Leo v. Hadzalic, 2016 ONSC 1924

Leo v. Hadzalic, 2016 ONSC 1924

CITATION: Leo v. Hadzalic, 2016 ONSC 1924

COURT FILE NO.: CV-13-59423

DATE: 2016/03/21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Roberto Angelo Leo, Plaintiff

AND

Ivan Hadzalic and Nevenka Hadzalic, Defendants

BEFORE: Justice Stanley Kershman

COUNSEL: Alan J. Clausi, counsel for the Plaintiff

Pat Peloso and Kelly Fitzpatrick, counsel for the Defendants

HEARD: February 19, 2016

Reasons for decision

S. KERSHMAN J.

Introduction

1The Defendants bring a motion to compel the Plaintiff to attend a defence medical examination with Dr. Hugh Cameron in Toronto without the requirement of having the examination audio recorded. The issue of bringing a chaperone to monitor the examination has been resolved.

Factual Background

2This action arises out of a motor vehicle accident that occurred on September 25, 2013 at the intersection of Bank Street and Heron Road in Ottawa. The action was commenced on November 26, 2013. The Defendants served and filed a statement of defence on January 14, 2014.

3The Plaintiff maintains that as a result of the accident he sustained a right shoulder tear as well as soft tissue injuries to his lower back and left knee.

4The Plaintiff has been assessed by two orthopedic surgeons in relation to his alleged accident-related injuries. To date, the Defendants have not had the Plaintiff assessed by an orthopedic surgeon.

5The Defendants have attempted to set up an independent medical exam (IME) with Dr. Hugh Cameron, an orthopedic surgeon in Toronto. The Plaintiff’s solicitor sought various conditions with respect to the examination, most of which were agreed to. The only condition in contention is whether there can be an audio recording of the examination.

Procedural Issue

6A procedural argument was raised by the Plaintiff that the Defendants had not provided the appropriate evidence to support the present motion, because the affidavit in support of the motion was provided by a lawyer and not Dr. Cameron.

7The Court is satisfied that the lawyer’s affidavit is sufficient for the purpose of bringing this motion in the circumstances of this case. Therefore, the Court finds that the Defendants have adduced the appropriate evidence to support this motion.

Substantive Issue

8Are there “substantial and compelling” reasons to order an audio recording of Dr. Cameron’s examination of the Plaintiff?

The Law

9Section 105(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, reads 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.

10Rules 33.01, 33.03 and 33.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provide the Court with the authority to determine any dispute regarding scope of medical assessments conducted for the purpose of litigation:

33.01 A motion by an adverse party for an order under section 105 of the Courts of Justice Act for the physical or mental examination of a party whose physical or mental condition is in question in a proceeding shall be made on notice to every other party.

33.03 The court may on motion determine any dispute relating to the scope of an examination.

33.06 After conducting an examination, the examining health practitioner shall prepare a written report setting out his or her observations, the results of any tests made and his or her conclusions, diagnosis and prognosis and shall forthwith provide the report to the party who obtained the order.

11Rule 53.03 of the Rules of Civil Procedure requires experts to comply with this section and to sign Form 53 to acknowledge that the expert has a duty to provide opinion evidence that is fair, objective and non-partisan; to provide opinion evidence that is related only to matters that are within that expert’s area of expertise; and to provide such additional assistance as the court may reasonably require, to determine a matter in issue.

53.03 (1) A party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference scheduled under subrule 50.02 (1) or (2), serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1).

(2) A party who intends to call an expert witness at trial to respond to the expert witness of another party shall, not less than 60 days before the pre-trial conference, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1).

(2.1) A report provided for the purposes of subrule (1) or (2) shall contain the following information:

1. The expert’s name, address and area of expertise.

2. The expert’s qualifications and employment and educational experiences in his or her area of expertise.

3. The instructions provided to the expert in relation to the proceeding.

4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.

