Court File and Parties

CITATION: Emam v. Sunnybrook Health Sciences Centre, 2016 ONSC 7368

COURT FILE NO.: CV-08-367539

DATE: 20161125

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SASSAN EMAM, Plaintiff AND: SUNNYBROOK HEALTH SCIENCES CENTRE, Defendant

BEFORE: Mr. Justice Peter J. Cavanagh

COUNSEL: J. Reznick, for the Plaintiff M. Payne, for Defendant

HEARD: November 24, 2016

ENDORSEMENT

[1] The issues on this motion are whether an order should be made (1) compelling satisfaction of certain undertakings given on the examination for discovery of the Plaintiff taken on April 18, 2012 and on September 22, 2016; and (2) compelling the Plaintiff to attend a vocational and future care assessment with Sandra Vellone and a physiotherapy assessment with Jodi Steele, both pursuant to Rule 33 of the Rules of Civil Procedure.

[2] This action involves allegations of medical negligence against the defendant Sunnybrook Health Sciences Centre (the “Hospital”), with respect to medical care and treatment provided to the plaintiff, Sassan Eman (the “Plaintiff”) on December 3, 2006. The action was set down for trial on March 4, 2014. A pre-trial conference was conducted on October 3, 2016. A second pre-trial conference is scheduled for December 19, 2016. The action has been scheduled for a 3 week trial commencing January 16, 2017.

Whether an Order Compelling Answers to Undertakings Should be Made

[3] The questions from the examination for discovery of the Plaintiff that are in issue are listed in a table of questions found at Exhibit V to the affidavit of Patrick Hawkins sworn November 14, 2016.

[4] The first question (p. 47, question 201 from examination for discovery of Plaintiff taken on April 18, 2012) relates to inquiries to be made to a Dr. Tolando to produce his records. The position taken by the Plaintiff was that these records were requested several times through letters, the last of which was written January 14, 2013.

[5] In my view, to comply with a best efforts undertaking, the Plaintiff must make further efforts to obtain the clinical records from Dr. Tolando including follow-up correspondence and, if necessary, attempts to reach him by telephone. Because of the upcoming trial date, urgency must be shown in the attempts to obtain relevant information to which the Hospital is entitled from Dr. Tolando.

[6] The second question (p. 136, question 504 from examination for discovery of the Plaintiff taken on April 18, 2012) relates to an undertaking to produce a copy of the records of the Community Care Access Centre (“CCAC”), or whatever centre it was that arranged the nursing care for the Plaintiff after he was released from Hospital. The position of the Plaintiff is that updated records from the CCAC were provided and that no additional information is available. Although the records of the CCAC refer to additional subcontractors which provided services to the Plaintiff, these records are not in the possession of the CCAC. I am not satisfied that an undertaking was given to go further than to provide the records that have been produced. Counsel for the Plaintiff has advised that her client has no objection to the production of additional records referenced in the records already produced by the CCAC, and it is open to the Hospital to contact these subcontractors to request additional records.

[7] The third question (p. 173, question 663 from examination for discovery of the Plaintiff taken on September 22, 2016) is to produce clinical notes and records from Dr. Lindsay with respect to the treatment and visits with the Plaintiff. Dr. Lindsay is a treating vascular physician of the Plaintiff. He has provided expert evidence on behalf of the Plaintiff in this action, but not clinical records. The Plaintiff continues to be in contact with Dr. Lindsay. There is no reason that was put forward for why the records of Dr. Lindsay cannot be obtained and produced forthwith. The Plaintiff must take immediate and urgent steps to seek Dr. Lindsay’s clinical notes and records with respect to the treatment and visits with the Plaintiff.

[8] The fourth question (pages 200-201 and question 800 from the examination for discovery of the Plaintiff taken on September 22, 2016) relates to an undertaking to produce the Plaintiff’s business and financial records as kept by him and his accountant. The Plaintiff has provided an Excel spreadsheet from the Plaintiff’s accountant, but has not produced any financial statements, invoices, ledgers or other business and financial records. According to counsel for the Plaintiff, the Plaintiff’s accountant has said that the record that has been provided is the complete record that is available. While this may be correct, it would be unusual for an excel spreadsheet to be completed without the use of underlying data. It is possible that the records from which the spreadsheet was prepared have been returned to the Plaintiff. If so, they must be produced, to the extent that they are covered by the undertaking. I direct that the Plaintiff follow-up again with his accountant to determine whether any additional business and financial records are available and, if so, to produce them.

