Court File and Parties

COURT FILE NO.: 7934/12 DATE: 2016/09/09 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Katherine Phul, Jas Phul, and Kailon Phul, By his Litigation Guardian Katherine Phul, Plaintiffs AND: Georgian Bay Transport Inc. and Andrew Stadt, Defendants

BEFORE: Justice J. C. George

COUNSEL: Gordon Good, counsel for the Plaintiffs Jennifer Bruce, counsel for the Defendants

HEARD: August 8, 2016

Endorsement

Main Action

[1] This action arises from a motor vehicle accident that occurred on August 9, 2010 on Highway 402 near Strathroy.

[2] At the time of collision, the plaintiff was operating her motor vehicle. The defendant Stadt was operating a transport truck, with the consent of its owner and co-defendant Georgian Bay Transport Inc. (Georgian Bay).

[3] The plaintiff alleges Stadt was at fault and should, together with Georgian Bay, be held fully liable. She claims the existence of these injuries, amongst others:

-the immediate onset of pain in her back, neck and shoulders. -a diagnosis of Whiplash Associate Disorder Level 3, with a sprain and strain of her shoulder and lumbar spine. -tension headaches and pain in her left lower limb. -restricted mobility of her neck. -soreness to her left knee.

[4] She pleads that, on account of these injuries, restrictions were placed on her job duties and that her hours were reduced. She contends her injuries have impacted sleep patterns, caused dizziness, anxiety while driving, brought about depression, decreased her sitting and standing tolerance, and has increased her difficulty in performing routine tasks.

[5] The plaintiff has placed her physical and psychological health in issue.

This Motion

[6] The defendants seek an order compelling the plaintiff Katherine Phul to produce certain documents, and to respond to unanswered questions posed at her examination for discovery.

Position of Parties

Defendants

[7] There are three items of interest.

[8] First, a surveillance video that is referenced in the report of neurologist Dr. Andrew Kertesz. In preparing his report, Dr. Kertesz viewed the video, which was provided by the accident benefits insurer. It apparently reveals the plaintiff walking briskly, bending over, and driving. The defendant argues this is relevant as the plaintiff has put into issue her ability to conduct pre-accident activities.

[9] While no privilege is claimed, and while it is in the plaintiff’s possession, its production is resisted on the grounds of relevance.

[10] Plaintiff counsel has offered to make it available for viewing, but will not create a copy and hand it over. The defendant argues production is necessary in order that its expert can review its content.

[11] Second, that the plaintiff provide a list of documents that have not been produced in this action, that are related to the plaintiff’s accident benefits claim.

[12] By way of background, at her examination for discovery the plaintiff claimed privilege over documents not listed in her affidavit of documents. In fact, at that time, nothing was listed within schedule B.

[13] Since then, the plaintiff has prepared and filed an updated affidavit of documents. Interestingly enough, this list does not contain the aforementioned surveillance video, presumably on the basis the video is irrelevant. According to the defendants, this begs the question, what other documents have not been listed on account of, presumably counsel’s determination, they are irrelevant?

[14] The defendants argue that the only way to provide clarity in this respect is for the plaintiff to list each and every document contained in the accident benefits report.

[15] Third, that Dr. Deathe’s 2012 assessment be produced. Through discovery, the defendant was provided a letter from Co-operators insurance to Katherine Phul, dated June 1, 2014. In it, reference is made to the fact the insurer has paid for an examination to be conducted by physiatrist Dr. Deathe. The third full paragraph of that correspondence reads: “although we have paid for insurer Examination by Physiatrist, Dr. Deathe in April 2012 Mr. Good has not released that report to us”.

[16] As noted in the correspondence, Dr. Deathe is a physiatrist; a medical doctor who specializes in rehabilitation and pain medicine, and who generally focusses on bones, joints, muscles, ligaments, and nerves.

[17] The aforementioned letter suggests a report exists. It was paid for by the insurance company and was, as at June 2014, expected to be forthcoming.

[18] The defendants argue this would be relevant, as the plaintiff asserts she now has chronic pain, decreased range, and soft tissue injuries, all resulting from the accident.

[19] The defendants argue it’s inconceivable Dr. Deathe, considering his expertise, and the circumstances surrounding his engagement, would not have explored and assessed these very issues. He would have performed an assessment to determine her ability to function on a day to day basis, and to perform routine tasks.

[20] It is argued this is proximate in time, and would address the very issues that are the subject of this litigation. If it was prepared, it is within the plaintiff’s control.

Plaintiff

[21] The plaintiff opposes the production of each item.

[22] Plaintiff counsel highlights the two different streams which govern benefit claims after a motor vehicle accident. That which involves the accident benefit carrier, which is responsible for paying medical benefits, and the tort insurer, that company which is involved in the action and which is responsible for paying damages, if so ordered.

