CITATION: Lavecchia v. McGinn, 2016 ONSC 2193

COURT FILE NO.: 13-56846

DATE: March 30^th, 2016

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kim Lavecchia et.al., Plaintiffs

AND:

Leah McGinn et.al., Defendants

BEFORE: MASTER MACLEOD

COUNSEL: Joseph Y, Obagi, for the plaintiffs

Patrick H. Floyd, for the defendant, Johnston

Stephen A. Mullings, for the defendant, McGuinn

HEARD: March 30^th, 2016

REASONS FOR DECISION

1This is a motion brought by the defendants for an order pursuant to section 105 of the Courts of Justice Act and Rule 33. Each of the defendants seeks an order compelling the plaintiff to attend an examination with a physiatrist. The plaintiff does not dispute the right of each defendant to such an examination. The issue before the court is whether the plaintiff may impose terms on the exercise of the right and have those terms set out in a court order.

2This is an important practice point. The trial is scheduled to begin on June 6, 2016. Under the timetable established by Master Roger in February 2015 the defence expert reports were to have been served by February 19 of this year. The failure to reach agreement on terms required the defendants to bring this motion in breach of the timetable. This now threatens to imperil the trial date.

3For the reasons that follow I decline to order all of the conditions sought by the plaintiff and I am ordering the plaintiff to attend for the necessary examinations. In reaching this decision I am not unsympathetic to the objectives of plaintiff’s counsel in requesting these conditions. Nor do I wish to discourage the parties from negotiating standard form consents or orders in relation to independent medical examinations.

4I fully understand the argument by plaintiff’s counsel that there are benefits to a standard form of order precisely defining the scope of defence medical expert reports. In particular a widely accepted form of order might avoid problems at trial and might reduce the need for motions. In fact many of the terms sought by the plaintiff are not really controversial. On the other hand I agree with the defendants that the court should not be crafting such a standard form of order on a contested motion dealing with hypothetical problems which have not actually arisen in this case.

Background

5By way of brief background, the litigation concerns two car accidents suffered by the plaintiff on February 21, 2011 and August 9, 2011. The litigation was commenced in February 2013 and the pleadings were amended in February 2014. At a case conference in February 2015 Master Roger created a timetable for the proceeding including the trial date and pretrial date and deadlines for the exchange of expert reports.

6It was not until January 2016 that the defendants requested the plaintiff attend for medical examinations. The McGinn defendants requested the attendance of the plaintiff with Dr. Shanks in Kingston on February 18, 2016. The Johnston defendants requested the attendance of the plaintiff with Dr. Waseem on February 16, 2016 in Toronto. It was only at this point that the defendants were presented with the proposed draft order and the dispute about the terms of the defence medicals became apparent. It is worth noting that even if the plaintiff had attended for these examinations, the defendants could not have complied with Master Roger’s order requiring them to serve their expert reports by February 19, 2016.

7Although the defendants contend that they could not make arrangements for these medical examinations before they received the plaintiffs reports and obtained instructions as to whether or not to incur the expense, there is really no good reason to have left this issue to the last moment. In fact the terms under which defence medicals will take place are supposed to be discussed as part of the discovery plan required by rule 29.1. Moreover these law firms deal with each other regularly in personal injury matters and have previously encountered such demands for consent orders from the plaintiff’s lawyers.

8Be that as it may, the court must now decide whether to impose these terms by way of order under section 105.

The Proposed Terms

9The terms sought by the plaintiffs were set out in a draft order attached to a letter of February 3, 2016. They may be summarized as follows:

a) the curriculum vitae of the doctor was to be produced prior to the examination;

b) the examination was neither to be audio nor video recorded;

c) the plaintiff was not to be asked to complete any documents such as questionnaires at the examination;

d) defence counsel was to instruct the expert to include all of the information listed in rule 53.03 (2.1) including a signed form 53;

e) counsel was to provide an index of all medical records or reports provided to the doctor;

f) the doctor was not to express any opinions dealing directly or indirectly with liability;

g) the doctor was not to express any opinion on the credibility, character or truthfulness of the plaintiff;

h) health records and information of the plaintiff were not to be disclosed to any other person or entity other than defense counsel; and,

i) the defendant was to pay all reasonable expenses for the plaintiff to attend at the examination and was to pay $750.00 as an advance to defray the expenses with the balance to be paid upon submission of receipts.

10At the motion, it was conceded that items f) and g) above are worded too broadly. Plaintiff’s counsel acknowledges that a medical expert will be asked to opine on whether or not objective medical findings match the complaints of the plaintiff. Plaintiff’s counsel also concedes that a medical expert will be asked to give an opinion on causation and if possible to opine on the question of which accident was the cause of the plaintiff’s injuries. Of course a medical expert should not be asked to comment on the question of fault nor on the ultimate question of credibility since those are issues for the court to decide.

