CITATION: Kechnie v. MacAllister, 2016 ONSC 912

COURT FILE NO.: 12-CV-54540

DATE: 2016/02/05

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KATHERINE KECHNIE and DEBORAH CONNERS, Plaintiffs

AND:

ANDREW MacALLISTER, AXA INSURANCE (CANADA), and INTACT INSURANCE COMPANY OF CANADA / INTACT COMPAGNIE D’ASSURANCE, Defendants

BEFORE: MASTER MACLEOD

COUNSEL: Jennifer T. Arrigo, for the corporate defendants, moving parties

Laurie A. Tucker, for the plaintiffs, responding parties

HEARD: February 4^th, 2016

ENDORSEMENT

[1] This is an action arising from a motor vehicle accident which occurred on July 13^th, 2010. The plaintiff Kechnie claims damages for personal injury and the plaintiff Conners claims damages under the Family Law Act. The former includes damages for what now appears to be chronic pain with a significant psychological component. The latter includes damages for loss of care, guidance and companionship.

[2] The trial of this action is scheduled to begin on February 22^nd, 2016. That is in two and a half weeks. A further pre-trial has been ordered for February 11^th, 2016. That is next week.

[3] The defendants bring a motion for production of additional clinical records and for a further medical examination of the plaintiff by a psychiatrist. The plaintiffs resist both of these demands.

Background – relationship & counselling

[4] For purposes of these reasons only a brief outline of the facts and the chronology of the litigation is required. The pertinent facts are as follows.

[5] The plaintiffs are unmarried spouses who have been co-habiting since 1994. During their relationship and prior to the accident they were each involved in counselling with a psychotherapist, Maggie Gardam. This included some joint counselling in 2007 because they had a difficult period in their relationship which resulted in temporary separation. They subsequently reconciled and were living together at the time of the accident. They continue in that relationship today.

[6] The accident occurred on July 13^th, 2010 on the Woodroffe Avenue South off ramp from Highway 417. As a consequence of a rear end collision, the injured plaintiff, Katherine Kechnie claims to have suffered injuries that resulted in chronic neck and back pain, dizziness, headaches, sleep dysfunction, depression and anxiety. She seeks significant damages for pain, suffering, loss of enjoyment, income loss, loss of housekeeping capacity and future care costs.

[7] The plaintiff Deborah Conners seeks damages for loss of income, out of pocket expenses and an amount for loss of care, guidance and companionship. It will be her evidence at trial that the relationship between the plaintiffs was impacted by the accident and in particular there has been a loss of intimacy, recreational activities, outdoor activities and socialization as a couple. Following the accident, both plaintiffs continued to see Ms. Gardam for counselling and engaged in at least one joint counselling session dealing with the impact of the accident.

[8] The plaintiffs have produced Ms. Gardam’s clinical notes for Ms. Kechnie both before and after the accident and they have produced or agreed to produce the notes for joint counselling sessions both pre-accident and post-accident. They have not agreed to produce the clinical notes for individual counselling with Ms. Conners for the period before the accident. That is one of the issues in the motion. Ms. Gardam is expected to be a witness for the plaintiffs at trial.

Background – medical evidence

[9] At trial the plaintiffs intend to call a number of treating health professionals for Ms. Kechnie. They also intend to call a psychiatrist (Dr. Quan), a psychologist (Dr. Ricci) and a chronic pain specialist (Dr. Smith). A neuropsychologist (Dr. Gow) may also be called as she did certain testing.

[10] The defendants have previously had the plaintiff examined by two medical experts. Dr. Hines is a psychiatrist who examined the plaintiff in November of 2014. In his report delivered the following month, Dr. Hines concluded that Ms. Kechnie suffered from an “adjustment disorder with mixed anxiety and decreased mood” as a result of the accident but he reported that she did not have any functional impairment from the disorder as it had responded to treatment and was largely in remission.

[11] The defendants also had the plaintiff examined by a physiatrist, Dr. Kleinman who prepared a report dated December 11^th, 2015. In his report, Dr. Kleinman opined that there was no neuromusculoskeletal impairment or any other physical impairment that can be correlated with accident related injuries. He acknowledged that the clinical record demonstrated she was suffering from chronic pain which appeared to be related to psychoemotional difficulties secondary to depression and anxiety. He does not profess to be competent to assess the extent to which those difficulties are disabling or causally related to the accident.

