Court File and Parties

COURT FILE NO.: CV-11-431449 MOTION HEARD: May 4, 2016 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Zhen Ling Yan and Xiao Qing Li, plaintiffs AND: Esmaeil Nabhani, defendant

BEFORE: Master Lou Ann M. Pope

COUNSEL: Adam Moras, Sokoloff Lawyers, for the plaintiffs Jason A. Rabin, Blouin, Dunn LLP, for the defendants

REASONS FOR DECISION

[1] The main issue on this motion is whether the plaintiff, Zhen Ling Yan (“plaintiff”), should be compelled to attend defence psychological, neurological and physiatry assessments pursuant to section 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and rule 33 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”).

[2] This action arises from a motor vehicle accident that occurred on August 19, 2009 in which the plaintiff claims to have sustained serious and permanent injuries as a result of the accident.

[3] The plaintiffs set the action down for trial on July 27, 2013 without the consent of the defendant. The action is scheduled for a pre-trial conference on July 18, 2016 and a jury trial commencing November 28, 2016 for 20 days. On the pre-trial certification form completed in or about December 3013, the defendant indicated that he intended to call six to eight witnesses and three to five experts, that no expert reports had been exchanged and that they would be exchanged in accordance with the timelines under the Rules. There is no dispute that the parties consented to scheduling the pre-trial conference and trial at trial scheduling court held on February 18, 2015.

[4] The plaintiff delivered reports from Dr. Scherer who conducted a psychological/vocational assessment in May 2013, Dr. Majl who conducted a neurological assessment in June 2013 and a future care cost report conducted in June 2013. None of the reports included a Form 53 Acknowledgment of Experts Duty.

[5] The defendant has not obtained any independent medical assessments of the plaintiff to date.

Leave to bring this motion: Rule 48.08(1)

[6] The plaintiffs assert that the defendant requires leave to bring this motion on the basis that the action was set down for trial on July 27, 2013 and he consented to scheduling the pre-trial and trial. The plaintiffs further submit that there is conflicting case law on this issue and for that reason I am entitled to follow the line of cases that I find more persuasive.

[7] The defendant submits that he is not required to obtain leave as he did not consent to have this action set down for trial and he did not consent to the action being placed on a trial list under rule 48.06(1).

[8] Rule 48.04(1) sets out the consequences of setting an action down for trial or consenting to setting it down for trial:

Subject to subrule (3), any party who has set an action down for trial and any party who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court. (emphasis added)

[9] Rules 48.06(1) and 48.07 relate to how and when a defended action is placed on a trial list in Toronto and the consequences thereof, as follows:

Rule 48.06(1) A defended action shall be placed on the appropriate trial list by the registrar sixty days after the action is set down for trial or if the consent in writing of every party other than the party who set the action down is filed earlier, on the date of filing. (emphasis added)

Rule 48.07 Where an action is placed on a trial list, (a) all parties shall be deemed to be ready for trial; and (b) the trial shall proceed when the action is reached on the trial list unless a judge orders otherwise.

[10] For the following reasons, I find that the defendant does not require leave to bring this motion under rule 48.04(1).

[11] In my opinion, Justice Perell in Fromm v. Rajani et al [2009] O.J. No. 3671 (S.C.J.), correctly analyzed and interpreted the rules relative to the steps required to move an action to trial, in particular, rules 48.02, 48.04, 48.06 and 48.07.

[12] Several years later Justice Stinson dealt with the same issue in Ananthamoorthy v. Ellison, 2013 ONSC 340, and followed the reasoning of Perell J. in Fromm. I concur with the reasons of Stinson J. which are succinctly stated as follows:

The regime for setting actions down for trial today is different than it was in 1992 when Hill v. Ortho was decided. No longer do parties file Certificates of Readiness nor are they, as they once were, deemed to have consented to an action being set down for trial. Now any party may set an action down for trial under rule 48.02(1) by serving and filing a trial record. Thereafter, the case is placed on a trial list after 60 days. Pursuant to rule 48.06(1), the 60 days may be abridged if every other party consents. The language in rule 48.04(1) that imposes a requirement for leave to bring a motion upon any party who has consented to the action being placed on a trial list is thus a reference to consent under rule 48.06(1). It should not be confused with the Toronto Region Certification Form to set pre-trial and trial dates.

