Ollivierre v. Thomasi, 2016 ONSC 1727
CITATION: Ollivierre v. Thomasi, 2016 ONSC 1727 BARRIE COURT FILE NO.: CV-12-0087 DATE: 20160310
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
SHANE OLLIVIERRE, MICHELLE OLLIVIERRE and TYRESE OLLIVIERRE (by his Litigation Guardian MICHELLE OLLIVIERRE) Plaintiffs
– and –
BAWNEE-MARIE THOMASI, NESTLE CANADA INC. and THE MANUFACTURERS LIFE INSURANCE COMPANY Defendants
COUNSEL: Kevin Henderson, for the Plaintiffs Michael Best, for the Defendants
HEARD: March 8, 2016
RULING ON MOTION
CHARNEY J.:
Introduction
[1] This is a motion brought under s. 105 of the Courts of Justice Act and Rule 33 of the Rules of Civil Procedure by the defendant, Bawnee-Marie Thomasi, seeking to compel the plaintiff, Shane Ollivierre (Shane), to attend a defence psychiatric assessment. Since this motion was brought after the matter was set down for trial, the defendant must also obtain an Order under Rule 48.04 of the Rules of Civil Procedure granting leave to bring this motion. Since the parties require this decision prior to the proposed examination that is scheduled for March 16, 2016, I heard the two motions together and will issue one decision.
Facts
[2] This action arose as a result of a motor vehicle accident which occurred on August 19, 2010. The action was commenced on January 24, 2012. The defendant Bawnee-Marie Thomasi is the only remaining defendant in this action.
[3] Shane alleges that he sustained serious physical and psychological injuries in the accident. These injuries include widespread pain as well as cognitive injuries and decreased memory. He alleges that he suffers from anxiety, panic and sleep disorders. His Statement of Claim claims $1,000,000 general damages and $500,000 for special damages in relation to these injuries.
[4] The plaintiff set the action down for trial on March 30, 2015. On June 26, 2015 the defendant consented to the action being set down for trial. The trial is scheduled to take place during the sittings commencing on May 16, 2016.
[5] The defendant’s file was transferred to the defendant’s current counsel, Mr. Best at Miller Thomson LLP, on February 2, 2016. Upon review of the file Mr. Best immediately sought to schedule a defence psychiatric examination with Dr. Peterkin for February 19, 2016. When the plaintiff refused, Mr. Best advised plaintiff’s counsel on February 10, 2016 of his intention to bring this motion, and brought this motion on February 23, 2016.
[6] The plaintiff has obtained a number of expert reports. Most of these reports were provided before June 26, 2015. These include one or more reports from an orthopaedic surgeon, a neurologist, and a neuropsychologist.
[7] Shane also obtained and filed reports subsequent to June 26, 2015, including a report by an Occupational Therapist and three reports by Dr. Gerber, a psychiatrist.
[8] The first of Dr. Gerber’s reports is dated May 15, 2015 (before the defendant consented to the action being set down for trial on June 26, 2015), but was not served on the defendant until July 7, 2015. It is Dr. Gerber’s reports that give rise to the defendant’s motions.
[9] In his initial assessment, which is 48 pages long, Dr. Gerber reported symptoms of posttraumatic stress disorder (PTSD) and ongoing depressive symptoms constituting “Chronic Adjustment Disorder” with depressed mood, ongoing symptoms of PTSD and chronic pain symptoms, and provides a detailed description of Shane’s psychiatric condition post-accident.
[10] The defendant wants the plaintiff to attend a defence psychiatric assessment with Dr. Peterkin so that they can reply to the Gerber report.
[11] The plaintiff takes the position that he has already undergone a defence psychiatric assessment and should not have to undergo a second assessment. The defendant arranged for Shane to attend a defence medical examination with Dr. Berry on March 30, 2015. Dr. Berry’s report was completed on May 22, 2015 (before the Gerber report was served on the defendants) and served on the plaintiffs on November 18, 2015. Dr. Berry is both a neurologist and a psychiatrist. While Dr. Berry’s report primarily responds to the neurology report of Dr. David Spence served by the plaintiff on June 6, 2012, it does make passing reference to psychiatric issues.
[12] The Berry report does not, of course, address the Gerber report, since the Gerber report was served after Berry completed his assessment. The defendant takes the position that the Berry report was directly responsive to Spence’s neurological report and does not respond to the Gerber report. The plaintiff takes the position, however, that Dr. Berry is a qualified psychiatrist, and could have written a response to Dr. Gerber without the need for the plaintiff to undergo a second assessment by a different psychiatrist.
[13] The plaintiff has agreed to undergo an assessment by a defence orthopaedic surgeon even though the request was not made until February 2, 2016.
Leave Under Rule 48.04
[14] Rule 48.04 provides that any party who has set an action down for trial or who has consented to the action being placed on the trial list shall not initiate any motion or form of discovery without leave of the court. The objective of this rule is to ensure that matters are not set down for trial until they are ready for trial in order to avoid delays and the loss of valuable court time (BNL Entertainment Inc. v. Ricketts 2015 ONSC 1737 at para. 11).
