Kelly v. Toronto, 2016 ONSC 1895

CITATION: Kelly v. Toronto, 2016 ONSC 1895

COURT FILE NO.: CV-14-502702

MOTION HEARD: March 15, 2016

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Nichelle Kelly, a minor by her Litigation Guardian, Chrystal Kelly, Chrystal Kelly, and Cory Plummer, plaintiffs

AND:

Toronto Transit Commission and Gianni Gigliotti, defendants

BEFORE: Master Pope

COUNSEL: Ms. A. Christiaen, Counsel for the plaintiffs Fax: 519-932-3344

Mr. C. Townsend, Counsel for the defendants Fax: 416-338-0538

REASONS FOR DECISION

[1] The issue to be determined is whether the minor plaintiff, Nichelle Kelly, is required to attend an examination for discovery. Counsel advised that they resolved the issue of a further defence IME.

[2] Nichelle was four years old when she was injured in a bus accident on February 26, 2008. When she was attempting to board the bus, her foot got caught as the door was closing. As the bus drove away Nichelle was dragged a short distance and the front wheel of the bus drove over her left arm.

[3] Nichelle will be 13 years old on March 20, 2016.

[4] The major issue in this action is causation. Liability has been admitted by the defendants.

[5] Nichelle has seen numerous specialist doctors following the accident with respect to what, if any, are the ongoing neurological and/or psychological effects of the injuries from the accident. The contentious issue is with respect to whether Nichelle’s symptoms of attention deficit hyperactivity disorder (ADHD) were caused or contributed to by the accident and, if so, to what extent. In addition to ADHD, she has been diagnosed with oppositional defiant disorder and general anxiety disorder. Both parties have had her assessed by a neuropsychologist which will be discussed in more detail below.

[6] Nichelle’s parents have been examined for discovery.

[7] The defendants will agree to appropriate conditions being ordered with respect to the discovery of Nichelle, the same as those ordered in Lamothe (Litigation guardian of) v. Parkland School Division No. 63, [2007] S.J. No. 251, at paragraph 17.

[8] Defence counsel put plaintiffs’ counsel on notice in 2012 and 2013 that they were reserving their right to examine Nichelle. Plaintiffs’ counsel did not object at that time; however, in 2015 when defence counsel sought to examine Nichelle, plaintiffs’ counsel refused to allow the discovery.

[9] Rule 31.03(1) provides a party the right to examine the opposing party; however, the right is subject to rule 31.03(5) where it is provided that a person under a disability may be examined if he or she is competent to give evidence. There is no issue that Nichelle meets the definition of “person under a disability” under the Rules of Civil Procedure as she is a minor.

[10] The onus of establishing the proposition that the party is not competent to give evidence rests with the party seeking waiver of the discovery right. Persuasive medical evidence must be adduced that the plaintiff is unable to attend discovery. (Kidd v. Lake, 1998 CanLII 14714 (ON SC), [1998] O.J. No. 4078, para. 10)

[11] It is well accepted that a party does not have an absolute right to examine an adverse party for discovery if that adverse party is an infant. The court has discretion which should be exercised in accordance with the proper principles. Once a court has found that the infant is competent to give evidence, the court still has discretion to deny an examination of the infant, having regard to the court’s duty to protect the interest of the child. One example of when an examination should not be ordered is where it would be an exercise in futility. The court has a responsibility to protect children and ensure that damage is not done to them which cannot subsequently be repaired. The court ought to prevent the damage from occurring in the first place. (Bennett v. Hartemink, 1983 CarswellOnt 556, (Sup Ct), at paras. 6-7; Kidd at paras18-19)

[12] The evidence provided by the plaintiffs is a letter from Dr. Cheryl Alyman dated December 17, 2015 in which she responded to plaintiffs counsel’s request to address the issue of Nichelle’s attendance at an examination for discovery. Dr. Alyman is a neuropsychologist retained by plaintiffs’ counsel to conduct a neuropsychological assessment of Nichelle. The assessment took place in May 2014 when Nichelle was 11 years old. It is Dr. Alyman’s opinion that an examination for discovery would place undue stress on Nichelle given her psychological immaturity and disinhibited nature. She states that Nichelle is often anxious and uncomfortable in new situations, particularly if her parents are not around. In addition, it is her opinion that Nichelle would not have the capacity to understand the seriousness of the oath-taking process or have the capability to appreciate the role of the examination for discovery process. It was also her view that Nichelle would be unlikely to understand the implications of confabulating, exaggerating or downplaying an answer, and her testimony would most likely be invalid in several responses.

