Court File and Parties
COURT FILE NO.: CV-08-353871 MOTION HEARD: 20170613 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kidest Wondimu Asrat, Plaintiff/Responding Party AND: 1438305 Ontario Inc, C.O.B. Elemental Embrace Wellness Spa, Begumpara Sadrudeen Teja, Abdul-Jamal Shamji, Ryaz Shamji, Jelil Teja, and Jarzer Teja, Defendants/Moving Parties
BEFORE: Master P. Tamara Sugunasiri
COUNSEL: M. Moktar, Counsel, for the Defendants/Moving Party S. Barclay, Counsel, for the Plaintiff/Responding Party
HEARD: June 13, 2017
REASONS FOR DECISION
Background
[1] The Plaintiff has brought an action claiming unpaid wages ($300,000) and general damages for assault, intimidation, false imprisonment, wrongful imprisonment, unlawful confinement, wrongful confinement, fraudulent misrepresentation, intentional infliction of nervous shock, and conspiracy ($1,000,000). She claims additionally for special and punitive damages. On March 30, 2015, after the delivery of her Trial Record, the Plaintiff served Dr. Young’s psycho-legal assessment. In that report, Dr. Young indicated that in coming to his conclusions, he relied on what I refer to as “raw data” – namely standardized tests, self-reports and questionnaires.
Nature of the Motion
[2] At examinations for discovery, the Plaintiff was asked to provide this raw data. At first, the question was taken under advisement. It later became a refusal. This is a motion by the Defendants for an order compelling the Plaintiff to “provide the raw data and forms or questionnaires that were filled out by the Plaintiff as part of the psycho-legal assessment conducted by Dr. Gerald Young” pursuant to Rule 31.06(3) of the Rules of Civil Procedure. The Plaintiff has confirmed that Dr. Young’s file contains handwritten notes, questionnaires and answers. The Plaintiff is willing to provide the handwritten notes provided that they not be disclosed to anyone but the Defendants’ counsel and that they be destroyed upon completion of the proceeding by either settlement or trial. Dr. Young claims a proprietary interest over the questionnaires and indicates that the answers would not makes sense without the questions.
[3] For the reasons set out below, I allow the motion in part and order that the Plaintiff provide Dr. Young’s handwritten notes, and all questionnaires and answers underlying his report, on the condition that this raw data only be provided to counsel for the Defendants and/or any responding expert, and all copies, including any given to a responding expert, must be destroyed upon completion of the proceeding either by trial or settlement. In the case of copies provided to a defence expert, the expert must destroy all copies of Dr. Young’s raw data upon completion of his or her retainer.
Analysis
[4] One issue that the Court must determine in analogous personal injury cases is whether the raw data, and especially the expert’s handwritten notes, are “findings” pursuant to Rule 31.06(3). If they are, the rule requires production. There is no reason, in this case, to resolve this issue. The Plaintiff does not argue that the information in Dr. Young’s file are not findings and should not be produced. Rather, they contend that a) disclosure of the handwritten notes should have the aforementioned conditions as per Long et al. v. Dundee Resort et al., 2012 ONSC 3201; and b) the Defendants must bring a motion for non-party production to obtain the questionnaires and answers because the Plaintiff has made best efforts to obtain them from Dr. Young. I will therefore focus on two issues:
a. Should Dr. Young’s handwritten notes be produced subject to the conditions that they only be produced to counsel and a responding expert, and be destroyed upon completion of the action by settlement or trial, or should they be produced with no conditions? b. Are the Defendants required to pursue a non-party production motion to obtain the questionnaires and answers in light of Dr. Young’s proprietary claim over them?
Dr. Young’s Handwritten Notes
[5] The Defendants argue that there is no basis for putting conditions on the production of the handwritten notes or any of the raw data. On the other hand, the Plaintiff argues that production should be governed by the principles in Long, supra.
