Court File and Parties

Court File No.: CV-15-99-00 Date: 2017 Feb 3

Ontario Superior Court of Justice

Between: Slava Kushnir, Plaintiff – and – Jamie Macari and CP Reit Ontario Properties Limited, Defendants

Counsel: Warren WhiteKnight, for the Plaintiff S. Daniel Baldwin, for the Defendant, Jamie Macari

Heard at Kingston: January 12, 2017

MacLeod-Beliveau, J.

Reasons for Decision

[1] This is a motion brought by the defendant Jamie Macari for an order pursuant to section 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and Rule 33 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The defendant seeks an order to require the plaintiff to undergo two independent medical examinations in Toronto with Dr. Michael Ford, an orthopedic surgeon, on February 27, 2017 and Dr. Donald Young, a neuropsychologist, on April 18, 2107, pursuant to seven conditions already agreed upon by the parties. The defendant seeks a further order that the plaintiff pay the sum of $3,107.50 inclusive of HST to Baldwin Law Professional Corporation in Trust, to reimburse the defendant for the late cancellation fee charged by Dr. Ford for the failure of the plaintiff to attend an examination with Dr. Ford on December 1, 2016, and for costs of this motion.

[2] The plaintiff seeks an order on the motion that three additional conditions of the medical examinations be imposed. The plaintiff seeks an order that any independent medical examinations conducted on the plaintiff shall not be ghost written, including inter alia:

1. The written report will be drafted solely and entirely by the examining doctor;
2. The research and medical record review leading to the report will be conducted solely and entirely by the examining doctor; and
3. The records will not be shared with any third parties.

[3] The plaintiff seeks a further order that the cancellation fee of $3,107.50 is not payable by the plaintiff to the defendant, and for costs of the motion.

[4] The co-defendant CP Reit Ontario Properties Limited did not appear on the motion.

Result

[5] The defendant’s motion is allowed in part with three additional conditions of the medical assessments of the plaintiff added as modified by the court. The plaintiff shall reimburse the defendant the sum of $776.88 for the cancellation fee of Dr. Ford payable within 15 business days.

The Issues

[6] The issues in this case are:

1. Whether or not the court should impose terms requiring counsel and the health practitioners to confirm that they will not engage in ghost writing and have such a term set out in an order of the court as a condition of the examinations?
2. Who should pay the cancellation fee of $3,107.50 charged by Dr. Michael Ford for the late cancellation of the examination of the plaintiff on December 1, 2016?

Positions of the Parties

[7] The defendant’s position is that the condition proposed of no ghost writing implicitly suggests some form of improper offensive conduct and is an attack on the integrity of counsel and health practitioners in general. It is the defendant’s position further that if the health practitioner signs the report in any event, they adopt its contents as their own and they are responsible for the opinion stated. It is the defendant’s position that a condition that the report of the examining health practitioner be Rule 53.03 (2.1) compliant is sufficient to ensure and address the concerns of plaintiff’s counsel that there will be no ghost writing of the expert’s report. It is the defendant’s position that as the plaintiff did not attend the medical examination appointment on December 1, 2016, and advised them on short notice, that the plaintiff is responsible for the late cancellation fee charged by Dr. Ford.

[8] The plaintiff’s position is that the condition of no ghost writing is required to protect the plaintiff and to ensure trial fairness. It is the plaintiff’s position that ghost writing of expert reports is becoming common place and problematic in litigation files and with expert reports in general. The plaintiff does not allege in this case any specific wrongdoing of counsel for the defendant or the proposed health practitioners conducting the assessments of the plaintiff. It is the plaintiff’s position that as they did not agree on the terms of the consent for the assessments and as there was no court order that the plaintiff is not responsible for any part of the cancellation fee charged by Dr. Ford.

Background

[9] On October 15, 2014, at approximately 6:00 p.m., the plaintiff was a pedestrian at the Kingston Centre, which is a shopping plaza owned and operated by the co-defendant CP Reit Ontario Properties Limited. The defendant Jamie Macari was exiting the Loblaw’s store area in his motor vehicle when he allegedly struck the plaintiff who was crossing an interior roadway in the parking lot. The impact allegedly sent the plaintiff onto the hood of the vehicle and then onto the pavement. The plaintiff was taken to the hospital by ambulance.

