Court File and Parties

COURT FILE NO.: 5169/11 (Chatham) DATE: 20170621 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Josef Stonehouse, an incapable person so found, by his Litigation Guardian, Kelly Stonehouse, Kelly Stonehouse Plaintiffs – and – The Corporation of the Town of Lakeshore, The Corporation of the County of Essex, Girard Soulliere, Lorraine Soulliere Defendants

Counsel: Jerry F. O’Brien, for the Plaintiffs Kristen Dearlove, for the Defendant, The Corporation of the County of Essex

HEARD: May 29, 2017

Reasons for Judgment

PATTERSON J. :

[1] This is a motion by the defendant, The Corporation of the County of Essex (“Essex”), requesting that the plaintiff, Josef Stonehouse (“Mr. Stonehouse”), attend an assessment by neuropsychologist, Dr. Douglas Chute, together with raw test data compiled by the plaintiffs neuropsychologist, Dr. A. Cancelliere.

[2] On the return of the motion on May 29, 2017, in Chatham, I denied the application and provided oral reasons indicating that I would provide full written reasons if requested. That request has been made and these are those reasons.

[3] Mr. Stonehouse was injured in a car accident on September 27, 2009 and suffered a severe head injury.

[4] The plaintiffs arranged for a neuropsychologist, Dr. Cancelliere to do a neurological and neurocognitive assessment.

[5] Dr. Cancelliere’s neuropsychological assessment was done on June 30, 2010 and his neurocognitive assessment was done on November 22, 2011, together with a psychological assessment, also done on November 22, 2011.

[6] Mr. Stonehouse had been treated at Parkwood Hospital in November 2009 and in January 2010 received the catastrophic designation by the accident benefit insurer based on Mr. Stonehouse sustaining a severe head injury.

[7] In August 2013, a capacity assessment under the Substitute Decisions Act, 1992, S.O. 1992, c. 30 determined that Josef Stonehouse’s wife, Kelly, would be his power of attorney for property and care.

[8] Occupational Therapist, Gina Matesic, was retained and her first report of Attendant Care Needs for Mr. Stonehouse, dated June 16, 2010, indicated that he required 24 hours a day care.

[9] On February 23, 2012, Gina Matesic did a second Attendant Care Needs assessment having the advantage of Dr. Cancelliere’s additional reports as above mentioned and indicated that 24 hours a day care was not now required but 16 hours a day care was appropriate but that there should be supervision overnight.

[10] On April 24, 2012, Mr. Stonehouse saw a neuropsychologist, Dr. van Reekum, concerning the impact on Mr. Stonehouse caused by the severe brain injury. The impact of the brain injury was further confirmed by a psychiatrist, Dr. Chandrasena, on October 31, 2012.

[11] It was determined on doctor’s advice that Mr. Stonehouse could not be examined on discovery because of concerns about his capacity and that he had no memory of the accident.

[12] In May 2013, his wife Kelly was questioned as to her husband’s pre-accident history as well as how he functioned including his behavioural changes and cognitive issues.

[13] All of these reports and background information were available when the parties entered into a consent order dated May 21, 2014 at which time the timetable for the defendants’ medical examinations to be completed was December 31, 2014.

[14] The defendants did not ask for Mr. Stonehouse to be examined by their experts at any time prior to December 31, 2014 and filed no expert reports by this agreed to date.

[15] The plaintiffs arranged for Mr. Stonehouse to see Dr. van Reekum again and he did a second assessment report. They also arranged for Mr. Stonehouse to see Dr. Cancelliere again who completed a third assessment report.

[16] The plaintiffs arranged for a further attendant care needs assessment from Gina Matesic, dated May 24, 2016, who now recommended 18 hours a day care including overnight. In June 2016, the plaintiffs arranged for a Future Care Costs report by Krista Cole and in January 2016 obtained an Economic Loss report from Dr. Charette.

[17] All these above mentioned reports were available at a pre-trial conference before King J. on July 11, 2016 at which time all counsel consented to the action being placed on the trial list for March 6, 2017. All counsel signed the pre-trial conference form that indicated they were ready to proceed to trial.

[18] In November 2016, the Chatham trial coordinator indicated that the matter could not be dealt with at the scheduled March 6 or as had previously been extended to a March 20, 2017 trial date. As a result the matter was dealt with at the February 21, 2017 assignment court and, on consent of all parties, the trial was set for January 8, 2018. A further pre-trial is scheduled for August 1, 2017.

[19] The trial record was filed on May 8, 2015 by the plaintiffs in order to comply with the timetable set by the consent order dated May 21, 2014.

[20] One month after the July 11, 2016 pretrial, the defendant Essex raised the issue of conducting a defence medical assessment of Mr. Stonehouse for the first time. The defendant requested that Mr. Stonehouse see their occupational therapist for an assessment, namely, Toni-Marie Taylor and that he also be assessed by the Life Care Planner, Dana Weldon.