[15] In BNL Entertainment, Master Muir reviewed the competing case law for granting leave under Rule 48.04, and concludes at para. 14 that:
It is desirable for the court to apply a flexible test when exercising its discretion to grant leave under Rule 48.04(1). The court should consider all of the circumstances of the matter before it and make the order that is just in the circumstances of each particular case. This approach is consistent with the overall interpretive provision found in Rule 1.04(1) which requires that the Rules be “liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
[16] I agree with this analysis and adopt his conclusion. Given that the Gerber report was the first psychiatric report filed by the plaintiff, that it was not served by the plaintiff until after the defendant consented to the action being set down for trial, and that the defendant’s new counsel was not retained until the beginning of February 2016 and then proceeded expeditiously, I conclude that this is an appropriate case to grant leave under Rule 48.04(1) and to consider the defendant’s motion on its merits.
Section 105/Rule 33
[17] In Bonello v. Taylor, 2010 ONSC 5723, D.M. Brown J. (as he then was) summarized the applicable factors to be considered on a motion for a further or second defence medical examination. That decision recognized (at para. 15) that “The right to respond to a plaintiff’s expert report is a substantive one, involving principles of trial fairness.” While recognizing that the determination must turn on the specific equities of a case, one of the factors that the court identified is that (at para. 16): “A request may be legitimate where there is evidence that … the plaintiff served specialist reports from new assessors after the defendants had conducted their medical assessments…” That is the factor that the defendant relies upon in this case.
[18] In addition D.M. Brown J. commented on the issue of matching reports:
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.
[19] In the present case the plaintiff has determined that an assessment from a psychiatric expert – in addition to a neurologist - is relevant to the adjudication of his claim, and he has provided a 48-page report from Dr. Gerber in that regard. He does not deny that the defendant should have an opportunity to respond to the Gerber report, but takes the position that it must be Dr. Berry, who is both a neurologist and a psychiatrist, who does the response on the basis of his March 30, 2015 assessment.
[20] I have two difficulties with this position. The first is that regardless of Dr. Berry’s areas of expertise, the purpose of his earlier assessment was to respond Dr. Spence’s neurological assessment, and a review of Dr. Berry’s report confirms its focus on the neurological assessment. Certainly the principles of trial fairness entitle the defendant to an opportunity to conduct a specific examination – either by Dr. Berry or another qualified medical expert – to respond to the specific claims made in Dr. Gerber’s new reports. It would be unfair to require Dr. Berry to rely on his March 30, 2015 neurological assessment to draw conclusions in relation to Dr. Gerber’s later psychiatric assessment.
[21] My second difficulty is that once it is established that the defendant has the right to conduct a defence psychiatric examination, it should be up to the defence to decide who the expert will be, unless the plaintiff can point to a legitimate basis for objecting to that expert. No basis for objecting to Dr. Peterkin was raised by the plaintiff.
[22] In addition, there is no evidence that the request for this additional examination will impose an undue burden on the plaintiff. He has put the issue of his psychiatric health in issue in this case, and he cannot complain that a defence examination restricted to the issues raised by Dr. Gerber is too invasive. Nor is there any suggestion that the plaintiff does not have the time to attend the assessment on March 16, 2016.
[23] The defendant also seeks an order extending the time for service of Dr. Peterkin’s expert report since it will be served outside of the 60-day period set out in Rule 53.03(2). The Court has the authority to abridge the time for service of the report under Rule 53.03(4). Given my conclusion that the interests of trial fairness justify the order permitting the defendant to conduct a defence psychiatric examination, the same principle justifies the abridgment of time for the service of Dr. Peterkin’s report. An important factor in this decision is that the defendant did offer to conduct this examination as early as February 19, 2016, but this date was declined by the plaintiff.
[24] Finally, the defendant indicates that if it is permitted to file an expert report by Dr. Peterkin, the defendant will not object to any expert report obtained by the plaintiff with respect to that report.
Conclusion
[25] For the reasons given above, I make the following orders:
a. An Order granting leave to bring this motion
b. An Order requiring the plaintiff, Shane Ollivierre, to attend a defence medical assessment with Dr. Allan Peterkin, a psychiatrist, scheduled for March 16, 2016 at 1:45 p.m. at the Mount Sinai Hospital Department of Psychiatry, 600 University Avenue, Room 965C, Toronto, Ontario
c. An Order extending the time for service of the expert report of Dr. Peterkin.
[26] My inclination is to order no costs on this motion. While the defendant has been successful, the motion was necessary, in part, because he changed his solicitors so late in the game. That being said, if the parties cannot agree on costs of this motion or if there is a relevant settlement offer that I should take into account, the parties may serve and file written costs submissions of no more than three pages plus a bill of costs and offers to settle. The defendant should file her submissions within 20 days of this order, and the plaintiff 10 days thereafter.
Justice R.E. Charney
Released: March 10, 2016