[9] The fifth question (p. 217, question 877 from the examination for discovery of the Plaintiff taken on September 22, 2016) relates to an undertaking to provide any clinical notes and records from a Dr. Cartier as soon as they are available. This doctor is a vascular surgeon who provided medical care to the Plaintiff. Counsel for the Plaintiff advised that they have written twice to Dr. Cartier, and that they are awaiting his clinical notes from a November 4, 2016 attendance. I direct that the Plaintiff follow-up with Dr. Cartier again to request all outstanding clinical notes and records, as a matter of urgency.

[10] The sixth question (p. 225, question 918 from the examination for discovery of the Plaintiff taken on September 22, 2016) relates to an undertaking to produce updated records from the Plaintiff’s family physician, Dr. Legault, beyond those produced in 2012. According to counsel for the Hospital, the records that have been produced are missing records from 3 attendances on September 21, 2010, October 19, 2010 and August 28, 2012, based upon her review of available OHIP summaries. Counsel for the Plaintiff advised that she was not aware that these records were outstanding, and she has agreed to request them from Dr. Legault and to produce them if such records exist and are available. I direct the Plaintiff to do so.

[11] The seventh question (p. 237, question 956 from the examination for discovery of the Plaintiff taken on September 22, 2016) relates to an undertaking to identify the occupational therapist that the Plaintiff sees and to provide his/her records. The position of the Plaintiff on this motion is that these records are within the Community Care Access Centre records that have already been provided. Given that all of the records available to the Centre have been provided, no further action is needed by the Plaintiff to satisfy this undertaking.

[12] The eighth question (p. 248, question 1008 from examination for discovery of the Plaintiff taken on April 18, 2012) relates to an undertaking to provide the price list for the Plaintiff’s supplies needed to wrap his leg. Counsel for the Hospital agreed that the price list referenced by the Plaintiff on his examination was provided. There is no outstanding undertaking.

[13] Given the proximity of the next pre-trial conference, and that the trial is scheduled to begin in January, 2017, I direct that the Plaintiff take immediate and urgent steps to make follow-up inquiries to obtain the additional information that I have referred to in paragraphs 4, 6, 7, 8, and 9 of this Endorsement. The persons from whom the information is sought should be told of the urgency of providing this information forthwith. I expect that much of the information including, in particular, the records of Dr. Lindsay, will be provided within 7 days and that all of the information, to the extent that it exists and can be produced, will be produced as soon as possible and no later than within 21 days.

[14] I do not think it is necessary for the Plaintiff to serve a further and better Affidavit of Documents in the circumstances.

Whether a Vocational and Future Care Assessment and a Physiotherapy Assessment by Experts Selected by the Hospital Should be Ordered

[15] Rule 33 of the Rules of Civil Procedure and section 105 of the Courts of Justice Act provide that the Court may order the examination of the Plaintiff by a healthcare practitioner. The parties agree that this jurisdiction has been broadened to include the discretion to order a physical or mental examination by a person who is not a healthcare practitioner. Both parties have cited the leading authority, Ziebenhaus (Litigation Guardian of) v. Bahlieda, 2014 ONSC 138 (Div. Ct.); aff’d 2015 ONCA 471.

[16] Counsel for the Hospital submitted that there are two key principles to be taken into consideration: first, whether the assessment is necessary to satisfy the interests of fairness and justice at trial and, second, whether the assessment is necessary for the defendant to respond to the plaintiff’s case. In addition, the Hospital’s counsel identified two other considerations, whether the assessment is directed to an important issue for the trial and whether the assessment would be unnecessarily intrusive. Counsel for the Plaintiff did not take issue with these principles and considerations.

[17] The Hospital’s counsel submitted that a vocational and future care assessment by Ms. Vellone is necessary for trial fairness and justice. She noted that the loss of income claim advance by the Plaintiff was in the range of $820,000 to $1 million. This loss of income claim is based upon the Plaintiff’s self-report. In her submission, it would not be fair to limit the Hospital’s response to simply cross-examination of the Plaintiff. She submitted, based upon the evidence of Ms. Vellone, the assessment would not be intrusive, citing paragraphs 10 and 11 of Ms. Vellone’s affidavit.

[18] Both counsel agreed that there is no “matching principal” by which such an assessment should be ordered because the opposing party has obtained a similar assessment. However, counsel for the Hospital also submitted that, simply because the Plaintiff has not obtained a vocational and future care assessment to support his claim, it does not follow that the Hospital, should it consider such an assessment to be necessary, should not be able to obtain one.

