Court File and Parties

CITATION: Babcock v. Destefano, 2016 ONSC 7380

COURT FILE NO.: CV-12-0133-00

DATE: 2016-11-25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: REGGIE BABCOCK, Plaintiff

AND: ANGELO DESTEFANO and WAWANESA MUTUAL INSURANCE COMPANY, Defendants

BEFORE: Mr. Justice Graeme Mew

COUNSEL: Deanna S. Gilbert, for the Plaintiff/Responding Party S. Lynne Lawson, for the Defendant, Wawanesa Mutual Insurance Company/Moving Party

HEARD: 23 November 2016, at Belleville

ENDORSEMENT

[1] This personal injury action is scheduled to go to trial on 27 March 2017 in Belleville for five weeks with a jury.

[2] The automobile accident giving rise to the action occurred 1 February 2011. The action was commenced on 11 May 2012. The plaintiff served the trial record and set the action down for trial on 14 March 2015. The presently scheduled trial date has been known to the parties since January 2016.

[3] On 22 August 2016, Wawanesa brought a motion seeking orders requiring the plaintiff to be examined by three different medical specialists and by an occupational therapist/future care specialist. In reasons released on 24 August 2016, reported at 2016 ONSC 5352, Ray J., after setting out the procedural history of the matter, observed, at para. 13, that the failure of Wawanesa to seek its defence examinations prior to the two pre-trials, which had already been conducted in the litigation, required that the court to scrutinize the requested orders more closely, stating that “[t]he onus on the moving party is a heavy one.”

[4] Ray J. declined the requested orders for examinations by a psychiatrist, otolaryngologist and occupational therapist. However, he granted the requested order for a defence medical by Dr. Peter Watson, a neurologist, scheduled to take place on 8 September 2016. In doing so, Ray J. provided the following directions:

In order to minimize any prospect of delay of the trial, Dr Watson's report must be served on the plaintiff by October 8, 2016, otherwise, subject to the trial judge's order, Dr Watson's evidence will not be permitted to be introduced at trial. The plaintiff will be entitled to deliver any responding report by January 30, 2017.

[5] Wawanesa has sought leave to appeal the dismissal of the requested order for examinations by the occupational therapist, psychiatrist and otolaryngologist. That motion, which is in writing, is pending.

[6] Mr. Babcock duly attended the physical examination by Dr. Watson on 8 September 2016 in Toronto.

[7] The case then took a turn which could not possibly have been anticipated by Wawanesa.

[8] On 13 September 2016, a law clerk with the solicitors for Wawanesa received a telephone call from Dr. Watson’s assistant, who advised that Dr. Watson would not be providing a report due to not being able to meet the timeline and “unforeseen” circumstances.

[9] Despite immediate efforts to due so, Wawanesa’s lawyer was not able to speak to Dr. Watson until 16 September 2016. In that conversation, Dr. Watson advised that he was overwhelmed with work, that a number of issues had arisen which meant that he could not work at full capacity, that he had too much on his plate, that it was a very complex file and that he could not understand why the short deadline was imposed.

[10] Wawanesa’s lawyer asked Dr. Watson to propose a later date for delivery of the report. Dr. Watson responded that he was so overwhelmed that he could not even predict when he might be able to complete a report and that Wawanesa should have the plaintiff seen by another neurologist. Wawanesa’s lawyer requested that Dr. Watson send a letter to that effect. Dr. Watson duly did so. His letter of 16 September 2016 states:

I regret that due to the complexity of this matter, the extensive amount of medical documentation and the very short turnaround time required, I am unable to provide a report on Mr. Reggie Babcock.

[11] Further attempts to have Dr. Watson reconsider were unsuccessful. Accordingly, Wawanesa’s solicitor sought an appointment with another neurologist, Dr. Gordon Sawa. The first available date that Dr. Sawa was able to offer for a medical assessment is 11 January 2017. Dr. Sawa has committed to delivering a report by 31 January 2017 if the assessment on 11 January 2017 goes ahead.