[23] This motion deals largely with documents and information which arise on the accident benefit side, which requires that I closely examine the relationship between the two insurers, and its collective relationship to this action.

[24] I need not repeat, in any great detail, the process that a claimant must follow in order to receive benefits. Suffice to say, an application is made to the injured person’s own insurance company, who either pays for the requested treatment, or declines. In the case of a refusal, a medical assessment is required, which, upon completion, the carrier again decides whether to fund treatments or continue to decline. In the absence of a resolution, the next step involves mediation and an arbitration process.

[25] The larger point stressed by the plaintiff is that the context of this particular process, and any related medical assessment, is narrowly focussed on the specific treatment plan that was submitted. In other words, a distinction should be drawn between this type of assessment, and that which would be relevant for the tort insurer, which would be much broader.

[26] To the request that the surveillance footage be turned over, the plaintiff contends it is irrelevant to the plaintiff’s action, in that she claims to not being able to work or complete housekeeping duties. As the argument goes, the video does not show her working or performing household functions, therefore it is irrelevant.

[27] The plaintiffs proposed compromise is that, in order to satisfy themselves respecting relevance, the defendants are welcome to attend counsel’s office and view it.

[28] Respecting the updated list of documents, the plaintiff asserts she has received the entire accident benefit file. I was advised that upon the plaintiff receiving it, all those documents for which privilege was claimed, were removed, with the balance being disclosed to the defendants. This has already been done. Basically, there is no list to provide. The defendants have everything.

[29] Respecting the report of Dr. Deathe, the plaintiff opposes production as it is not in her possession. To the argument that its within her power and control to obtain, I am told Dr. Deathe has not provided a report, advising that he was unable to “answer the question because I have to understand future medical and rehabilitation needs”, in order to assess whether the treatment plan is “reasonable and necessary”. Does this mean there is no report? I am not sure; but is what I thought, at least initially, to be the plaintiff’s position. More on this shortly.

[30] To the extent the report might exist, the plaintiff asserts, through the affidavit of Kris Moriarity, a law clerk at her counsel’s firm, that the accident benefit insurer has not produced a report. At least they don’t have it, nor do they have in their possession a letter from Dr. Deathe confirming its existence.

[31] Again, the implication is a report does not exist. The complicating factor is, the consent initially provided to Dr. Deathe indicated he was to provide an opinion as to whether the proposed treatment plan was reasonable and necessary, with the response as noted above; that he wasn’t able to answer that question.

[32] The plaintiff’s main objection lies in what she argues is an attempt on the part of the defendant to have the court alter the particulars and entitlement of the accident benefit assessment, to suit what they want. Should the court grant an order on this point, the plaintiff argues this would be tantamount to changing the terms of the consent so that Dr. Deathe can offer an opinion, one which he has perhaps not yet formulated, but certainly not provided, unrelated to the issue of a specific treatment, which was his only task and the intended purpose of his retainer.

[33] The bottom line position is, this is not a document in the custody, care or control of the plaintiff, although it is still entirely unclear to me whether there is, in fact, a report.

Assessment

[34] The authorities referenced by counsel were helpful and clearly set out the principles which must guide me.

[35] The scope of documentary disclosure has been narrowed, with the ‘semblance of relevance’ threshold being replaced by a relevance test; Ghuman v. Naftaliev, 2010 ONSC 3270. While relevance is the key, proportionality is also a factor, which is encompassed within the new test; Keats v. El Ebiary, 2010 ONSC 6400.

[36] The decision in Frangione v. Vandongen, 2010 ONSC 3230 is particularly relevant in this instance, especially as it relates to Dr. Deathe’s report. It goes to the moving party’s onus. If one wants something that has not yet been provided, they have to show, by evidence, that it is relevant.

[37] This is what underscored Leitch J.’s decision in Knox v. Nathan Applebaum Holdings Ltd., 2013 ONSC 5981, where she concluded there was no evidentiary basis to justify the requested disclosure (which included copies of the plaintiff’s Facebook account profile and photographs), and that the sought after production was properly refused.

[38] I will address first the request for an updated list of documents. There is no basis to make an order requiring the plaintiff to advise and list those documents arising from the accident benefits claim, that have not been produced. While I appreciate the defendant’s concerns about the circumstances leading to the revelation of a surveillance video, there is simply no basis to conclude there is anything further to report. I accept the plaintiff has now provided a complete list of documents, and that to insist she go beyond that, would be to have her prove a negative and awkwardly establish that something does not exist.

[39] I am also not inclined to require the plaintiff to provide further and better particulars respecting the documents for which privilege is claimed, as to do so would potentially destroy the litigation privilege.

