Daggitt v. Campbell et al.

[Indexed as: Daggitt v. Campbell]

Ontario Reports Ontario Superior Court of Justice, MacLeod-Beliveau J. April 28, 2016 131 O.R. (3d) 423 | 2016 ONSC 2742

Counsel: Joseph Dart, for plaintiff. Richard J. Campbell, for defendants.

MACLEOD-BELIVEAU J. : —

[1] This is a motion brought by the defendant Matthew Campbell for an independent medical examination of the plaintiff with psychiatrist Dr. Monte Bail pursuant to s. 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 plaintiff opposes the request for an independent medical assessment by a psychiatrist, and in particular by Dr. Bail, but is agreeable to an independent medical examination by a psychologist or a neuropsychologist. However, the defendant Matthew Campbell does not seek this relief in the motion.

[2] The motion is dismissed. There is insufficient evidence to warrant an order for an independent medical examination by a psychiatrist. Costs of the motion are reserved.

The Issues

[3] The issues in this case are

(i) should the plaintiff be required to undergo an independent medical examination by a psychiatrist;

(ii) if so, should the plaintiff be required to undergo that examination conducted by psychiatrist Dr. Monte Bail;

(iii) if the plaintiff is required to undergo an examination, what terms of that examination, if any, should be imposed by the court?

Positions of the Parties

[4] The plaintiff's position is twofold. First, the plaintiff submits that the defendant is not entitled to an independent medical examination by a psychiatrist as the plaintiff was never treated by a psychiatrist and because there is insufficient evidence of why an assessment by a psychiatrist is warranted. The plaintiff asks that the motion be dismissed. Second, the plaintiff submits that Dr. Monte Bail, the psychiatrist chosen by the defendants, has demonstrated such clear and definitive defence bias in many previous cases that the court should decline to make any order allowing any independent medical examination by Dr. Monte Bail in particular.

[5] The defendants' position is that they can decide what speciality of medical doctor they wish to have examine the plaintiff. The defendants submit that to properly defend the claim, they need to provide opinion evidence as to the plaintiff's depression and mental health-related injuries from a psychiatrist and that they can select any qualified psychiatrist of their choice. Dr. Monte Bail is the psychiatrist of choice selected by Mr. Todd McCarthy, trial counsel for the defendants, in spite of objections raised by the plaintiff as to previous findings that Dr. Bail was not credible and failed to honour his written undertaking to the court in rule 4.1.01. The defendants ask that the motion be granted. A tentative date for the examination by Dr. Bail has been booked for May 30, 2016.

Background Facts

[6] The plaintiff was travelling northbound on Battersea Road near Kingston, Ontario on November 16, 2012 when an unidentified vehicle suddenly pulled from the shoulder onto the roadway directly in her path and did a U-turn. The plaintiff braked. The defendant Campbell's vehicle was travelling directly behind the plaintiff and rear-ended the plaintiff's vehicle. The unidentified driver fled the scene. The plaintiff's vehicle was a write-off.

[7] At the time of the accident, the plaintiff was a manager in the fast food industry. She has been unable to return to work and suffers from chronic pain.

[8] The plaintiff commenced an action against both other drivers. The action against the unidentified driver has been discontinued, and the claim against the defendant Campbell is being defended.

[9] The plaintiff claims, in her statement of claim, loss of income, loss of earning capacity and loss of competitive advantage. In addition, the plaintiff claims damages for generalized injuries including soft tissue injuries, sleep disruption, headaches, reduced range of motion, pain and suffering, limitations and loss of enjoyment of life. The plaintiff attributes her physical and psychological injuries to the accident.

[10] While the statement of claim makes no specific reference to mental health-related injuries, it is conceded by the plaintiff that issues of mental health are intertwined with issues of chronic pain in this case.

Background Medical Facts

[11] It is not disputed that the plaintiff was diagnosed with depression as a result of the accident. Her depression was primarily treated by her family doctor, Dr. John Raleigh, and his nurse practitioner. Medical records from February 4, 2013, February 25, 2013, April 19, 2013, June 21, 2013 and September 19, 2013 reflect entries by her doctor's office of the plaintiff's attendances for medication to help with her pain symptoms and her resulting depression. References to the plaintiff's depression are also found in the August 20, 2013 assessment report of Dr. Mohamed Khalad, a general practitioner, the forms the plaintiff filled out on October 29, 2013 at Hotel Dieu Hospital for a bariatric assessment, notes from the nurse practitioner on October 8, 2013, a sleep questionnaire completed by the plaintiff on November 4, 2013, the plaintiff's examination for discovery on September 10, 2014, the report of Dr. Christopher Cooper, a psychologist, and the report and session notes of Dr. Duncan Day, the plaintiff's treating neuropsychologist, all of which are contained in the motion record.

