ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ERIK O’BRIEN and LAURA O’BRIEN
Joseph Dallal, for the Plaintiffs/Moving Party
Plaintiffs/Moving Party
- and -
JEREMY HOLMES
Olivier Guillaume, for the Defendant/Responding Party
Defendant/Responding Party
The Honourable Mr. Justice J.R. Henderson
ENDORSEMENT ON MOTION FOR LEAVE TO APPEAL
[1] This is a motion brought by the plaintiffs for leave to appeal to Divisional Court from the decision of Lococo J. dated June 16, 2015, whereby the plaintiff, Erik O’Brien (“O’Brien”), was ordered to attend for a defence medical examination by Dr. Juan Carlos Negrete, a psychiatrist, in Montreal, Quebec.
[2] O’Brien was injured in a motor vehicle accident on August 21, 2009. His injuries include chronic pain for which he was prescribed medical marijuana by his family doctor, Dr. Lawrence. Subsequently, O’Brien was treated by a psychiatrist, Dr. Ennis, who diagnosed a Pain Disorder and provided an opinion that O’Brien met the diagnostic criteria for cannabis abuse.
[3] A defence medical examination was arranged for O’Brien with a psychologist, Dr. Switzman. After meeting with O’Brien and reviewing the medical reports, Dr. Switzman provided an expert report in which he diagnosed O’Brien with “Cannabis Use Disorder, Severe.”
[4] Thereafter, the plaintiffs obtained a future care costs report in which an occupational therapist costed a variety of treatment modalities including the use of medical marijuana.
[5] Then, the defendant brought the subject motion for an order for a further defence medical examination by Dr. Negrete. It was the defendant’s position that, unlike Dr. Switzman, Dr. Negrete was an addiction expert.
[6] Lococo J. granted the defendant’s motion and ordered O’Brien to attend before Dr. Negrete for a further medical examination. In doing so, Lococo J. correctly noted that pursuant to the legislation and the case law, the motions judge has the discretion to order a further defence medical examination, and in exercising that discretion the motions judge should consider the necessity for the further examination, the prejudice to the parties, and the fairness to the parties.
ANALYSIS
[7] In this motion for leave to appeal, the onus is on the plaintiffs to prove one of the two branches of Rule 62.02(4).
[8] In my view, the second branch, Rule 62.02(4)(b), cannot possibly apply in the present case because the proposed appeal does not involve “matters of such importance that... leave to appeal should be granted.” In order to satisfy this part of the test, the moving party must show that the matters of importance extend beyond the interest of the litigants and relate to matters of public importance or matters that are relevant to the development of the law and the administration of justice. In my view, this appeal may be important to the parties, but it is not a matter of public importance. In that respect, see the cases of Judson, v. Mitchele, (2011) 108 O.R. (3d), at para. 16, and Brownhall v. Her Majesty the Queen in Right of Canada, (2006) 80 O.R. (3d), at para. 29.
[9] Therefore, in order to obtain leave to appeal, the plaintiffs in the present case must satisfy the requirements of Rule 62.02(4)(a). In this case, that means that the plaintiffs must prove that “there is a conflicting decision by another judge or court in Ontario or elsewhere...” and “it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted.”
[10] In order to prove that there is a “conflicting decision” in a case involving the exercise of the court’s discretion, the moving party must demonstrate that another judge or court in Ontario or elsewhere has chosen a different principle or principles in the exercise of that discretion. In that respect, see the decision in Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 7 O.R. (2d) 542 (Div. Ct.) at p.544, and see the Brownhall case at paras. 27 and 28.
[11] In the subject motion, the plaintiffs opposed the request for a further defence medical examination by Dr. Negrete by submitting that Dr. Switzman had already conducted a defence medical examination, and that Dr. Switzman had already provided an opinion with respect to O’Brien’s cannabis issues. Therefore, the plaintiffs submitted that another defence medical examination by Dr. Negrete, an addiction expert, was not necessary, and would only serve to buttress the opinion provided by Dr. Switzman.