[40] Next, the report of Dr. Deathe. It is inconceivable that a report was not prepared. The doctor would have at least examined the plaintiff to assess her ability to perform daily activities, and surely would have created a recording of the plaintiff’s medical condition.

[41] Had I been made aware of any efforts by the plaintiff to obtain this report, I might have been able to conclude either that one doesn’t exist, or, given the position taken by Dr. Deathe, that any report prepared or records maintained respecting the plaintiff, is not in her care, control or within her ability to obtain.

[42] As I review the exchange between counsel at the examination for discovery, even plaintiff’s counsel speaks as if there is a report, and that the problem is one of the scope of consent, and the extent to which the doctor wants to produce it. In response to defendant’s counsel, the term used twice, is that “Dr. Deathe has not released the report”. I note the following exchange:

Mr. Tindale (counsel for D): Okay. So it’s in the possession of Dr. Deathe. Have you… Mr. Good (counsel for P): Well, we assume it is, yes. Mr. Tindale: All right. Have you authorized the release of that report? Mr. Good: Not on the terms demanded by Dr. Deathe. Mr. Tindale: All right. I’m requesting that, on the basis that its information relevant to assessment post-accident, medical information relating to the plaintiff with respect to injuries sustained in the accident, I’m requesting a copy of the report of Dr. Deathe. Mr. Good: I don’t have a report of Dr. Deathe. Mr. Tindale: But it may be in your client’s power, possession or control to obtain it. Mr. Good: Well that’s a good question. But the issue is whether or not the opinion of Dr. Deathe is in accordance with the provisions of the schedule, and that dispute continues with the insurer.

[43] The issue, therefore, is not whether a report exists (although that is obviously a prerequisite to production), but rather, what the report would address is whether a treatment plan is reasonable and necessary, which is separate and distinct from any consideration in the main action. As it turns out, relevance is the issue; similar to the plaintiff’s position respecting the video.

[44] If a report exists, it is within the plaintiff’s control. She can obtain it. The test for relevance has been met, and it ought to be produced. This is clearly distinguishable from the facts in the endorsement of Heeney J. (referenced by plaintiff’s counsel), and the Frangione and Keats decisions, each of which involved a request for documents in matters completely unrelated to the case at hand. Dr. Deathe’s assessment, and report if he indeed prepared one, is highly relevant to the main tort claim. I reject the plaintiff’s assertion that because of the limited scope of Dr. Deathe’s engagement, this necessarily means any conclusions arrived at respecting the plaintiff’s medical condition would be outside the core issue of this case.

[45] What we do know is an assessment was completed by Dr. Deathe. What we do not know is whether a report was prepared. This gap in information, which exists through no fault of the defendants, does not make a relevant document irrelevant. Any concerns on the part of the plaintiff can be addressed in the order, and in prefacing the direction by stating “if one exists”. I appreciate this is only to state the obvious, but what it will effectively do going forward, is place an onus on the plaintiff to make inquiries about the report and satisfy the defendant, and ultimately the court, that she has made her best efforts to ascertain its existence, and ultimately gain possession of it, if it does.

[46] Lastly, the video. Much of my commentary respecting Dr. Deathe’s report, applies here. There is little need to elaborate further, as it’s abundantly clear to me that the surveillance video referenced in Dr. Kertesz’s report is relevant.

[47] I draw the same distinctions from the authorities referenced by counsel, which largely dealt with materials and documents emanating from unrelated proceedings. This is different. It is in the plaintiff’s possession, and is relevant. The fact it doesn’t show her engaged in employment doesn’t make it irrelevant, not to mention the fact it, by all accounts, does show her going about her daily activities, which places it squarely within the four corners of this litigation.

[48] On the question of admissibility, whether the video footage can ultimately be used at trial is for the trial judge to determine, which doesn’t alter the concept of relevance at this stage.

Conclusion

[49] It is ordered that:

1. The defendant’s request that the plaintiff provide a list of documents arising from the accident benefits claim, that have not been produced, is dismissed.
2. The plaintiff shall produce to the defendants a copy of the surveillance video referred to at page 8 in Dr. Andrew Kertesz’s report of April 24, 2012.
3. The plaintiff shall produce to the defendants a copy of Dr. Deathe’s report, referenced in tab E of the defendant’s motion record, if it exists.

Costs

[50] In terms of assessing each party’s success on this motion, we have a mixed result. While it appears the defendants are entitled to a costs award, to what extent and whether it should be off-set by the plaintiff’s limited success, is to be determined

[51] I would hope that counsel can agree upon costs, but if they cannot, I invite brief written submissions. Each party has 30 days should they wish to do so.

“Justice J. C. George” Justice J. C. George Date: September 9, 2016