5. The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.

6. The expert’s reasons for his or her opinion, including,

i. a description of the factual assumptions on which the opinion is based,

ii. a description of any research conducted by the expert that led him or her to form the opinion, and

iii. a list of every document, if any, relied on by the expert in forming the opinion.

7. An acknowledgement of expert’s duty (Form 53) signed by the expert.

Defendants’ Position

12The Defendants argue that there are no substantial and compelling reasons to order the recording. They rely on rules 33.01 and 33.03 of the Rules of Civil Procedure, which deal with the handling of disputes in relation to medical exams.

13The Defendants rely on Bellamy v. Johnson (1992), 1992 7491 (ON CA), 8 O.R. (3d) 591 (C.A.) [Bellamy], in which the Court of Appeal said that “[b]y virtue of the [Courts of Justice Act] and the [Rules of Civil Procedure], the plaintiff is obliged to submit to physical or mental examination and to answer any relevant questions asked by the examiner.”

14The Plaintiff also relies on the case of Sousa v. Akulu (2006), 36 C.P.C. (6th) 162 (Ont. S.C.) [Akulu]. In that case, at paragraph 15, the Court held that:

In order to maximize fairness, and attempt to keep the parties on an equal basis at a pre-trial and trial, the parties should as much as possible be granted equivalent tactical and strategic advantages. In the same way as a plaintiff has a right to select its physician of choice throughout the litigation, the rules provide that the defendant has a prima facie right to select its physician of choice to conduct the defence medical(s).

15The Defendant also relies on the case of Adams v. Cook, 2010 ONCA 293, 100 O.R. (3d) 1 [Adams], and Alladina v. Calvo, 2014 ONSC 2550, 54 C.P.C. (7th) 310 [Alladina], to deal with the issue of recording of medical examinations.

Plaintiff’s Position

16The Plaintiff argues that the examination should be audio recorded using a very thin pen-like device for the purpose of accuracy of the examination. He also relies on the Bellamy case.

17The Plaintiff argues that Dr. Cameron has been put forward as an expert witness in various cases, including Gaukel v. Thukral (2008), 2008 45544 (ON SC), 68 C.C.L.I. (4th) 240 (Ont. S.C.) [Thukral], Esterreicher v. Non-Marine Underwriters, Members of Lloyd's [Esterreicher], a Financial Services Commission of Ontario arbitration decision of 2008, and Ross v. Bacchus, 2013 ONSC 7773, [2014] I.L.R. I-5536 [Bacchus].

18The Plaintiff argues that Dr. Cameron’s expert opinion was discounted or rejected by the Courts in these cases.

19In addition, the Plaintiff relies on a number of other cases including Willits v. Johnson, 2003 14047 (Ont. S.C.), Willits v. Johnson, 2003 38123 (ON SCDC), 178 O.A.C. 369 (Div. Ct.), and Byczko v. Hamilton, 2005 55310 (Ont. S.C.).

Analysis

20The leading case in the area is that of Bellamy. In that case, the Defendant brought a motion to require the Plaintiff to submit to a medical examination and not bring a tape recorder to the examination.

21Brooke J.A. stated that the Court had the jurisdiction to set the terms and conditions relating to the examination, including a condition relating to the recording of the examination, if justice required.

22The majority of the Court of Appeal in Bellamy held that the examination would proceed, that it would not be recorded, and that there was no evidence that any injustice had occurred.

23In the Bellamy case Brooke J.A. said at paragraph 8:

By virtue of the statue and the rules, the plaintiff is obliged to submit to a physical and mental examination to answer any relevant questions asked by the examiner … The Plaintiff has no right to determine how the examination is to be conducted or whether it is to be recorded. However, the judgment of the doctor as to how the examination is to be conducted is not final, and the court has jurisdiction to set terms and conditions relating to the examination including a condition to the recording of the examination.