[12] Subsequent to Dr. Hines original examination in 2014, the plaintiff has served the reports of a treating psychologist (December 2014), the psychiatric report of Dr. Quan (May 2015), a psychovocational assessment (September 2015) and a supplementary chronic pain report (December 2015). A report from Dr. Gow is also expected.

[13] Because Dr. Hines has not seen the plaintiff since November of 2014 and because he found at that time that the psychiatric condition of the plaintiff was not disabling, the defendants wish to have a re-examination by Dr. Hines so that he can update his report. They propose that the plaintiff travel to Toronto to be examined on February 8^th. Of course they propose to reimburse her for her expenses in so doing.

Background – history of the litigation

[14] The action was commenced in May of 2012.

[15] The plaintiff set the action down for trial on January 20^th, 2014. There followed a case conference on March 26^th, 2014 at which time the erstwhile Master Roger fixed a pre-trial date for December 15^th, 2014. At that time he ordered inter alia answers to undertakings and for “any motion on the topic of undertakings or refusals required prior to trial” to be “served in a timely manner”.

[16] In August of 2014 the parties attended mediation with Brian Parnega but the action did not settle.

[17] On December 15^th, 2014 the parties appeared for a pre-trial with Master Roger (as he still was). In the order fixing the date of the trial for February of this year, the master specifically gave leave to bring a motion “to deal with expert reports” if the parties could not agree on medical reports.

[18] On January 27^th, 2016 this matter was listed in trial management court because the defendant had requested an urgent case conference to address certain pre-trial issues. At that time Justice Beaudoin confirmed the trial date was set for February 22^nd, 2016, scheduled the additional pre-trial for February 11^th and directed that the “motion for updated IME/refusals be heard on Thursday February 4^th, 2016”. That is how the parties came before me on Thursday on the morning list and argued this motion.

Issues & Analysis

[19] Turning firstly to the question of the clinical notes, there is no doubt that clinical notes compiled by Ms. Connor’s therapist in the years prior to the accident will be relevant if they speak to the nature and quality of the matrimonial relationship. This is because Ms. Connor seeks damages for loss of care, guidance and companionship. She seeks substantial damages for the loss of these aspects of the relationship consequent on the accident and its impact on Ms. Kechnie.

[20] To assess entitlement and quantum for this head of damages, the jury will have to understand the extent to which the relationship was positive and nurturing before the accident and how that changed. It will also be relevant to know if there were other factors at work besides the accident.

[21] The evidence suggests that the pre-accident counselling would be highly relevant. Counselling began in 2007 at the time the plaintiffs briefly separated. At Q. 137 of her discovery, Ms. Conners stated that she and Ms. Kechnie “did a couple of sessions together” and then “we saw the same counsellor that we had seen together, separately”. She went on to state that “it just became clear that we were each working on our own issues and as we did that, our relationship issues were resolved through that”. The accident was in 2010. Post-accident she stated at Q. 142 of her discovery that she had gone to see the therapist “about the accident a few times”.

[22] Under these circumstances and in light of these answers, in my view the clinical notes of Ms. Conners’ counselling sessions both before and after the accident are relevant and should have been produced. Had the motion been brought in 2014 when Master Roger directed that it be brought in a timely manner, I would have granted it without question.

[23] I need to deal briefly with the question of leave because I was referred to considerable case law on the subject. I concur completely with the analysis of my colleague Master Graham in the Jetport case.[^1] In that case he held that the inclusion of rule 31.07 in the list of rules exempted from the leave requirement of Rule 48.04 did not mean that a party who had set an action down could bring refusals motions without leave. But that is of little assistance in the present case. Rule 48.04 only applies to the party who takes the step of setting the matter down for trial (which in this case was the plaintiff) or to a party that consents to the matter being placed on the trial list (which in this case does not apply).

[24] Justice Stinson reviewed the wording of Rule 48.04 in Ananthamoorthy v. Ellison.[^2] As he points out in that case, the rule was written at a time when trial scheduling was very different from that which now exists in Toronto and also in Ottawa. The requirement for leave in Rule 48.04 captures only a party who sets an action down for trial or a party who consents to listing for trial. If the rule is read in context, it is clear that the reference to consenting to the action being placed on the list refers to subrule 48.06 (1). So the requirement for leave does not generally apply to defendants[^3] and as found by both Stinson J. and Perell J, consent in the rule should not be “confused with the Toronto Region Certification Form to set pre-trial and trial dates”.[^4] That logic would also apply to the system of trial scheduling in Ottawa. Merely agreeing on dates is not a consent under Rule 48.04.