[12] In June of 2013, Unifund, the plaintiff's first-party insurer, retained Dr. Christopher Cooper, a registered psychologist, to conduct an independent medical examination of the plaintiff related to her entitlement to receive income replacement benefits. In his July 30, 2013 report, Dr. Cooper found that the plaintiff was diagnosed with depression by her family doctor, Dr. John Raleigh, and prescribed an anti-depressant and amitriptyline for sleep. He found the plaintiff suffered from a mood disorder with major depressive episode due to a general medical condition as a result of the accident and that she needed treatment. He found that the plaintiff's main complaints involved pain. In addition, Dr. Cooper recommended that the plaintiff be referred to the Kingston Orthopaedic and Pain Institute ("KOPI"), a specialized service involved in the provision of cognitive behavioural treatment of pain symptoms, for treatment for a period of four months.

[13] The plaintiff had 17 sessions of cognitive behavioural therapy with Dr. Duncan Day, a registered neuropsychologist, from May 2014 to August 2015. Key complaints were the plaintiff's restrictions related to pain and her frustration which led to low mood and difficulties managing expectations. She had guilt over having to sue the defendant. The plaintiff was diligent about her therapy, and used CBT techniques to improve her life and better manage her physical pain and her mental health issues. The treatment made a positive improvement in her condition. She has not been seen further for any psychological treatment or counselling, nor has any such treatment been recommended. In particular, no one has recommended that the plaintiff be referred to a psychiatrist for treatment.

[14] The plaintiff has not had any psychologically based independent medical examinations. The plaintiff relies on the evidence of Dr. Cooper, as an expert witness with expertise in the field of psychology, and Dr. Day, as the plaintiff's treating neuropsychologist.

[15] The plaintiff has had two recent independent medical examinations at the request of the defendants, which were arranged on consent. She was examined by Dr. Michael Devlin, a physiatrist, and Dr. Michael Bushuk, an orthopaedic surgeon. Their independent medical assessment reports refer to Dr. Cooper's report and the cognitive behavioural therapy by Dr. Day, and comment on the plaintiff's mental health issues. No further treatment was recommended by either of them.

Analysis

[16] There is no issue that the court has the discretion to order a second or further independent medical examination of the plaintiff. The ultimate purpose of Rule 33 and s. 105 of the Courts of Justice Act is to ensure a fair trial by creating a "level playing field" as between the parties or to put the parties on equal footing (see Chapell v. Marshall Estate (2001), 15 C.P.C. (5th) 54 (Ont. S.C.J.); Francescutto v. Bojsic, [1999] O.J. No. 602, 87 O.T.C. 388 (Gen. Div.)). There must therefore be evidence of unfairness and necessity for the court to consider before ordering such an assessment, which is demonstrably highly intrusive.

[17] The guiding principles have been set out in Bonello v. Taylor, 2010 ONSC 5723, at para. 16:

Although the determination of whether to order a second or further examination by a health practitioner must turn on the specific facts and equities of a case, a body of case-law has developed around when a second or further examination may be ordered under CJA s. 105 and Rule 33. The leading principles can be summarized as follows:

(i) The party seeking the order for a further examination must demonstrate that the assessment is warranted and legitimate, and not made with a view to delaying trial, causing prejudice to the other party, or simply corroborating an existing medical opinion;

(ii) A request may be legitimate where there is evidence that (i) the party's condition has changed or deteriorated since the date of a previous examination, (ii) a more current assessment of the plaintiff's condition is required for trial, (iii) the plaintiff served specialist reports from new assessors after the defendants had conducted their medical assessments, or (iv) some of the party's injuries fall outside the expertise of the first examining health practitioner;

(iii) 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. Ordering further examinations may be just where they are necessary to enable the defendant fairly to investigate and call reasonable responding evidence at trial;