24At paragraph 15, Doherty J.A. stated:

I have read the reasons of Brooke J.A. I agree with him that a party who is undergoing a medical examination pursuant to s. 118 of the Courts of Justice Act, R.S.O. 1990 c-43 has no right to record the conversations which occur during the examination. I also agree with my colleague that the court, as part of its obligation to supervise the discovery process, may in an appropriate case permit the recording of those conversations.

25Doherty J.A. stated at paragraph 17:

In deciding whether to permit the tape recording of conversations which occurred during a “defence medical”, the court must consider the potential impact of that recording on:

(1) The opposing party’s ability to learn the case it has to meet by obtaining an effective medical evaluation;

(2) The likelihood of achieving a reasonable pretrial settlement;

(3) The fairness and effectiveness of the trial.

26In his analysis at paragraph 31, Doherty J.A. said:

In any event, merely permitting the plaintiff to tape record statements made during the medical examination would not necessarily result in a more reliable or more complete recording of what was said … Without appropriate safeguards, merely permitting the plaintiff to take a tape recorder into the medical examination would not promote the likelihood of reasonable pre-trial settlements, or enhance the fairness or effectiveness of the trial.

27In this case, the Plaintiff has already had two medical examinations conducted by his own experts, and neither of those examinations was recorded.

28As stated in Akulu, the Plaintiff has the onus to show compelling reasons why the Court should permit audio recording during a defence medical. At paragraph 19, the Court said “[t]he evidence of the plaintiff’s poor memory and lack of English proficiency is weak. The evidence before the court on these issues does not outweigh the prejudice the defendants would suffer if they were forced to conduct a defence medical examination with a physician not of their choice”.

29No evidence was provided that the Plaintiff has a poor memory or that his English proficiency is weak.

30In Alladina, at paragraph 33, the Court said:

The only other limited circumstances in which courts have ordered videotaping of a defence medical assessment is where there is evidence that a plaintiff suffered from such significant injuries, cognitive defects, or language impairment that it would either impact the ability of the plaintiff to participate in the assessment itself or render the plaintiff incapable of properly describing to her own counsel what took place during the assessment”.

31No evidence was adduced in the present case that would fall within the parameters of paragraph 33 of the Alladina case. There is no evidence of the Plaintiff having a poor memory or of his English proficiency being weak or of significant injuries. Lastly, there is no evidence of cognitive issues.

32In this case, the Court finds that the Plaintiff has failed to show a substantial and compelling reason for the audio recording of the defence medical examination.

Allegation that Dr. Cameron is Biased

Plaintiff’s Position

33The Plaintiff argues that Dr. Cameron is biased or has an alleged bias and therefore the examination should be recorded.

34The Plaintiff argues that past adverse findings against an expert who has been found by other Courts to be a partisan advocate on behalf of the defence seriously weakens the credibility and weight of the of expert’s evidence. He relies on the case of Bakalenikov v. Semkiw, 2010 ONSC 4928.

35The Plaintiff argues that adverse findings have been made against Dr. Cameron in several cases, including Thukral, Esterreicher and Bacchus.

Defendants’ Position

36The Defendants rely on the Bellamy case and argue that the alleged bias of Dr. Cameron’s orientation is immaterial, because there has been no report to the College of Physicians and Surgeons.

37The Defendants rely on the Alladina case to argue that the issue of bias is not a sufficient reason to require the examination to be audio recorded.

Analysis

38In Alladina at paragraph 25 the Court said, “[c]ourts have acknowledged that the requirement for expert evidence is that it be objective and impartial, and that the fact that two experts disagree does not demonstrate bias”. At paragraph 27 the Court said, “[t]he Civil Rules Committee also chose not to modify Rule 33 to permit routine videotaping or audiotaping of defence medical examinations, despite being invited to consider the issue by Armstrong J. A. in Adams”.