11It is also conceded that it is within the scope of a defence medical examination to utilize standard diagnostic tools and tests which in some cases could take the form of a questionnaire. In fact s. 105 (5) of the Act specifically provides that a party attending for medical examination under that section must answer the questions of the examining health practitioner and that the answers given are admissible in evidence. The point addressed by item c) above was quite fact specific. It arose because Mr. Mullings tried to schedule an appointment with Dr. Kleinman instead of Dr. Shanks. Dr. Kleinman had provided a 26 page “independent medical evaluation questionnaire” prepared by Assessmed and not by the doctor. I agree with Mr. Obagi that the questionnaire strays well beyond questions that are relevant to the formulation of a medical opinion and reads more like written interrogatories than a diagnostic tool. The issue is moot however because the defendant no longer intends to use Dr. Kleinman and there is no evidence to suggest that either Dr. Shanks or Dr. Waseem propose to use such a questionnaire.

12It is obvious why the defendants would have been unwilling to include items c), f) & g) in a court order worded in the way that they were. On most of the other points, the parties are in agreement. The defendants have agreed to pay the plaintiffs expenses of attending out-of-town. They have agreed to provide the CV of the doctor. They have agreed examinations are not to be recorded. They have agreed that the expert is required to comply with Rule 53.03 (2.1) in preparing his report. There is no question that the plaintiff’s counsel is entitled to know what medical records or reports are reviewed by the expert and counsel have agreed to provide an index. Item h) was an indirect way to prevent a “ghost written” report. The parties are in agreement that an expert report must be the report of the expert and not a report partly written by administrative staff or other individuals employed by the agency through which the doctor provides expert services.

13Each of these issues are issues which plaintiff’s counsel has encountered in recent trials or which have been the subject of recent jurisprudence. In El-Khodr v. Lackie for example, an expert called by the defendant admitted under cross examination by Mr. Obagi that much of her report was actually written by a “quality assurance” individual at Siden Health Care.¹ In Elbakhiet v. Palmer Mr. Obagi objected to an expert expressing an opinion on credibility and this and other issues provoked a five day voir dire.² For purposes of these reasons, I need not detail the evolution of the role of experts which has attracted the attention of the Supreme Court of Canada and the Court of Appeal as well as the Rules Committee.³ Suffice to say that there is merit to the argument that greater rigour and predictability concerning the role and use of experts might save time at trial and promote settlements.

14I do not however accept that the best approach is to be found in plaintiffs seeking to unilaterally impose restrictive terms on the conduct of defence medicals. Nor is it reasonable to have actions grind to a halt while the parties attempt to negotiate terms of a consent order as has happened here. A standard form of order may well be a very good idea. Standard form or model orders form an important element of insolvency practice on the Commercial List.⁴ The E-discovery Implementation Committee, a joint effort of the Ontario Bar Association and the Advocates Society has developed model documents including discovery plans and an alternative form of affidavit of documents.⁵ These are collaborative efforts involving various sectors of the bar and other stakeholders and have not been the result of adversarial proceedings though of course they are informed by jurisprudence.

15The plaintiffs assert that an order is required for an examination under s. 105 and that the court may impose terms when granting any order pursuant to Rule 37.13 and its inherent jurisdiction. There is no doubt the court may impose terms if there is a proper evidentiary record and it is appropriate to do so. It is true that an order under s. 105 is the only way to compel a plaintiff to attend for a defence medical examination. It is not correct that an order is required in all cases. Rule 33.08 specifically contemplates that a physical or mental examination may be conducted on the consent in writing of the parties. In Harris v. Canada Life Assurance Co.⁶ this court affirmed that a defendant is presumptively entitled to at least one order under s. 105 and subsequently the vast majority of such examinations are carried out on consent without an order.

16There is no longer any real dispute concerning the terms under which the defence medical examinations are to take place. Thus I agree with the defendants that there is no need to adjudicate on terms that are not in dispute or to set those terms out in an order which may then be used to suggest the court has approved or adjudicated on matters that have not been fully argued. It is of note that Rule 33.02 (1) specifies that an order may specify the time, place, purpose and name of the health practitioner but does not contemplate specific direction to the health practitioners. In fact the draft order would invite further complications by its overly broad language around liability and credibility.

17In conclusion, there will be an order that the plaintiff attend for medical examinations provided the defendants can arrange such an examination before the end of April and serve the reports by May 27^th, 2016.⁷ The reports must be Rule 53.03 (2.1) compliant and the examinations are not to be recorded unless otherwise agreed. The reasonable expenses of the plaintiff are to be paid by the defendants in accordance with the terms agreed upon.

18I am inclined not to award costs because of the lack of a discovery plan addressing this issue and because of the delay in seeking the defence medical examinations. I was asked not to rule on costs however because I am told there were offers to settle. Accordingly if any party seeks costs I may be spoken to.

March 30^th, 2016

Master MacLeod

Footnotes

1. 1Action no. CV-09-43686, transcript @ p. 10
2. 22012 ONSC 2529
3. 3R. V. Mohan 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 to Moore v. Getahun 2015 ONCA 55 and cases in between
4. 4Available on the court web site at www.ontariocourts.ca
5. 5Available on the Ontario Bar Association web site www.oba.org
6. 6(2002) 59 O/R/ (3d) 123 (S.C.J.)
7. 7There was no request before me to adjourn the trial and if any such request was made it would have to be the subject of a separate contested motion to a judge.