[19] According to the affidavit of Patrick Hawkins, a partner in the firm representing the Hospital, after the firm began receiving updated records from the Plaintiff in late July 2016, a request was promptly made to have the Plaintiff assessed by an expert. On August 4, 2016, the lawyers wrote to counsel for the Plaintiff requesting a vocational assessment by Ms. Vellone. Although, on September 7, 2016, counsel for the Plaintiff agreed to a contained examination for discovery of the Plaintiff on new productions, he did not agree to have the Plaintiff assessed by Ms. Vellone.

[20] Counsel for the Hospital referred to the CV of Ms. Vellone, and submitted that she has considerable experience doing this kind of work, including expertise in limb issues.

[21] In response, it was argued on behalf of the Plaintiff that the requested assessment is not necessary because the Plaintiff’s ability to work will not be effectively assessed by a vocational assessor. The Plaintiff also submits that Ms. Vellone lacks expertise with respect to lymphatic or vascular conditions and would not be able to comment on the vocational prospects or future care costs arising from his condition.

[22] In this case, there is a substantial loss of income claim, the proposed assessment will not be unnecessarily intrusive and it can be completed in time for a report to be produced soon, even for the upcoming pre-trial conference. I am satisfied that the proposed assessment by Ms. Vellone will satisfy the interests of fairness and justice at the trial and is necessary for the Hospital to respond to the Plaintiff’s claim. The fact that the Plaintiff has not obtained a vocational report on the basis that his needs are best assessed by a medical practitioner does not lead to the conclusion that the Hospital must share this view. Any issues about the qualifications of Ms. Vellone and the weight to be given to her evidence can be raised at the trial.

[23] The Hospital also requests an order directing the Plaintiff to undergo a physiotherapy assessment by Jodi Steele. The Hospital submits that this assessment is necessary to assess the Plaintiff’s physiotherapy costs for treatment of his lymphedema and that the assessment is required in response to the Markham Lymphatic Centre and the CCAC records that the Plaintiff has recently produced. The report from the Markham Lymphatic Centre was produced on October 3, 2016. In this case, there is a substantial claim for the cost of future care and the Hospital has submitted that the evidence of what the Plaintiff needs going forward for his future care is inconsistent. Again, the proposed assessment, according to the evidence of Ms. Steele, would not be overly intrusive.

[24] The Plaintiff has submitted that the Hospital’s request for additional productions was only received on May 6, 2016, and that he should not be prejudiced by the requested assessments because the Hospital failed to request updated records and assessments during the period of time following the Plaintiff’s first examination for discovery on April 18, 2012. While there may have been some delay in formally requesting updated productions, there was a general undertaking given on the first examination of the Plaintiff to produce updated clinical records on an ongoing basis. I am not satisfied that the delay in requesting additional productions, which may have led to a delay in deciding that the requested assessments are necessary, should militate against an order directing the assessments, given my conclusion that the assessments will promote trial fairness and justice, and that each assessment is directed to an important issue in the case.

[25] I am, therefore, satisfied that the Hospital has provided sufficient evidence to satisfy me that I should exercise my inherent jurisdiction to order both the assessment by Ms. Vellone and the assessment by Ms. Steele.

[26] I understand that Ms. Vellone is available to conduct the assessment on December 8, 2016 and that this is acceptable to the Plaintiff. I understand that Ms. Steele is available to conduct the assessment on dates listed in para. 8 of her affidavit affirmed November 14, 2016.

[27] For these reasons, I order:

a. The Plaintiff shall forthwith use his best efforts, as a matter of urgency, to obtain the information identified in paragraphs 4, 6, 7, 8, and 9 of this Endorsement and to produce the information to the Hospital as soon as it becomes available and, in the case of Dr. Lindsay’s records, within 7 days and, in respect of other records, no later than 21 days from the date of this Order.

b. The Plaintiff shall undergo a vocational and future care assessment by Sandra Vellone on December 8, 2016 and a physiotherapy assessment by Jodi Steele on a date in late November or early December to be agreed upon by the parties.

[28] The Hospital has requested costs of this motion on a partial indemnity scale in accordance with a Costs outline that was presented in the total amount of $5,406.80. I consider that the requested costs are reasonable and fall within the range of what would be expected by the Plaintiff.

I order that the Plaintiff pay the hospital its costs of this motion fixed in the amount of $5,406.80 forthwith.

Mr. Justice P. Cavanagh

Date: November 25, 2016