39At paragraph 32 the Court went on to say “[f]urther, the courts have held that a plaintiff will have a significant tactical advantage if the defence medical assessment is videotaped but the plaintiff’s assessment is not videotaped. The courts have relied on this factor as further support for the requirement for compelling and substantive reasons to order videotaping”.

40In Akulu at paragraph 15, the Court stated the following:

In order to maximize fairness, and attempt to keep the parties on an equal basis at a pre-trial and trial, the parties should as much as possible be granted equivalent tactical and strategic advantages. In the same way as a plaintiff has a right to select its physician of choice throughout the litigation, the rules provide that the defendant has a prima facie right to select its physician of choice to conduct the defence medical(s).

41In the present case, the Court acknowledges that the relief being sought is audio-recording and not video-recording. Notwithstanding the different type of recording being sought, the Court finds that the potential for a significant tactical advantage does come into play. The Plaintiff has already had two assessments, neither of which has been audio or video recorded.

42In the Alladina case at paragraph 80, the Court said:

Finally, it should not be assumed that simply because a health practitioner provides assessments primarily for plaintiffs or defendants, or earns a significant income from assessments … there is a reasonable apprehension of bias. Those health practitioners have the same obligation to be objective and the same requirement for professional integrity before the courts, and acting for one side more than the other on an overall scale or frequently conducting and assessments are not valid bases to find a reasonable apprehension of bias.

43In the Bellamy case, at paragraph 6, the Court refers to the Divisional Court endorsement in the matter which deals with the issue of bias and reads, “[s]econdly, the alleged bias of a doctor’s orientation is immaterial short of misconduct and should be subject to a report to the College of Physicians and Surgeons. No such conduct is alleged here.”

44In the Adams case at paragraph 23, the Court said that “[i]t is not enough simply to allege general bias on the part of doctors who do defence medicals in order to obtain such an order”.

45The Court finds that the fact that a doctor does examinations for the most part for either the Plaintiff or the Defendant does not indicate a bias on the part of that doctor.

46The Court finds that while the Plaintiff has raised concerns about Dr. Cameron, these concerns do not satisfy the assertions of bias or lack of competence by Dr. Cameron. Furthermore, no misconduct is alleged and there is no misconduct that is subject to a report to the College of Physicians and Surgeons.

47The fact that several decisions have not accepted the evidence of Dr. Cameron is not a substantial and compelling reason to allow the recording of the examination.

48The fact that the recording device may be the size of a pencil, as opposed to a small tape recorder or other recording device, is no reason to change the previous rulings on whether recordings are acceptable.

49While Dr. Cameron may provide more defence medical examinations than plaintiff medical examinations; he has the obligation to be objective. Furthermore, he is required to act in a professional manner and with integrity when providing evidence to courts. Based on Dr. Cameron having an obligation to be objective and being subject to the same requirements of professional integrity before the courts as other experts, the Court does not find that there is a bias or apprehension of bias by Dr. Cameron.

50Furthermore, the Plaintiff has the right to cross-examine Dr. Cameron at trial.

51In conclusion, the Court does not find that the Plaintiff has presented substantial and compelling reasons why the medical examination should be recorded.

Costs

52Both parties submitted Costs Outlines.

53The Defendants were successful on the motion and therefore are entitled to their costs. The Defendants seek costs on a partial indemnity basis of $8,344.99, on a substantial basis of $10,489.73 and on a full basis of $11,562.10.

54Pursuant to the factors set out in rule 57.01(1) of the Rules of Civil Procedure, the Court finds that 1) the amount of the damages claim is in excess of $500,000; 2) the issue is important to both sides; 3) the issue was not particularly complex; and 4) the issue of the examination was more important to the Plaintiff than the Defendants.

55Based on the aforesaid factors, the Court fixes costs of the Defendants payable by the Plaintiff at the sum of $7,500 inclusive of disbursements and HST. These costs are to be payable at the conclusion of the matter, whether by trial or some other form of resolution.

56Order accordingly.