[12] The motion before me, brought by Wawanesa, seeks an order requiring the plaintiff to attend a physical examination by Dr. Gordon Sawa in Mississauga on 11 January 2017 at 10:00 a.m., with transportation to be provided by Wawanesa (Mr. Babcock resides in Belleville).

[13] The plaintiff opposes the motion on the grounds that it is duplicitous, the issue of whether the defendant should have a defence medical examination by a neurologist having already been dealt with by Ray J. Alternatively, if the relief now sought by Wawanesa is not barred by reason of duplicity, the plaintiff says that Wawanesa has not met its onus of proving not only that Dr. Sawa’s opinion is necessary, but also that: (a) an in-person examination is necessary for Dr. Sawa to provide an opinion; and (b) an opinion is needed from that particular speciality (neurology).

[14] The plaintiff urged me to consider Wawanesa’s motion in the context of the history of this matter. I was referred, in particular, to para.10 of Ray J.’s reasons which stated, in part:

Wawanesa’s motion has not been triggered by anything the plaintiff did or failed to do. It was caused solely by its own failure to take these obligations [to take trial preparation, including the timely obtaining of expert reports] seriously. An additional problem created by Wawanesa is that the trial time was estimated at the time of the pre-trial without the benefit of knowing what, if any, defence experts were necessary. That in of itself raises the specter of additional trial time being necessary; and at a time of tight judicial scheduling, it may not be available and may have to be re-scheduled. Counsel’s position in its factum ignores all of the foregoing, and makes no apologies and says the only relevant factor is whether the trial date will be delayed.

[15] As I have already indicated, Wawanesa and its lawyers could not have possibility anticipated that Dr. Watson would accept a retainer to conduct a defence physical medical examination, but then decline to provide a report. Although the plaintiff argues that Wawanesa’s lawyer should have pinned Dr. Watson down more firmly, and obtained a written commitment from him in advance of the assessment date, I find that the actions taken by Wawanesa’s solicitors in terms of making arrangements with Dr. Watson were appropriate. In that regard, a solicitor for Wawanesa wrote to Dr. Watson on 30 June 2016 confirming that he could deliver his report two weeks after the defence medical examination scheduled for 8 September 2016. In response, Dr. Watson’s assistant left a voice mail message with a legal assistant at the law firm representing Wawanesa on 7 July 2016, confirming that Dr. Watson could deliver his report in two weeks from the assessment date of 8 September 2016.

[16] To the extent that there is any criticism of Wawanesa’s lawyers, it is that they did not alert the plaintiff’s lawyers to the difficulties that they were having with Dr. Watson sooner. Although, by 26 September 2016, Wawanesa’s lawyer knew that Dr. Watson was not going to cooperate further, it was not until 7 October 2016, when Wawanesa served its Notice of Motion, that the plaintiff’s lawyers were alerted. Given the contentious history of this matter, the solicitor for Wawanesa (not counsel on the motion) apparently reasoned that the plaintiff’s lawyer would not consent to the appointment with Dr. Sawa and therefore, elected to book a motion date and serve motion materials, rather than extend the professional courtesy of a letter or phone call to the plaintiff’s lawyer on or shortly after 26 September 2016.

[17] The “duplicity” argument is premised on the assertion that Wawanesa is effectively trying to relitigate the terms of Ray J.’s order.

[18] I do not see it that way. Ray J. made a determination in that there should be a defence medical examination by a neurologist. He turned his mind to concerns about the possibility that the trial could be delayed as a result by imposing a tight deadline for the delivery of the expert’s report. He was critical of the way in which Wawanesa has conducted certain aspects of this litigation and declined three other defence medical examinations which Wawanesa had requested.

[19] I do not think that it would be appropriate for me to revisit the issue of whether or not Wawanesa should, setting aside timing issues, be entitled to a defence medical examination by a neurologist. However, in the unusual circumstances created by Dr. Watson’s refusal to fulfil his commitment to deliver a medical report, it is appropriate that I consider whether or not Wawanesa should be able to repair the effect of Dr. Watson’s withdrawal by having the plaintiff examined by Dr. Sawa.

