Court File and Parties
COURT FILE NO.: CV-16-803 DATE: 20160811
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Saokeng Mork and Seng Mork v. Simran Snaghera, Ranjit Sanghera and Sarah Y. Lawrence
BEFORE: Lemon, J.
COUNSEL: Adam Moras, for the Plaintiffs Conor Wade, for the Defendants
HEARD: July 29, 2016
ENDORSEMENT
Lemon J.
[1] The defendants seek an order that the plaintiff, Saokeng Mork, “attend at a defence medical assessment with Dr. Hugh Cameron, Orthopaedic Surgeon and Chronic Pain Specialist”. There are available appointment dates on August 17, 19 and 26, 2016.
Background
[2] Mr. Mork was injured in a motor vehicle accident on November 5, 2010. His Statement of Claim was issued May 29, 2012. It sets out standard pleadings with respect to significant injuries arising from a rear-end collision.
[3] Mr. Mork was examined for discovery on September 17, 2013 continuing on to June 2, 2014.
[4] His counsel served expert reports in psychiatry, chronic pain, physiatry, neuropsychology, future care costs and income loss on June 9, 2015.
[5] The defendants have had Mr. Mork examined by a psychiatrist on March 2, 2015. It is agreed that Mr. Mork will be examined by a defence physiatrist on November 10, 2016.
[6] A pre-trial is set for May 24, 2017.
[7] It appears that the injuries are significant; Mr. Mork has settled his accident benefit claims for in excess of one and a half million dollars. In June of 2015, plaintiff’s counsel requested the defendants to place the insurance limits of one million dollars in an interest-bearing account.
Authorities
[8] The Court can order a defence medical by one or more health practitioners pursuant to section 105(2) of the Courts of Justice Act, where the physical or mental condition of a party to a proceeding is in question. Rule 33.02(2) of the Rules of Civil Procedure states that the court may order a second examination or further examinations on such terms respecting costs and other matters as are just.
[9] The parties agree that the leading case in this area is Bonello v. Taylor, 2010 ONSC 5723, [2010] O.J. No. 4432, at para.16. The factors for the court to consider are:
(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” – ie. 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.
[10] Plaintiff’s counsel acknowledges that I need not concern myself with subparagraphs (i), (iv) or (vii). They are either conceded or irrelevant.
Analysis
[11] The real issue in this motion engages all of the remaining factors set out in Bonello. Does the plaintiff’s injury fall outside the expertise of the present defence medical examinations by a psychiatrist and a physiatrist? Is there sufficient evidence before me to persuade me that an examination by Dr. Cameron is necessary to enable the defendant to fairly investigate and call reasonable responding evidence at trial? Is there evidence that fairness requires the examination requested here?
[12] In my view, on the record before me, there is insufficient evidence for me to grant the order requested.
[13] The defence proposes that Dr. Cameron can give evidence in his area of expertise as both an orthopaedic surgeon and a chronic pain specialist.
[14] In reviewing Dr. Cameron’s 79-page resume, there is much to show that he is in an expert in orthopaedics, particularly knees and shoulders. However, the plaintiff’s counsel has not put forward an orthopaedic expert report. Indeed, the only examination undertaken by an orthopaedic specialist was at the request of Mr. Mork’s accident benefit insurer more than five years ago. On this basis, I see no need for such an examination.
[15] With respect to Dr. Cameron’s expertise in chronic pain, there are only three entries in his resume. Under “Non-peer Reviewed - Journal Publications,” there is a 1978 article in the Canadian Orthopaedic Nurses Association Journal entitled, “The Physiology and Psychology of Pain.” Later, in 1985 and 1986, there are again non-peer reviewed articles referred to in “Mod Med Cand” entitled, “The Patellofemoral Pain Syndrome.” The word “pain” does not otherwise show up in his resume. The phrase “chronic pain” does not show up at all.
[16] The defendant also relies upon a 2016 judgment in Dimopoulos v. Mustafa, 2016 ONSC 429, [2016] O.J. No. 287. There, Tzimas J. said, “The court also heard from Dr. Cameron who was qualified as an expert in orthopaedic surgery, soft tissue injury, chronic pain and the treatment of orthopaedic and soft tissue injury, and causation in these areas as it pertains to the plaintiff.” The defence suggests that this shows that Dr. Cameron is qualified to provide the proposed expert evidence. There is, however, no description of any attack on Dr. Cameron’s qualifications. There is no evidence of what was put forward at that trial to support his expertise. It is to be noted that Justice Tzimas did not rely upon Dr. Cameron’s evidence. I can only rely on the materials filed with this motion to determine whether it would be just to have the plaintiff undergo a defence medical. What was before Tzimas J. is unknown to me on this motion.
[17] I agree with the defendant that I need not determine Dr. Cameron’s expertise at this point; that would be for the trial judge. On the other hand, the moving party must put forward sufficient evidence to persuade the court of the need for the proposed examination.
[18] Focussing on the Bonello factors in issue, there is no doubt that Mr. Mork’s injuries fall outside the expertise of defendant’s psychiatrist and physiatrist. There is still the issue of chronic pain and neuropsychology along with experts dealing with the damages issues. That may be for another motion. However, the plaintiff is not relying on an orthopedic report; I see no need for the defence to have one. While it may be that the defendant will need a report from a chronic pain specialist, I do not have sufficient evidence that Dr. Cameron can provide helpful evidence for the defendant and the court. Given that, it seems unfair to have the plaintiff examined by an unnecessary orthopedic expert and a medical practitioner who is not properly qualified with respect to chronic pain.
[19] On this record, the defendant has failed to persuade me of the justness of such an examination and the motion is therefore dismissed.
Costs
[20] If the parties cannot agree upon costs, written submissions may be made to me. If necessary, the plaintiff shall provide written submissions within the next 15 days and the defendant shall respond within 15 days thereafter. Each submission shall be no more than three pages not including any bills of costs or offers to settle.
Lemon, J.