[12] In his oral decision, Lococo J. made the following statements:
That O’Brien’s use and addiction to marijuana was a central issue in the case;
That the plaintiffs’ future care costs report, prepared by the occupational therapist, was delivered after Dr. Switzman’s defence medical report;
That it would be appropriate for the court to have the benefit of expert evidence from a psychiatrist who specializes in addiction;
That evidence from a psychiatrist who specializes in addiction would be necessary and appropriate to address the substantial cost of medical marijuana;
That Dr. Negrete would qualify as an addiction expert and that it would be appropriate for his opinion evidence to be available to the court.
[13] I accept that the above-mentioned statements by Lococo J. deal with a consideration of whether the proposed further defence medical examination was necessary and fair. I also accept that Lococo J. took a broad approach to the exercise of his discretion. Clearly, Lococo J. felt that O’Brien’s use of marijuana was an important issue in the case and consequently that it would be beneficial to the court if it had expert evidence from an addiction expert.
[14] In my view, the approach taken by Lococo J. is in conflict with the narrower approach taken by Hambly J. in the case of Pinelli v. Chmura, 2006 34277 (ON SC), [2006] O.J. No. 4067.
[15] In the Pinelli case, at para. 15, Hambly J. adopted the following passage from para. 23 of the decision in Nelson v. Thiruchelvam 2005 4849 (ON SC), [2005] O.J. No. 743:
[23] It is also important to bear in mind that a defendant’s task at trial is not to “solve the problem” or “get to the bottom” of the plaintiff’s complaints. It is therefore not appropriate for them to expect the court to sanction defence medical examinations by medical practitioners with a view to providing a new medical diagnosis. For the most part, these experts are generally called upon to refute the diagnosis already provided by the plaintiff’s treating or expert witnesses and to provide a much rosier prognosis.
[16] Further, in Pinelli, at para. 17, Hambly J. wrote:
The flaw in this reasoning is that it is not for the defendant to provide treatment for the plaintiff. The defendant is entitled to an independent medical examination in order to defend the case advanced against it by the plaintiff.
[17] In summary, the approach taken in the Pinelli decision is that a further defence medical examination is necessary and fair only if it is for the purpose of responding to the plaintiff’s medical evidence. That is, the motion is to be decided on the basis of the defendant’s ability to respond to the plaintiff’s case. In the Pinelli approach, the fact that the proposed further defence expert has a more precise specialty or the fact that the proposed further defence expert would provide a benefit to the court, are not matters to be considered. Also, in the Pinelli approach, the fact that a more precise defence expert might help the court to “get to the bottom” of the plaintiff’s complaints, was not a factor for consideration.
[18] In the present case, the plaintiffs delivered reports from Dr. Lawrence and Dr. Ennis, and in response the defence medical expert, Dr. Switzman, delivered a defence medical report with respect to essentially the same issues. Consideration of whether the court might derive a benefit from another defence expert’s evidence is not within the scope of the Pinelli approach.
[19] Moreover, to the extent that Lococo J. found that Dr. Negrete’s further medical examination was necessary to respond to the future care costs report, again, I find that such a finding would be in conflict with the Pinelli decision as O’Brien’s occupational therapist did not provide any opinion as to O’Brien’s diagnosis or his need for medication.
[20] I find that the broad approach to this motion that was taken by Lococo J. is in conflict with the more narrow approach taken by Hambly J. in the Pinelli decision. Therefore, in my view, it would be desirable for this matter to be considered by an appellate court.
[21] Accordingly, leave is hereby granted to the plaintiffs to appeal this decision to Divisional Court.
Henderson J.
Released: November 13, 2015
COURT FILE NO.: 53148/11
DATE: 2015/11/13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ERIK O’BRIEN and LAURA O’BRIEN
Plaintiffs/Moving Party
- and -
JEREMY HOLMES
Defendant/Responding Party
ENDORSEMENT ON MOTION FOR LEAVE TO APPEAL
Henderson J.
Released: November 13, 2015