[10] At the time of the accident, the plaintiff, age 76, was a retired Queen’s University professor of French literature, fluent in three languages, and a published author. She commenced her statement of claim on February 24, 2015 claiming $750,000.00 in damages, plus interest and costs. The plaintiff claims damages for permanent and serious injuries to her back, neck, pelvis and brain. The defendant Jamie Macari, age 31, was the owner and operator of the motor vehicle involved.

[11] There is no issue in this case that the defendant is entitled to the two independent medical examinations requested. The plaintiff has already been assessed by experts chosen by the plaintiff namely Dr. Derek Cooke, an orthopedic surgeon, and by Dr. Duncan Day, a clinical psychologist. Their reports were served on the defendant January 25, 2016. Their reports do not contain an undertaking of plaintiff’s counsel or the examining doctors that their reports are not ghost written. Discoveries were held March 8-9, 2016 and a pre-trial is scheduled for June 13, 2017. The parties agreed to the defence medical examinations being held prior to the pre-trial. The parties agreed to seven conditions for the two assessments by the defendant’s experts on consent. The parties are not agreed on whether or not the plaintiff can insist as a condition of the assessments that there be no ghost writing.

[12] The defendant attempted to set up independent medical examinations with Dr. Ford and Dr. Young in Toronto. On September 29, 2016, the defendant advised the plaintiff of the appointment with Dr. Ford on November 8, 2016 at 9:00 a.m. and requested confirmation from the plaintiff that the plaintiff was available and would attend. To accommodate the plaintiff, this appointment was later changed to December 1, 2016 at 1:00 p.m. so that the plaintiff would not have to stay overnight in Toronto. On October 5, 2016, the defendant advised the plaintiff of the appointment with Dr. Young on January 24, 2017 at 9:00 a.m. and requested confirmation that the plaintiff was available and would attend. In both cases the defendant confirmed that they would pay the reasonable travel expenses of the plaintiff to attend the appointments.

[13] On October 4, 2016, the plaintiff sought various conditions with respect to the examinations and sent the defendant a draft order but did not challenge the dates of the assessments. By correspondence dated October 26, 2016 from the defendant and November 1, 2016 from the plaintiff, the parties agreed to the following seven conditions:

1. The defendant will pay for travel from and between the plaintiff’s home and the examinations, and will reimburse the plaintiff for travel expenses incurred, including overnight accommodations and meals, and that the plaintiff will provide receipts;
2. The curriculum vitae of each doctor will be produced with their reports;
3. Neither examination will be audio or video recorded;
4. An index of medical records or reports provided to the doctors will be produced with the doctors’ reports;
5. That best efforts will be made to provide the reports within 90 days of the examination, and in any event the defendant will produce the reports to the plaintiff within 10 business days of receiving them;
6. The doctors will not use a questionnaire; and
7. The Plaintiff will sign consents approved by plaintiff’s counsel.

[14] The plaintiff confirmed their agreement with the above terms, but specified that there was one omission that must be addressed which is that the reports must not be ghost written and must be the sole product of Dr. Young and Dr. Ford respectively for their individual reports. The plaintiff went on to state that this requirement was merely a reiteration of Rule 33.06 (1) which states that the medical report shall be prepared by the examining health practitioner. The wording of this condition in the plaintiff’s draft order sent to the defendant was as follows:

THIS COURT ORDERS that the reports of Dr. Ford and Dr. Young will not be ghost written and that the reports must be the sole work of the doctor and not any other individual(s) and not a report partly written by administrative staff or other individuals employed by the agency through which the doctor provides expert services.

[15] In correspondence dated November 22, 2016, the defendant advised the plaintiff that they took offence to the reference of ghost writing and asked the plaintiff to confirm if they were suggesting defence counsel, Mr. Baldwin, Dr. Ford and/or Dr. Young engage in ghost writing. If so, they demanded facts of particular instances to support such an offensive suggestion. Alternatively, the defendants required confirmation that the plaintiff’s use of the term ghost writing was careless, ill-advised and without foundation. No further information was provided by the plaintiff.