[13] The defendant also relies on the decision in Arunasalam v. State Farm Mutual Automobile Insurance Company 2015 ONSC 5235, [2015] O.J. No. 4528, where Master Muir followed the decisions in Fromm and Ananthamoorthy in ruling that the defendant did not require leave to bring the motion under rule 48.04(1). Similarly, that action involved a request by the defendant for an order requiring the plaintiff to attend defence medical assessments where the action had been set down for trial and where the pre-trial conference and trial had been scheduled. Master Muir also addressed squarely the same issue raised by the plaintiffs herein, which he ultimately rejected, where some courts ruled that consenting to a trial date is the same as consenting to an action being placed on a trial list for the purposes of rule 48.04(1). (Rajendran v. Lalic (4 May 2015), Toronto CV-08-366893 (ONSC – Master); Marianayagam v. Akkad (27 July 2015), Toronto CV-11-429230 (ONSC – Master))

[14] Master Muir preferred and followed the approaches of Justices Perell and Stinson as referred to above and for the same reasons, I concur with his reasons as they apply to this action.

[15] As Master Muir identified, and I concur, he was not satisfied that the decisions in Fromm and Ananthamoorthy had been brought to the attention of Master Dash in Rajendran and Master Brott in Marianayagam. (para. 21)

[16] In my view there is simply no rule that requires a party who did not set an action down for trial or did not consent to placing an action on a trial list under rule 48.06(1) to seek leave to bring a motion up to the pre-trial conference. Had the Rules Committee intended that to be the case, it could have easily provided for such a rule. At the pre-trial conference, the judge or master will address the issue of any intended motions which must be completed before the trial. (Rule 50.08(1)((a)))

[17] The defendant herein did not set this action down for trial nor did he consent to abridge the 60-day timeline for the action to be placed on a trial list under rule 48.06(1); therefore, he was not deemed to be ready for trial pursuant to rule 48.07(a). Further, he indicated on the pre-trial certification form that he intended on calling three to five experts at trial. As this is a personal injury action, it is reasonable to infer the experts would be medical experts. Therefore, it cannot be said that the plaintiffs did not have notice that the defendants intended to obtain medical assessments of the plaintiffs.

[18] For the above reasons, I find that the defendant does not require leave to bring this motion under rule 48.04(1).

Defence Medical Assessments

[19] Section 105 of the Courts of Justice Act states that 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.

[20] Subsection 105(4) gives the court discretion to order further physical or mental examinations. Rule 33.02(2) provides that the court may order a second examination or further examinations on such terms respecting costs and other matters as are just.

[21] It is generally accepted law that a defendant is entitled to one independent medical assessment. The plaintiff herein accepts that proposition; however, submits that the defendant requires leave of the court given the timing of request.

[22] The leading principles on whether a court should order a second or further examination by a health practitioner was summarized by D. M. Brown J. in Bonello v. Taylor 2010 ONSC 5723, [2010] O.J. No. 4432, at para. 16. (and see George v. Landles [2012] O.J. No. 5158, at para.19) Brown J. held that the determination of whether to order a second or further examination must turn on the specific facts and equities of a case. The guiding principle is trial fairness. He went on to state at paragraph 16 (iii):

. . . 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 speciality based on an assessment of the plaintiff. Ordering further examinations may be just where they are necessary to enable the defendant fairly to investigate and call reasonable responding evidence at trial.

[23] The factors that a court will consider include the need for the examination, prejudice to the parties in allowing or disallowing the further examination, number of defence reports already obtained, any delay and increased costs, and whether fairness and justice require that a further defence medical examination be sanctioned.

[24] The defendant seeks to have the plaintiff examined by the following medical practitioners:

(a) Dr. Gordon Sawa who is a specialist in neurology certified by the Royal College of Physicians and Surgeons of Ontario since 1979, on June 8, 2016; (b) Dr. Ralph Lubbers who is a registered psychologist registered for autonomous practice by the College of Psychologists of Ontario, on June 3, 2016; (c) Dr. David Berbrayer who is a specialist in physical medicine and rehabilitation certified by the Royal College of Physicians and Surgeons of Canada and also by the American Board of Medical Specialties, on June 10, 2016.