[20] Dr. Sawa would be the only retained expert witness called by it at trial (Wawanesa in its capacity as Mr. Babcock’s accident benefit insurer did have Mr. Babcock assessed by two neuropsychologists, and it is anticipated that they will be called as witnesses at trial, albeit not as experts retained by Wawanesa in the capacity in which it has been sued in the present action (as underinsured insurer pursusant to the OPCF-44R endorsement on Mr. Babcock’s policy with Wawanesa).

[21] Wawanesa argues that a defence medical is necessary as a matter of fairness: Bellamy v. Johnson (1992), 1992 CanLII 7491 (ON CA), 8 O.R. (3d) 591 (C.A.), that para.16-18: Godin v. Goncalves (2014), 7 C.P.C. (7th) 105, 2014 ONSC 7297 (Ont. Master) at paras. 24, 25, 29 and 48.

[22] While any medical examination is, by its very nature, intrusive, the major concern raised by the plaintiff is that if an examination by Dr. Sawa goes ahead, and his report is not delivered until 31 January 2017, which is just 55 days before the scheduled start of the trial, the trial date itself might be in jeopardy. There are a number of reasons for this concern.

[23] The plaintiff has not, to date, obtained an expert report from a neurologist (the plaintiff does, however, have a report from Dr. Unarket, a physiatrist, who concludes, based on an assessment of the plaintiff, medical documentation reviewed and the plaintiff’s clinical history, that Mr. Babcock’s accident related injuries, impairments and diagnoses included severe concussion/traumatic brain injury).

[24] The likely practical reality of granting Wawanesa’s motion is that the plaintiff will have to scramble in order to respond. Although the motion anticipates this by suggesting that the plaintiff should have until 3 March 2017 to serve any responding medical expert report, that may or may not be enough time. Wawanesa suggests that the plaintiff could line up a neurologist now so that, if required, a responding report can be obtained by 3 March 2017. However, the plaintiff is understandably reluctant to incur any expense associated with doing so which turns out to be unnecessary.

[25] Furthermore, it is not necessarily just a question of the plaintiff obtaining a responding report from a neurologist. The opinions of one or more of the other experts already retained by the plaintiff could be affected by whatever the report of Dr. Sawa says.

[26] There is no perfect solution. There would be a measure of unfairness in requiring Wawanesa, in the circumstances that have been described, to proceed to trial without having any defence medical evidence to put before the jury. On the other hand, the trial date could be compromised if the plaintiff is not able to effectively respond.

[27] While I am generally sympathetic to the concerns raised by the plaintiff, and in particular, share the view that there is no room in the current litigation environment for parties to leave the obtaining of evidence for trial to the last minute, the circumstances presented on this motion are unique.

[28] I have concluded that the plaintiff should be required to attend the examination by Dr. Sawa. Dr. Sawa’s report must be delivered on or before 31 January 2017. The sooner the better. If, for whatever reason, Dr. Sawa’s report is not delivered by 31 January 2017 then, the subject to the discretion of the trial judge, Dr. Sawa’s evidence will not be permitted to be introduced at trial (I realize that Ray J. made a similar order with respect to the evidence of Dr. Watson, but what transpired after Ray J. made his order is unlikely to be repeated).

[29] The plaintiff shall have until 3 March 2017 to serve any responding reports (whether by a neurologist or by one or more of the experts already retained by the plaintiff or, indeed, by any other expert evidence that responds to anything that may be contained in Dr. Sawa’s report).

[30] With an appropriate level of cooperation and effort by the lawyers for the parties, the trial date can, hopefully, be maintained. However, if, for whatever reason, the plaintiff feels that the deadline provided for responding evidence does not provide an adequate opportunity for response, the plaintiff shall be at liberty to seek a variation of my order or to request an adjournment of the trial.

[31] Although counsel provided costs summaries and agreed that costs should follow the result of the motion, I am not inclined to make any award of costs. It would be unfair, in the circumstances, to visit upon the plaintiff any additional financial burden. The plaintiff’s opposition to Wawanesa’s motion was reasonable.

Graeme Mew J.

Date: 25 November 2016