[16] The defendant’s counsel in submissions stated that this was a unique request in his practice and that he had never seen a request that there be no ghost writing before from any other counsel. Plaintiff’s counsel in submissions stated on the other hand that the no ghost writing term was now a common place condition agreed upon on consent of counsel to protect the interests of plaintiffs at these types of examinations.

[17] The defendant states that the Rules are clear and sufficient. Rule 33.06 (1) states that the examining health practitioner shall prepare a written report. Rule 53.03 (2.1) provides for an acknowledgement of expert’s duty (Form 53) signed by the expert, which includes inter alia an acknowledgement of the expert of their duty to provide opinion evidence that is fair, objective and non-partisan.

[18] In correspondence dated November 23, 2016, the plaintiff confirmed agreement of the previous seven conditions, but stated that without confirmation of the condition that the reports would not be ghost written and will be solely the product of the examining doctor, that the plaintiff would not attend for the examinations. In correspondence later the same day, the defendant advised the plaintiff that his office had never received an expert report for which the medical practitioner confirms that it is not ghost written and he would be taking instruction to bring a motion to compel the plaintiff’s attendance at the examinations.

[19] In correspondence dated November 25, 2016, the defendant sought confirmation that the plaintiff would attend the examination by Dr. Ford on December 1, 2016 as scheduled. If the plaintiff was not going to attend, the defendant asked to be advised as soon as possible to avoid any cancellation fees which were stated to be $2,750.00 plus of $357.50 for a total of $3,107.50 and put the plaintiff on notice that they would be seeking reimbursement for this expense. This was considered a second cancellation as it had been re-scheduled once before to accommodate the plaintiff.

[20] In later correspondence the same day, the plaintiff reiterated the same position and stated that failing confirmation that the expert reports will not be ghost written and will be solely the product of the examining doctor that the plaintiff will not attend.

[21] The defendant then cancelled the examination with Dr. Ford and re-scheduled it for February 27, 2017 to allow time for this motion to be brought. On November 28, 2016 the defendant received an invoice for late cancellation fees of $3,107.50 inclusive of HST from Dr. Ford. The defendant also cancelled the appointment with Dr. Young and re-scheduled it for April 18, 2017. No late cancellation fees were payable as a result of the cancellation with Dr. Young.

[22] The motion was issued January 3, 2017 returnable January 12, 2017 when it was argued.

Analysis

The Ghost Writing Issue

[23] There is no issue that the plaintiff is obliged to submit to these examinations. There is also no issue that the court may impose terms of the examinations if there is a proper evidentiary record and if it is appropriate to do so.

[24] The purpose of Rule 33 and section 105 of the Courts of Justice Act is to ensure a fair trial and create a level playing field.

[25] The plaintiff defined ghost writing as follows:

When an expert opinion is tendered that is attributable to one author but where the opinion contained is in fact the opinion even, in part, of people not named on the report.

[26] The Oxford Dictionary defines a ghost writer as:

A person whose job it is to write material for someone else who is the named author.

[27] Ghost writing does exist within the legal profession, particularly in the preparation of materials, motions, applications, memorandums, facta and books of authority. By way of example, an instructing counsel can hire other counsel to prepare a factum which the instructing counsel then uses in argument in court, submitting the factum as their own work. This is distinctly different than ghost writing of an expert’s report. The expert is providing expert opinion evidence that can directly affect the result of the litigation and the interests of the parties.

[28] There is limited jurisprudence on this issue. Litigation counsel deal with conditions of these examinations on a daily basis but appear to rarely litigate about them. In Lavecchia v. McGinn, [2016] O.J. No.1750 (S.C.J.) at para 12, Master C.U.C. MacLeod, as he then was, had a similar case about conditions of an independent medical examination. In that case the parties had already agreed that there would be no ghost writing but handled it in a more indirect manner. Master MacLeod stated that:

They have agreed that the expert is required to comply with Rule 53.03(2.1) in preparing his report…. Item h) was an indirect way to prevent a ghost written report. The parties are in agreement that an expert report must be the report of the expert and not a report partly written by administrative staff or other individuals employed by the agency through which the doctor provides expert services. [Emphasis added]

[29] The item h) that he was referring to reads:

h) Health records and information of the plaintiff were not to be disclosed to any other person or entity other than defence counsel.