(iv) Where the request is for the examination of the plaintiff by a person who is not a health practitioner, such as a rehabilitation expert, the defendant must demonstrate that the proposed examination is necessary as a diagnostic aid to the health practitioner who is conducting the defence medical examination;

(v) A request for a second examination must be supported by sufficient evidence to persuade a court of the need for the further examination. What constitutes sufficient evidence will vary from case to case. Some cases have suggested that need must be established by filing medical evidence, such as an affidavit from the first examining physician recommending a further examination by a health practitioner competent in another specialty. In other instances an affidavit from a lawyer or law clerk attaching medical reports has been utilized by the court. But, at the end of the day, determining whether the nature of the evidence filed is sufficient remains essentially an exercise of judicial discretion;

(vi) While fairness, or "creating a level playing field", may constitute a legitimate reason for ordering a second examination, someone with knowledge of the evidence in the case must provide evidence of unfairness for the court to consider; and,

(vii) A court should consider whether the request for a further examination would impose an undue burden on the plaintiff in light of the number of examinations already conducted of her by the defence.

(Footnotes omitted)

[18] While there are cases where valid reasons exist for ordering a further independent medical examination, such valid reasons do not exist in this case. I can find no reason for an assessment by a psychiatrist based on the above principles as applied to the facts of this case. Such an assessment is neither warranted nor legitimate. The plaintiff's psychological condition has improved since her treatment, which ended in August of 2015. She is no longer in active treatment or counselling and is being monitored by her family doctor. The plaintiff has not served any reports from any new assessors.

[19] Seeking such an order at this late stage of the proceedings with a September 2016 trial date is all but guaranteed to delay the upcoming trial. Regardless of the looming trial date, the defendants simply do not need an assessment by a psychiatrist to defend this case (see Pinelli (Litigation Guardian of) v. Chmura, at para. 17).

[20] The defendants' major reason for their psychiatric assessment request is that they want a psychiatric assessment to assess the plaintiff's depression and mental health issues. This is insufficient to obtain the order. Harvison Young J. considered and rejected the argument that the plaintiff's having mental health issues including anxiety and depression warranted a psychiatric assessment in Carradine v. Worsley, 2010 ONSC 6434, at para. 11. In rejecting this argument, she relied on the fact that there was no evidence to explain precisely what a psychiatrist would add to the case. The same can be said of the facts in this case. There is no evidence in this case from an appropriate health practitioner as to why a psychiatric assessment is necessary and what it could add to this case.

[21] The plaintiff further submits that if this assessment is ordered, it will require the plaintiff to be assessed by another psychiatrist chosen by the plaintiff to prepare a matching report to be able to respond to the assessment report sought by the defendant. I accept this submission as being a serious and valid concern of the plaintiff, and one that is well known to the defendants. This would cause significant expense, and significant delay. The judge and jury trial of this matter is scheduled for September 2016. There will be a delay of up to two years in obtaining another trial date if the trial fails to proceed as scheduled in this jurisdiction.

[22] The evidence of unfairness in this case is of unfairness to the plaintiff. The plaintiff has never been treated or assessed by a psychiatrist. No one who has seen the plaintiff has recommended that she be treated by a psychiatrist. To make the order sought would favour the defence and prejudice the plaintiff, which is beyond the purpose of Rule 33.

[23] The appropriate field of expertise required to respond to Dr. Cooper and Dr. Day's reports and the claims of the mental health-related injuries of the plaintiff, I find, is psychology and/or neuropsychology, not psychiatry. The disciplines of psychology and psychiatry have been held to be different (see Narouz v. Desjardins Financial Security, 2015 ONSC 540, at para. 16). If asked for, I would have ordered an assessment by a psychologist or a neuropsychologist on the facts of this case. This relief, however, was purposefully not sought by Mr. Todd McCarthy, trial counsel for the defendants.

[24] I find the reasoning of Rady J. in Karbasion v. Batorowicz, 2015 ONSC 6502, and the result in that case, persuasive. In dismissing the request for a psychiatric assessment, Justice Rady found that the plaintiff had not received psychiatric treatment, had not had her psychiatric condition put in issue, that there was a difference between a psychologist and a psychiatrist, that a psychiatric assessment was not necessary to "level the playing field", and that a psychiatric assessment could lead to needless delay and expense. The same findings apply to the facts of this case.

[25] I will not require the plaintiff to undergo an independent medical examination by a psychiatrist. The motion is accordingly dismissed.