[25] The defendant first sought to have the plaintiff assessed on March 7, 2016 and had scheduled the appointments for April 6, 8 and 21, 2016. Plaintiffs’ counsel refused the assessments on the basis that the defendant was out of time under the rules and required leave of the court.

[26] The plaintiff has put his physical and mental conditions in issue in paragraphs 10 through 15 of his statement of claim. He claims to have suffered physical injuries that have caused pain to parts of his body. In addition, he claims to have suffered headaches, dizziness, anxiety, depression, emotional shock and other emotional difficulties for which he was required to undergo rehabilitative treatment and procedures. Further, he claims a loss of income as a result of his injuries.

[27] The plaintiff has been assessed by numerous health practitioners both in the context of his accident benefits claim and this tort action. In particular, he was assessed by a physiatrist, psychologist, orthopaedic surgeon and a chronic pain specialist. The plaintiff obtained a psychological/vocational report from Dr. Scherer in May 2013, a neurology report from Dr. Majl in June 2013 and a future care cost report in June 2013. The future care cost report estimates future care costs ranging from a one-time cost of some $325,000 and annual costs of some $222,000.

[28] The defendant is unaware of what experts the plaintiffs intend to call at trial as they have not delivered an executed Form 53 from any of the medical practitioners who assessed the plaintiff.

[29] In conducting his psychological/vocational assessment, Dr. Scherer summarized the myriad of medical assessments conducted of the plaintiff. He noted that Dr. Wong, physiatrist, diagnosed the plaintiff with moderate myofascial injury to the left side of the cervical paraspinal muscles, as well as facet joint ligament strain from C1 to C3 which was impinging on the occipital nerve and causing headaches, myofascial moderate injury of the right side of thoracic spine muscles with referred pain to the right shoulder and right arm, right rotator cuff tendinitis, post-traumatic insomnia, and psychological problems, notably anxiety. It was Dr. Scherer’s opinion that the plaintiff is clinically depressed. His diagnosis is that of adjustment disorder with mixed anxiety and depressed mood, moderate. He is at risk of major depression. He further states that psychological factors likely impact on his pain experience and complicate his recovery in a myriad of ways. His opinion is that the plaintiff is not employable on either a part-time or full-time basis but that with further improvement there is some prospect of work integration most likely on a part-time basis.

[30] The plaintiff was referred to Dr. Majl, neurologist, by his family doctor for assessment of headache and neck pain. The plaintiff told Dr. Majl that he hit his head on the steering wheel and windshield during the accident. In Dr. Majl’s report to plaintiffs’ counsel, he concluded that the plaintiff’s headaches are the result of the subject accident and they are multifactorial in origin; namely, physical, cognitive and behavioural symptoms of post-concussive syndrome, post-traumatic tension headaches, and cervicogenic headaches. He states that the headaches are the result of damage to the C1-3 facet joints, periosteum, and ligaments or trauma to the greater occipital nerves.

[31] I agree that the plaintiff’s complaints are chronic pain in nature such that they cannot be objectively seen in diagnostic tests.

Neurological Assessment

[32] In my view, the defendant has satisfied his onus to demonstrate that this assessment is necessary. The opinion of the plaintiff’s neurologist, Dr. Majl, is that his headaches are multifactorial in origin and particularly that they are cervicogenic headaches resulting from damage to the C1-3 facet joints. Dr. Majl’s diagnosis raises the issue of possible neurologic damage which was also diagnosed earlier by Dr. Wong. Therefore, I find that it would be unfair for the defendant to have to conduct the trial without the benefit of responding to the plaintiff’s expert with his own expert from the same specialty.

[33] I also find that there will be no prejudice to the plaintiff in being assessed by Dr. Sawa. The defendant will be responsible to bear the costs of that assessment.

Psychological Assessment

[34] The plaintiff has clearly put his psychological condition in issue in the statement of claim. More than one psychologist has diagnosed him with adjustment disorder resulting from the accident, including the plaintiff’s assessor, Dr. Scherer, who concurred with an earlier diagnosis in 2011. I agree that Dr. Scherer’s diagnosis in 2013 confirms that the plaintiff has a continuing psychological condition. Further, Dr. Scherer’s opinion that the plaintiff was not employable is significant as it will affect his future care costs, which were estimated to be considerably high.