[13] The evidence provided by the defendants is a letter from Dr. Jo-Anne Finegan dated February 3, 2016 in which she responded to defendants counsel’s request to address the issue of Nichelle’s attendance at an examination for discovery. Dr. Finegan is a neuropsychologist retained by defence counsel to conduct a neuropsychological assessment of Nichelle. The assessment gook place recently in October 2015 when Nichelle was 12 ½ years old. It is Dr. Finegan’s opinion that Nichelle has the cognitive capacity to understand the difference between a lie and the truth. In addition, it is her view that if Nichelle is interviewed sensitively and with all due regard to her developmental stage, the discovery process should not harm her. She stated further that based on her direct assessment, Nichelle understood the purpose of the assessment and did not attempt to distort the reliability of the findings. Further, based on the results of the testing which were outlined, Nichelle exhibited no language comprehension difficulties as reported by Dr. Alyman. As such, Dr. Finegan disagreed with Dr. Alyman that language factors could distort any testimony.

[14] Dr. Finegan addressed Nichelle’s executive function difficulties associated with her ADHD where she can be “tangential in her conversational language”, but advised that this should not be seen as evasiveness or interpreted as dishonesty; rather, it is merely a reflection of her organisational difficulties as it is manifest in her oral language. Furthermore, it is her view that distortions, such as confabulation, exaggeration or minimisation, may be observed in any child or adult witness, and that should such distortions be suspected, it would not have to do with underlying language difficulties.

[15] Regarding Dr. Alyman’s concerns about stress of the discovery process, it is Dr. Finegan’s opinion that if the examination is handled with care and sensitivity that should be afforded any child, there is no clinical reason why Nichelle would find it more stressful than any other child.

[16] There is no issue regarding Nichelle’s competency to give evidence as required under Rule 30.03(5). Neither party took that position.

[17] The issue is whether attending an examination would cause psychological harm to Nichelle.

[18] I find Dr. Finegan’s evidence more persuasive than Dr. Alyman’s evidence because Dr. Finegan assessed Nichelle only five months ago in October 2015, whereas Dr. Alyman assessed her almost two years ago when she was 11 years old. In my view, the most recent evidence, particularly relating to a teenager, is the best evidence and most reliable. In reaching her opinions, Dr. Alyman relied on Nichelle’s “psychological immaturity” and her “cognitive status”, which it is reasonable to conclude, has improved with age.

[19] Further, the fact that Dr. Alyman felt that Nichelle was anxious and uncomfortable in new situations, can be assuaged by permitting her mother to be in the room during the examination, and the defendants agree to such condition.

[20] Dr. Alyman is concerned regarding Nichelle’s ability to understand the seriousness of the oath-taking process or to appreciate the role of the examinations for discovery process. Frankly, the test is capacity to give evidence, which is not in issue. Beyond that, the court has discretion to order the examination as long as it will cause no psychological harm to the child. I find that Dr. Alyman’s concerns are not relevant to the issue of psychological harm.

[21] The facts herein can be contrasted with the facts in Herrington v. Herrington, 2003 CarswellOnt 3383, where the seven year old plaintiff was allegedly sexually assaulted when she was four years old by the defendant who had pled guilty. The court refused to order the child to attend for discoveries based on the mother’s evidence that even she could not elicit information about the incident from the child. In the within action, Nichelle is much older than the child in Herrington, and further, Nichelle has discussed the events surrounding the accident to the medical assessors on numerous occasions. (For example, see Report of Dr. Alyman, August 26, 2014, at p. 21)

[22] Regarding Dr. Alyman’s opinion that the examination will cause undue stress, it is accepted that an examination will cause some level of stress to any person; however, with the safeguards or conditions as outlined in Lamothe, the level of stress ought to be reduced.

[23] Lastly, the plaintiffs submit that it is not necessary that the defendants examine Nichelle as they have examined both parents, they have been provided with all her medical documents, and Nichelle will have no recollection of the circumstances surrounding the accident. Clearly that is not the case as Nichelle recalled many details of the accident as set out in Dr. Alyman’s report of August 26, 2014. Secondly, causation is in issue in this action. As such, the defendants may wish to question Nichelle regarding her symptoms, medications and her activities. Further, the defendants have a right to examine all opposing parties and wish to exercise that right. Moreover, I accept defence counsel’s submission that had they been advised by plaintiffs’ counsel prior to the discoveries of the parents that they refused any discovery of Nichelle, their questioning of the parents may have been different.

[24] For the above reasons, I am satisfied that Nichelle is competent to give evidence and she will not suffer any psychological harm by attending an examination for discovery with conditions that will help to ensure no harm comes to her and to reduce any stress. Therefore, I grant the defendants’ motion. An order shall be issued compelling Nichelle Kelly to attend an examination for discovery on a date to be scheduled, with the same conditions as set out in the Lamothe decision at paragraph 17.

[25] As neither party sought costs, there shall be no order as to costs.

Master Lou Ann M. Pope

Date: March 17, 2016