[26] While it is unnecessary for me to decide the second issue of the relief requested by the plaintiff -- namely, whether to not allow Dr. Monte Bail to conduct a defence psychiatric examination due to his failure to adhere to the principles of fairness, objectiveness and impartiality and his defence bias -- I make the following observations and comments by way of obiter dicta. I find the plaintiff's argument on this issue compelling. Rule 4.1.01 makes it clear that an expert's duty to the court prevails over any obligation owed by the expert to a party. The Supreme Court of Canada has held that an expert witness who is unable or unwilling to comply is not qualified to give expert opinion evidence and should not be permitted to do so (see White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23).

[27] When an expert and that expert's report is notably partisan, acts as judge and jury, advocates for the insurer rather than being impartial, is not credible, and fails to honour the undertaking to the court to be fair, objective, and non-partisan, it directly affects a party's right to a fair trial.

[28] Kane J. in Bruff-Murphy (Litigation Guardian of) v. Gunawardena, 2016 ONSC 7 held that Dr. Bail was not a credible witness and that he failed to honour his obligation and written undertaking to be fair, objective and non-partisan pursuant to rule 4.1.01 (see paras. 53-125). He did not meet the requirements under rule 53.03. Justice Kane found that Dr. Bail's report and testimony was not of a psychiatric nature but was presented under the guise of expert medical testimony and the common initial presumption that a member of the medical profession will be objective and tell the truth. He further held that the purpose of rule 4.1.01 is to prohibit and prevent such testimony in the guise of an expert, and that [at para. 124] "Dr. Bail undertook and thereby promised to not do what he did in front of this jury". Importantly, Justice Kane held [at para. 125] that, "I will not qualify witnesses as experts in the future whose reports present an approach similar to that of Dr. Bail in this case".

[29] Additional critical findings in relation to Dr. Bail can be found in Morrison v. Greig, [2007] O.J. No. 225, 46 C.C.L.T. (3d) 212 (S.C.J.), at paras. 43-48; Sidhu v. State Farm Mutual Automobile Insurance Co., 2014 CarswellOnt 18595 (F.S.C. Arb.), at para. 68; Sohi v. ING Insurance Co. of Canada, [2004] O.F.S.C.D. No. 106, 2004 CarswellOnt 3236 (F.S.C. Arb.), at paras. 35-41; Gabremichael v. Zurich Insurance Co., 1999 CarswellOnt 4480 (F.S.C. Arb.), at para. 132; and Rocca v. AXA Insurance (Canada), [1999] O.F.S.I.D. No. 42, 1999 CarswellOnt 5506 (F.S.C. Arb.), at para. 66.

[30] The recent changes to the Rules to require experts to undertake to the court to be fair, objective and non-partisan has done little if anything to curb the use of certain favoured biased "hired guns" by the parties. The consequences of an expert signing the undertaking and failing to honour their obligation in their expert report or evidence is simply the rebuke of the court. This does nothing to prevent that same expert from being further retained and repeating the process over again in other trials as long as trial counsel are willing to retain them.

[31] Rule 33.02 provides that the court shall name the health practitioner by whom the independent medical examination is to be conducted. It could be argued that the court, in the exercise of its discretion, should therefore consider and determine in appropriate cases whether or not the proposed named health practitioner is biased in favour of a party on the balance of probabilities and therefore fails to qualify as an expert under rule 4.1.01. The court's discretion would therefore include the discretion not to name a particular health practitioner if that health practitioner fails to meet the criteria set out in rule 4.1.01 on the basis of bias. While it would be uncommon to find an expert biased and impartial, such an expert so found should not be allowed to have any role in the court process.

[32] Considering the highly intrusive nature of these independent medical assessments, and the serious issue of ensuring a fair trial, the plaintiff's argument to deny the right to have an expert that has been found to be biased conduct the assessment in the first place is worthy of consideration in appropriate circumstances considering the potential for a miscarriage of justice that can be caused by such an expert biased in favour of one party, particularly in front of a jury.

Conclusion

[33] As the defendants have failed to establish that they are entitled to an independent medical examination to be conducted by a psychiatrist, the motion is dismissed. Costs of the motion are reserved.

[34] If counsel are unable to agree on costs, I will receive brief written submissions on or before May 31, 2016. Thereafter, I will determine the issue of costs based on the materials filed.

Motion dismissed.

End of Document