[21] Mr. O’Brien, plaintiffs’ counsel, consented to these assessments and further consented to a future care assessment by the defendants’ expert Dr. Hasnain. These assessments took place on October 12, 2016 and November 6, 2016, on consent.

[22] On January 10, 2017, Essex’s lawyer wrote to Mr. Stonehouse’s lawyer requesting for the first time that Mr. Stonehouse have a defence neurological assessment with Dr. Chute on March 17, 2017.

[23] The plaintiffs did not consent to a further examination by Dr. Chute and as a result this motion was brought.

[24] The Taylor and Weldon reports have not been provided and on the return of the motion Dr. Hasnain’s report was submitted to the court.

[25] In an affidavit, Dr. Hasnain, who was retained for the purpose of commenting on Mr. Stonehouse’s future care needs, stated that he could not give an opinion without the benefit of a response to the neurological reports of Dr. Cancelliere. This resulted in Essex requesting an assessment by the Essex’s neuropsychologist, Dr. Chute.

[26] Dr. Hasnain stated that he had the reports done by Dr. Cancelliere but he believed Essex had not had an opportunity to respond to them and that a neurological assessment by Dr. Chute would provide information as to Mr. Stonehouse’s current neurocognitive functioning and provide a full assessment of what limitations he may have.

[27] Dr. Hasnain was cross-examined on his affidavit on May 24, 2017 and of importance to the matter at hand is question 335:

Q. Okay. So the neuropsychological assessment by Dr. Chute is simply to make the world more perfect, to use your expression, by giving the defendant a chance to have an assessment and just to perfect things. Correct? A. For providing corollary data. Right.

[28] In response to other questions, “providing corollary data” meant supporting it (namely Dr. Cancelliere’s opinion). He also wished to confirm that there was no bias. He answered further that in response to a question of whether he could point to any bias the doctor answered at 339:

A. Like I said, I just felt that he wasn’t quite a neurologically, psychologically, cognitively, impaired as maybe Dr. Cancelliere said. But that’s the only question I have in my mind.

[29] Dr. Hasnain raised the issue of the defendants lack of opportunity to respond and the issue of bias but provided no facts that these issues existed. This is further confirmed by the report that was submitted on the hearing of the motion at which time the doctor said:

“I would agree that his diagnosis and recommendations from his treating practitioner are based on scientific analysis. It is in my opinion, he should receive further psychotherapy twice a month to increase to his cognitive abilities.”

[30] He further commented,

“Mr. Stonehouse is able to manage most of his activities of daily with his wife’s assistance, however, he does require some assistance with usual things he was able to do before such as minor construction around the house and is unable to drive either, it would be a risk for him to drive at all.”

[31] He further mentioned he should not do anything at heights to repairs around the house or roofing. He further states that “[i]n terms of grading his brain injury he would be between moderate and severe and he would have long term sequelae of this as well.”

[32] In the future the doctor indicated that Mr. Stonehouse was going to have ongoing needs related to the cognitive impairments regarding his memory, that he should continue being active in a brain injury program and with Scouts Canada and that he will continue to require assistance from his wife with certain activities of daily living and will need to continue to be driven as his restrictions with driving are permanent. Mr. Stonehouse should also receive psychotherapy twice a month to increase his cognitive abilities.

[33] This matter was set down for trial in May 2015 in accordance with a consented to timetable and therefore by r. 48.01(1) (of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194) leave is required. Pursuant to r. 48.07 where the matter is placed on a trial list, as has been done twice in this case, all parties shall be deemed to be ready for trial.

[34] There is a difference of opinion as to the interpretation of r. 48.04 as to whether when a defendant consents to pre-trial and trial dates, this act satisfies the requirement for consent under the rule.

[35] The plaintiffs submit that leave is required.

[36] The defendant submits that the r. 48.06(1) requirement for leave under r. 48.04(1) is limited to the 60-day time limit mentioned in r. 48.06(1).

[37] The plaintiffs further argue that the court has discretion to order additional examinations to ensure trial fairness under s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43. This authorizes the court to make an order that a party undergo a physical or mental examination by a health practitioner where the physical and mental condition of a party in a proceeding is in question and further that under r. 33.02(2) the court may order a second examination or further examinations on such terms respecting costs and other matters as are just.

[38] The party seeking the examination must establish if it is warranted and necessary on the facts of the case: see Mason v. MacMarmon Foundation, 2011 ONSC 5823, at paras. 42-43.

[39] They also submit that a further medical examination may be warranted where a party’s condition has changed or deteriorated since the date of the previous examination or a more current assessment of the plaintiff’s condition is required for trial.