[35] Given the above facts, it is my opinion that the defendant would be severely prejudiced if he had to conduct the trial without the benefit of an independent psychological assessment of the plaintiff. Conversely, there will be no prejudice to the plaintiff to have to attend an assessment.

[36] For those reasons, I am satisfied that the defendant ought to be entitled to a psychological assessment of the plaintiff by Dr. Lubbers.

Physiatry Assessment

[37] In his statement of claim, the plaintiff claimed to have suffered pain as a result of the physical injuries sustained in the accident. Further, he claims to have hit his head on the steering wheel and the windshield. Dr. Wong, physiatrist, diagnosed him with myofascial injuries including referred pain to the right shoulder and right arm, right rotator cuff tendinitis.

[38] Dr. Berbrayer’s specialty is in physical medicine and rehabilitation. His areas of specialty include dealing with complex musculoskeletal and soft tissue injuries and he states that he is experienced in dealing with chronic pain syndrome from a soft tissue/strain and musculoskeletal perspective.

[39] Dr. Scherer’s opinion is that the plaintiff is unemployable but that with further improvement there is some prospect of work integration most likely on a part-time basis. Given that Dr. Berbrayer’s speciality is in rehabilitation, he is qualified to assess the plaintiff and provide an opinion on the issue of employability and ability to rehabilitate. The issue of employability is of significance in this action given Dr. Scherer’s opinion. If the trier of fact, in this case the jury, accepts Dr. Scherer’s opinion, undoubtedly the damage award will be much higher than if the plaintiff is found to be employable.

[40] Further, there are numerous medical opinions to date which diagnose the plaintiff with physical impairments resulting from the accident, which Dr. Berbrayer is qualified to assess.

[41] For the above reasons, it is my view that it would be unfair to the defendant to have to conduct trial without the benefit of a response to the various medical opinions, including Dr. Scherer’s, regarding the plaintiff’s physical complaints and, importantly, his ability to rehabilitate in order to return to the workforce.

[42] Therefore, I am satisfied that the defendant ought to be entitled to a physiatry assessment by Dr. Berbrayer.

Delay

[43] Had the plaintiff agreed to the defendant’s proposed assessment back in early March 2016 when first requested, the assessments would now have been completed and the reports would very likely have been delivered in time to meet the 60-day timeline under rule 53.03 for service of responding reports. Therefore, I find that the plaintiff’s refusal caused the delay in the defendant being able to meet that timeline. As such, the defendant shall be granted an extension of time to serve his expert reports up to the date of the pre-trial conference scheduled for July 18, 2016.

Disposition

[44] The following orders shall be issued:

(a) the plaintiff, Zhen Ling Yan, shall attend defence medical assessments, at the defendant’s expense, as follows: Dr. Gordon Sawa on June 8, 2016; Dr. Ralph Lubbers on June 3, 2016; Dr. David Berbrayer on June 10, 2016.

(b) the defendant shall be granted an extension of time to serve the reports from the above three medical practitioners up to the date of the pre-trial conference.

Costs

[45] The defendant was successful on all relief sought; therefore, he is entitled to his costs on a partial indemnity basis.

[46] The defendant made an offer to settle the motion on April 22, 2016; however, the offer does not meet the criteria under rule 49.10(1) because the offer expired before the commencement of the hearing. The offer was open until Monday, April 25, 2016.

[47] However, pursuant to rule 57.01(1)(i), a court may consider any other matter relevant to the question of costs. As such, I have taken the defendant’s offer to settle into consideration in fixing costs of this motion because the offer was for the three defence assessments and payment of $1,000 in costs payable by the plaintiffs.

[48] The amount sought by the defendant of some $8,000 for partial indemnity costs is, in my view, excessive. For example, almost $1,000 is being sought for two students to meet with the three doctors to sign their affidavits. It is my view that a fair and reasonable amount for costs in the circumstances is $4,000, inclusive, which is so ordered, payable within 30 days.

(original signed) Master Lou Ann M. Pope Date: May 12, 2016