the plaintiff’s condition was serious but described the plaintiff’s prognosis as guarded and noted that he would continue to struggle with his condition. In my view, Dr. Gerber’s report appears to be somewhat more pessimistic and suggests that the plaintiff’s psychological health is deteriorating. This factor also supports a second examination.

[12] Finally, there is no evidence of any significant prejudice or inconvenience to the plaintiff if the examination is ordered. The large volume of medical evidence generated by this proceeding demonstrates the plaintiff’s ability to attend and participate in medical examinations of this nature. The plaintiff is not working. One of the plaintiff’s experts described the plaintiff’s daily life as a round of medical appointments. There is no evidence that any harm will come to the plaintiff if he is forced to participate in this second defence examination. I also note that no further pre-trial date has been set and no further mediation date has been agreed to. The trial is scheduled for May 2016 and will not be delayed by this further examination. Any delays encountered in scheduling an appointment with Dr. Bail can be addressed by me in my capacity as case management master for this action.

[13] For these reasons, I have concluded that it is in the interest of trial fairness to grant the relief requested by the defendants.

[14] I therefore order as follows:

(a) the plaintiff shall attend at a defence psychiatric examination with Dr. Monte Bail on a date to be agreed to by the parties;

(b) in the event of any scheduling or other difficulties in relation to the examination, the parties may arrange for a case conference with me by contacting my assistant trial coordinator;

(c) the parties may also arrange for a case conference to address any issues with respect to the mediation, outstanding undertakings or other procedural matters within my jurisdiction; and,

(d) if the parties are unable to agree on the issue of costs they shall provide the court with brief submissions in writing by no later than November 13, 2015.

Master R.A. Muir

DATE: October 16, 2015