[30] The case goes on to highlight that ghost written reports are becoming a problem at para 13. Incredibly, an expert admitted at trial that much of her report was actually written by someone else. Another expert improperly expressed an opinion on credibility. Master MacLeod stated that, “Suffice it to say that there is merit to the argument that greater rigour and predictability concerning the role and use of experts might save time at trial and promote settlements”.

[31] The issue of who actually wrote the report is of particular concern to the litigation bar as many cases are resolved prior to trial on the basis of the expert reports received which form the basis of counsel’s assessment of the case and subsequent offers to settle. The parties pay substantial fees to experts for their reports and they have a right to expect those reports to be written by the author of the report. If the parties cannot rely on the reports being actually written by the author of the report, it attacks the very foundation and purpose of the expert report in the first place, and frankly wreaks havoc with the litigation process. If reports cannot be relied upon, unnecessary litigation is promoted.

[32] The parties, counsel and the court rely on the expertise of the stated author and the opinion stated in an expert’s report. Many cases resolve after the delivery and exchange of expert reports, without the test of the opinion in court through examination-in-chief and cross-examination. If the parties cannot rely on the fact that the report is the sole work of its author, then the benefit and cost of expert reports is dubious.

[33] There are now examples of cases that have gone to trial where ghost writing has occurred and the expert has testified that part of their report was in fact written by someone else, which fact was never previously disclosed. See Lavecchia v. McGinn at paras. 12-13 referring to El-Khodr v. Lackie, 2015 ONSC 5830; and Children’s Aid Society of London and Middlesex v. B. (C.D.), [2013] ONSC 2858 (S.C.J.) at para 40.

[34] The real danger is what about the cases that were settled based on the expert’s opinion as stated in the report without ever going to trial? The parties, counsel or the court at a pre-trial would never know if it was solely written by the author of the report or not. Sadly, because of a few rogue experts who have admitted to using ghost writing when they were cross-examined at trial or in a voir dire as to their expert qualifications, the issue has become serious enough that the litigation bar is now requiring that it be put into conditions of these assessments. While many examinations proceed on consent as in Rule 33.08, the terms of the consent are often supported by previous court ordered conditions for these examinations that the bar has adopted into their consents.

[35] The very nature of these examinations is highly intrusive. Parties involved in litigation should be able to rely on the court as the gatekeeper of the process to ensure its fairness. In my view, the plaintiff has established a sufficient evidentiary basis for the court to consider the issue in the interests of fairness to the parties, and the administration of justice as part of the court’s gatekeeper function to ensure due process.

[36] I do not agree with the defendant that the condition that the plaintiff seeks is completely unnecessary. I find the plaintiff’s position has merit to ensure trial fairness and maintain faith in the administration of justice. The plaintiff has met the onus to show compelling reasons why the court should impose a condition to ensure that expert reports are written solely by their author. I have carefully considered the interests of the parties, counsel and the health practitioners involved and I find that there is sufficient reason to set some basic conditions to address the issues raised, but not in the form that the plaintiff has requested.

[37] The draft order requested by the plaintiff on the motion requests the following terms:

1. THIS COURT ORDERS that any independent medical examination conducted of the plaintiff shall not be ghost written, including inter alia: a. The written report will be drafted solely and entirely by the examining doctor; b. The research and medical record review leading to the report will be conducted solely and entirely by the examining doctor; and c. The records will not be shared with any third parties.

[38] In my view, the proper interpretation of Rule 33.06 is that the report of the expert shall be written solely by its author. To be clear, the expert report must be that of the expert and not a report written partly by administrative staff or other individuals employed by the agency through which the doctor provides expert services. This is what the parties and the courts expect and it is what the Rule implies. I find ghost writing offends Rule 33.06.

[39] I find however, that the wording of the condition sought by the plaintiff that the expert not engage in ghost writing is strident and overreaching. I agree with the defendant that it does suggest some form of improper conduct by an expert and/or counsel when none may exist. Counsel and experts alike may take offense and feel their integrity is impugned which was the case here. I find the term that the research and medical record review leading to the report will be conducted solely and entirely by the examining doctor to be redundant and is covered in the term that the report shall be written solely by its author. It is important that the plaintiff’s records not be shared with any third parties in the interests of privacy, and to further discourage ghost writing of any portion of the report.