[25] In any event, the issue of leave in the case at bar is something of a distraction. If leave is required to bring a motion, that leave will generally be granted if the justice of the case requires it. Conversely, even if there is no technical requirement for leave, a motion brought close to trial should not be granted if it would be unfair to do so.

[26] The principle underlying Rule 48.04 is sound. A party should not be permitted to advise the court it is ready for trial and then continue with potentially disruptive discovery efforts. In the context of the current system, parties should not be readily permitted to ignore timetables or to commit to fixed trial dates with deadlines and then bring last minute motions that either derail the trial or put the other party at a disadvantage.

[27] Neither party is asking to postpone the trial even if both orders are granted. But in the event the orders are granted and something unexpected emerges from them, the plaintiffs would be placed in the unpalatable situation of having to then argue for an adjournment or be forced to proceed without adequate time to respond or recalibrate.

[28] I therefore must weigh the potential importance of the evidence sought against the procedural unfairness of last minute requests. There is no persuasive explanation as to why the motion for production of the clinical notes was not brought in accordance with Master Roger’s original case management order or immediately after the trial date was set. On the other hand the plaintiff is not taken by surprise because the demand for production of these notes has been more or less ongoing since the discovery.

[29] There is a further consideration of trial efficiency. Ms. Gardam is on the witness list for the trial. She will be asked about her interaction with both plaintiffs and it is inevitable that in that evidence she will be asked about these clinical notes. While the use and admissibility of the notes may be subject to objection and rulings by the trial judge, it is simply inefficient not to have them produced in advance. In my view these notes should have been produced without demand and as they are few in number and brief, it is not onerous to do so now. Thus I am granting the motion for production.

[30] The demand for a follow up examination of the plaintiff by the defence psychiatrist is another matter. The defendant wishes to have the plaintiff attend in Toronto on February 8^th to be re-examined by Dr. Hines. As set out above, Dr. Hines is a psychiatrist who examined the plaintiff in Mississauga in November of 2014. From his report it would appear that the examination consisted of observation and interview. He concluded that while she was suffering from a psychiatric sequela as the result of the accident, the condition was not disabling as it was in remission.

[31] The argument for a further medical examination by Dr. Hines at this time is that when he testifies at trial, he will not have seen the plaintiff for over a year. Although he can of course conduct a paper review of all subsequent medical information, it would be preferable for him to have an opportunity to examine the plaintiff. Otherwise it is feared that his evidence may be vulnerable because his opportunity to interact with the plaintiff in person is dated.

[32] I cannot agree that it is reasonable to require the plaintiff to undergo a further medical examination two weeks prior to the trial. Other than the delivery of reports that disagree with the opinion of Dr. Hines, the defendants were not able to demonstrate significant changes in the past year that would require a further medical examination. In addition, I agree with counsel for the plaintiff that asking a plaintiff who is allegedly suffering from a debilitating psychiatric condition including severe anxiety to attend a medical examination in Toronto while she and her counsel are in the middle of trial preparation is unreasonable. Even if Dr. Hines were to come to Ottawa for this purpose, this demand is far too close to the trial and is based on far too flimsy an evidentiary basis.

[33] I decline to order a further pre-trial medical examination by Dr. Hines.

Conclusion and Costs

[34] In summary, the motion for production of the pre-accident clinical notes of Magge Gardam in relation to Deborah Conners is granted. The motion for a further psychiatric examination of the plaintiff is dismissed.

[35] As success on the motion has been divided and as the motion is on the eve of trial, the costs of this motion shall be reserved to the trial judge.

February 5, 2016

___________________________

Master MacLeod

[^1]: Jetport Inc. v. Global Aerospace Underwriting Managers et. al. 2013 ONSC 2740; (2013) 115 O.R. (3d) 772 [^2]: 2013 ONSC 340 @ paras. 10 -12 [^3]: Unless of course it is the defendant who took the step of setting the action down for trial. [^4]: Ananthamoorthy, supra @ paras 11 & 12 citing Fromm v. Rajani [2009] O.J. No. 3671 The system in Ottawa is similar to that in Toronto.