[40] Essex submits that Mr. Stonehouse has had three neurological assessments as well as future care costs reports and that the proposed assessment before Dr. Chute is to create a level playing field and to provide the court with the best evidence for trial.

[41] Essex further submits that the plaintiffs are not prejudiced. The new trial date is not until January 2018 and the defendants have agreed to the reasonable costs of attending the assessment.

[42] Essex submits that the future care needs and costs are a live issue especially because Mr. Stonehouse has discontinued all formal rehabilitation treatment since 2013. Essex submits the purpose for Dr. Chute to assess Mr. Stonehouse’s cognitive impairments is to assist in determining Mr. Stonehouse’s future case needs and costs related thereto.

[43] The plaintiffs counter the leave argument by citing cases including the decision by Karakatsanis J. in Valemont Group Ltd. v. Philmor Goldplate Homes Inc., 2010 ONSC 1685. She stated,

“[w]hen litigants obtain a trial date, policy consideration strongly support the requirement to seek leave before any new motion can be brought. The parties are deemed to be ready for trial, and should not be able to easily derail this process just because the trial date has been moved back.”

[44] On the facts of this case, not only had the trial record been filed in May 2014 but there was a consent timetable requiring the defendants to file any expert reports by December 31, 2014. Further on July 11, 2016 there was a pre-trial before King J. at which the trial date was set for the following March. At that time, all parties signed an undertaking that they were ready for trial. It was subsequent to this that the defendants requested future care and costs assessments, a report and an assessment by Dr. Hasnain. Subsequently, the defendants requested an assessment by Dr. Chute. I again note that the parties, in February 2017, agreed to a trial date in January 2018.

[45] In my opinion leave is required under r. 48.04(1) as stated by Karakatsanis J. in the Valemont case. The Trial Record has been filed and the parties agreed that they were ready for trial at the July 11, 2016 pre-trial. As a result, leave is not granted.

[46] If I am wrong and leave is not required or if required and should be granted, I make the following comments.

[47] The defendants did not file any expert reports prior to the December 31, 2014, as consented to. There is no evidence that the defendants acted reasonably and in good faith or made their best efforts to comply with the timetable.

[48] In regard to the request for further medical examinations under s. 105(4) the test to be applied is necessity, fairness, and prejudice.

[49] This is a discretionary matter as noted in Ramrup v. Lazarra, 2014 ONSC 283, at para. 47 and in Chew v. Munoz, 2016 ONSC 1511, at para. 14.

[50] The onus is on the defendant to present sufficient evidence as to the necessity of a further medical examination and in my opinion they have not done so. Dr. Hasnain did not describe Dr. Chute’s assessment as being necessary for completing his report. The defence will not be able to deliver the reports by r. 53.03 within 60 days of the pre-trial conference which is being held on August 1, 2017. I again note that the defendants delivered no expert reports prior to the pre-trial before King J. in July 2016 and signed an undertaking they were ready for trial.

[51] In my opinion the concern that Essex has expressed could have been mitigated and avoided by them if they had not left it too late to obtain the defence medical they are now requesting.

[52] Further, there was information provided to the court that repeated neurological testing within one year of the last time of testing would cause “practice effects”. Essex indicates that there are methods to mitigate against “practice effects” but this issue could have been avoided if the defendants had acted on a more timely basis.

[53] As noted by the plaintiffs, the defendants were prepared to proceed to trial March 6, 2017 without a neurological assessment and the fact that the trial has been delayed does not change this situation. As noted in Chew by Rady J., at para. 17, it appears to me that the defendants made a strategic decision not to request a defence neurological assessment and later had a “late change of heart”.

[54] I agree with the plaintiffs’ submissions that the defendants’ situation is of their own making. They have not established necessity for the new medical assessment. My opinion is there will be prejudice to the plaintiffs being able to respond to Dr. Chute’s report. I also am concerned about the “practice effect” of a new neurological test with respect to the previous testing.

[55] By Dr. Hasnain’s statement on cross-examination that it does not appear that the assessment by Dr. Chute is necessary for his report, as his report has been filed with the court. Dr. Hasnain agreed that Dr. Chute’s assessment would “simply make the world more perfect.”

[56] For the above reasons the motion is denied.

[57] After submissions and the provision by both parties’ bill of costs I order costs to the plaintiffs fixed at $15,500 all in.

“original signed and released by Patterson J.” Terrence L.J. Patterson Justice

Released: June 21, 2017

COURT FILE NO.: 5169/11 (Chatham) ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Josef Stonehouse, an incapable person so found, by his Litigation Guardian, Kelly Stonehouse, Kelly Stonehouse Plaintiffs – and – The Corporation of the Town of Lakeshore, The Corporation of the County of Essex, Girard Soulliere, Lorraine Soulliere Defendants REASONS FOR JUDGMENT Patterson J. Released: June 21, 2017