CITATION: Sharon Suzanne Chew v. Orlando Cruz Munoz et al., 2016 ONSC 1511
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sharon Suzanne Chew (Plaintiff)
AND:
Orlando Cruz Munoz, Reinaldo Carrillo and Intact Insurance Company formerly known as AXA Insurance Inc. (Defendants)
BEFORE: Justice H. A. Rady
COUNSEL: Alysia M. Christiaen, for the plaintiff Erika Webb, for the defendant Intact Insurance Company No one appearing, for the defendant Munoz et al.
HEARD: March 1, 2016
ENDORSEMENT
Introduction
1The defendant Intact Insurance Company seeks an order compelling the plaintiff to undergo an independent medical examination by a psychiatrist, Dr. Lawrie Reznek. The plaintiff opposes. An appointment has been scheduled for March 7, 2016 and will proceed then if the order is granted. For the reasons that follow, the motion must be dismissed.
Background
2By way of background, this action arises from a motor vehicle accident that occurred on May 11, 2010. Ms. Chew’s vehicle was struck by a vehicle driven by Mr. Munoz and owned by Mr. Carrillo. Ms. Chew alleges that she was injured and she seeks damages.
3The defendants other than Intact are defended by Bruce Mitchell. I am advised that the Carrillo policy limits are $200,000. Intact is Ms. Chew’s own insurer and it is sued pursuant to the underinsured provisions of her policy. The action was set down in October 2014 and in due course, a trial date was scheduled for September 26, 2016. A pre-trial is scheduled for April 1, 2016. The parties participated in a mediation in November 2015, which failed to resolve the matter.
4Counsel for Intact says that it only at the mediation that it became apparent that each side assessed the plaintiff’s damages differently. As a result, it says settlement prospects appeared to be poor and a trial is said to be a likelihood, if not inevitable.
5In any event, this motion was brought originally returnable February 23, 2016. The motion record is dated February 17, 2016. The first return date was adjourned on consent to March 1, 2016, less than a week before the proposed appointment. I am told Dr. Reznek can deliver a report in time for the pre-trial, although clearly any responding report from the plaintiff is most unlikely.
The Health Care Professionals
6Ms. Chew has been seen by a number of treating health care professionals including:
Registered Nurse Sherry Lawrence at the Regional Mental Health Care in St. Thomas from June 29, 2010 to March 9, 2011. Her records were served on opposing counsel in March 2013;
Psychologist Dr. Nicole Reist from March 27, 2012 to date. Her records were served in March 2013;
Psychiatrist Dr. Luthra at Homewood from April 12, 2013 to June 20, 2013. Those records were served in November 2013;
Neurologist Dr. Kathy Kaye from after the accident until October 2012. Her records have been served too.
7I understand that the plaintiff has delivered updated reports or records from the plaintiff’s treating physicians, as required by the Rules.
8The plaintiff has also undergone independent examinations at the request of her counsel by Dr. Iezzi, a psychologist, in July 2011; and by Dr. Grace, a neuropsychologist in February 2012. Their reports were served some time ago.
9On May 16, 2011, Ms. Chew attended a psychiatric assessment with Dr. Brian Hines on behalf of Intact (which is also Ms. Chew’s accident benefits insurer). She saw Dr. Tuff, a neuropsychologist on September 3, 2013 also on behalf of her insurer.
10On January 25, 2016, Intact’s counsel advised plaintiff’s counsel that an appointment had been arranged with Dr. Reznek.
The Law
11The relevant sections of s. 105 of the Courts of Justice Act provide 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.
(3) Where the question of a party’s physical or mental condition is first raised by another party, an order under this section shall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe there is substance to the allegation.
(4) The court may, on motion, order further physical or mental examinations.
12Rule 33.02 of the Rules of Civil Procedure provides:
(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.
13Rule 53.03 of the Rules also sets out timelines for the delivery of expert reports which I need not reproduce here. They are well known and are intended to ensure that a trial will proceed as scheduled, with no delays caused by late served reports. Another rationale for the timelines is to ensure that a pre-trial conference is effective and meaningful because the case is virtually trial ready.
14The decision whether to order an assessment is discretionary. The statute is permissive rather than mandatory.
15There is authority for the proposition that a defendant has a prima facie right to a first examination under the Courts of Justice Act. See LaForme v. Paul Revere Life Insurance Co., (2006), 2006 CanLII 81803 (ON SCDC), 84 O.R. (3d) 634 (Div. Ct.). Delay itself was not reason alone to deny relief: Beattie v. Grudinski, [2010] O.J. No. 449 (S.C.J.).
16The court is to consider the interests of justice and prejudice to the plaintiff.
Analysis and Disposition
17In this case, no real explanation has been given that persuades me that I should exercise my discretion to make the order sought. I am mindful of the case law that speaks to trial fairness and “levelling the playing field”. However, in this case, Intact has been in possession of the plaintiff’s medical records and reports for a considerable time and they have been delivered in a timely way. Why should the opposing party not be held to the same standard? It is difficult to quarrel with Ms. Christiaen’s submission that Intact made a strategic decision to rely on the other defendants to marshall the defence evidence. It has had a late change of heart, ostensibly because of the failed mediation. However, it still took until mid-February to bring this motion.
18On the other hand, the prospect of a meaningful and informed pre-trial is diminished if the court has only Dr. Reznek’s report and no response. Moreover, I share the plaintiff’s concern that her ability to secure a responding opinion in a timely way has the potential to jeopardize the trial date.
19I note as well that Intact has had the benefit of independent examinations by a psychiatrist and a neuropsychologist, albeit in the accident benefits context. Their evidence can be secured for trial.
20And of course, all of this begs the question whether a psychiatric opinion is necessary to respond to a psychological opinion. For the purposes of the motion, however, I need not address this issue.
21For these reasons, the motion is dismissed. If the parties cannot agree, I will receive brief written submissions on costs, first from the plaintiff by March 14, 2016 and then the defendant Intact by March 21, 2016.
“Justice H. A. Rady”
Justice H. A. Rady
Released: March 2, 2016