[40] I find that the goal of ensuring trial fairness can be accomplished by imposing the following additional more generic conditions of the examinations:

1. The report of the expert shall be Rule 53.03 (2.1) compliant.
2. The report of the expert shall be Rule 33.06 compliant and shall be written solely by its author.
3. Health records and information of the plaintiff shall not be disclosed by the expert to any other person or entity other than defence counsel.

[41] Most importantly, the result in this case shall not in any way be considered to impugn the integrity of counsel for the defendant, Mr. S. Daniel Baldwin, Dr. Ford or Dr. Young which has not been questioned.

The Late Cancellation Fee Issue

[42] The plaintiff and the defendant agreed that there would be defence medical examinations of the plaintiff prior to the pre-trial of this matter on June 13, 2017. The defendant proceeded in the usual course to schedule the appointments and to advise the plaintiff of the dates of the examinations. The condition about no ghost writing came as a complete surprise to the defendant. The plaintiff’s position is that the defendant jumped the gun and that the defendant should have waited until all the conditions were agreed upon. While the defendant did retain the doctors in advance of the plaintiff’s consent, the plaintiff implicitly agreed to the dates of these examinations. The defendant was compelled to obtain these assessment dates to enable the reports to be available for the judicial pre-trial. I find that both parties contributed to the delay and to the incurring of the cancellation fee in this case on an equal basis. No evidence was produced as to what Dr. Ford’s cancellation fee policies actually were or the time line for when they would be incurred, or if credit was given if the examination proceeded at a later date.

[43] I find the cancellation fee to be excessive. The amount of $2,750.00 plus HST is what many orthopedic medical experts charge for their complete assessment including completion of their report. A reasonable cancellation fee I find would be $1,375.00 plus HST or one-half the amount charged. In all the circumstances of this case, I assess the plaintiff’s contribution to the cancellation fee at one half or $687.50 plus HST of $89.38 for a total of $776.88. The plaintiff shall pay to the defendant the sum of $776.88 for her share of the cancellation fee of Dr. Ford within 15 business days.

Conclusion

[44] Order to go that the independent medical examinations of the plaintiff are subject to the following seven conditions as agreed to between the parties:

1. The defendant will pay for travel from and between the plaintiff’s home and the examinations, and will reimburse the plaintiff for travel expenses incurred, including overnight accommodations and meals, and that the plaintiff will provide receipts;
2. The curriculum vitae of each doctor will be produced with their reports;
3. Neither examination will be audio or video recorded;
4. An index of medical records or reports provided to the doctors will be produced with the doctors’ reports;
5. That best efforts will be made to provide the reports within 90 days of the examination, and in any event the defendant will produce the reports to the plaintiff within 10 business days of receiving them;
6. The doctors will not use a questionnaire; and
7. The plaintiff will sign consents approved by plaintiff’s counsel.

[45] In addition, the following three conditions shall be required for the independent medical examinations of the plaintiff:

8. The report of the expert shall be Rule 53.03 (2.1) compliant.
9. The report of the expert shall be Rule 33.06 compliant and shall be written solely by its author.
10. Health records and information of the plaintiff shall not be disclosed by the expert to any other person or entity other than defence counsel.

[46] The plaintiff shall pay to the defendant the sum of $776.88 for her share of the cancellation fee of Dr. Ford, directed to be payable to Baldwin Law Professional Corporation in Trust and payable within 15 business days.

[47] The dates, times and location of the assessments with Dr. Ford and Dr. Young shall be included in the order.

[48] If counsel are unable to agree on costs of the motion, I will receive brief written submissions on or before March 10, 2017 as follows: from the defendant by February 17, 2017; from the plaintiff by March 3, 2017; and the defendant’s reply if any, by March 10, 2017. Thereafter, I will determine the issue of costs based on the materials filed.

Honourable Madam Justice Helen MacLeod-Beliveau Released: February 3, 2017