[6] In Long, supra, the Court considered whether the common practice of providing raw data in brain injury cases between the neuropsychologists only should continue. The rationale for the practice was that raw test data in this sphere is considered to be information that cannot be understood without the benefit of specialized training. Further, the practice was developed to recognize the highly confidential and personal nature of the information. This position in part was based on guidelines published by the Canadian Psychological Association.
[7] In one sense, the facts of Long are somewhat different. First, this is not a brain injury case involving a neuropsychologist where there has been physical trauma to the brain. Dr. Young is a psychologist who conducted a psycho-legal assessment of the Plaintiff’s mental health. Second, in Long, the defendants requested the plaintiff to attend a defence medical with a neuropsychologist. The plaintiff agreed, on the proviso that the doctor’s raw test data was provided directly to plaintiff’s counsel. The defence neuropsychologist refused to conduct the medical on this basis, insisting instead that this raw data should not be disclosed to anyone who was a “non-psychologist”. Here, the defence is asking for the raw data of the Plaintiff’s psycho-legal opinion to be available to the Defendants themselves. There is no issue about the raw data being provided to counsel. Third, the action in Long was not yet at the pre-trial stage and so part of the Court’s analysis turned on whether production of the raw data was necessary prior to the pre-trial stage of the action.
[8] In both cases, however, the general question is whether or not production of raw data should be restricted. Ultimately, the Court weighed two competing interests. The first is the public interest in having all relevant evidence before the Court. In that regard, Justice Edwards discussed the importance of counsel having the raw data once the action has reached the pre-trial stage such that he could prepare for cross-examination of the opposing party’s expert. Second, there is a legitimate interest of psychologists in maintaining the integrity and validity of the mental health process (Long, supra at para. 22).
[9] While I agree with the Defendants’ submissions that Long is quite different from the facts of this case, Justice Edwards’ approach is instructive and some of his analysis is directly on point. The present case is beyond the pre-trial stage although it is slated to be heard in early 2019. Prior to this motion, a trial had been scheduled for January of 2017 and had to be adjourned due to the Plaintiff’s availability. If I apply the analysis in Long, there is no doubt that the Defendants’ counsel are entitled to Dr. Young’s handwritten notes in order to prepare for his cross-examination. Further, given the nature of this case and in particular the allegations of intimidation, which of course have yet to be adjudicated on the merits, the privacy interest of the Plaintiff at this stage is nevertheless a relevant factor. The Defendants have not persuaded me that there is any need for the Defendants themselves to see these notes and I see no prejudice to them to deny access. In my view, it is in the interests of justice to restrict production of the handwritten notes to Defendants’ counsel and any expert retained by defence counsel to address Dr. Young’s assessment.
[10] There is also no reason to retain them beyond the trial process. The purpose of Rule 31.06(3) and disclosure rules in general is, among other things, to promote the public interest in ensuring that a Court has all of the relevant evidence before it, that the parties are similarly positioned in knowing the case to be tried, and the trial process is fair. Once the action is complete, other interests must be considered like the public interest (not just a psychologist’s interest) in maintaining the integrity of the mental health evaluation process. One way to maintain that integrity is, where possible, to protect patient privacy once the case is complete. In weighing the interests of the parties in addition to the broader interests discussed above, I see no prejudice to the Defendants in protecting the Plaintiff’s privacy in this way. As such, the Defendants’ counsel shall destroy all copies of Dr. Young’s handwritten notes upon completion of the action, either by settlement or trial.
Dr. Young’s Questionnaires and Answers
[11] Dr. Young indicated in an email to Plaintiff’s counsel that the questionnaires put to the Plaintiff in the course of his assessment are “proprietary”. The Plaintiff’s counsel now presents this position as a reason why the questionnaires cannot be produced. The Plaintiff asserts that the present motion is an undertakings and refusals motion and that she has made best efforts to obtain the questionnaires and answers from Dr. Young. What is required to obtain the documents is a further non-party production motion. While that may technically be true, I have discretion to address the questionnaire issue within the present motion and may grant relief ancillary to the motion brought. In doing so I am mindful of the goals of Rule 1.04 of the Rules of Civil Procedure to promote the most just, efficient and expedient adjudication of the case on its merits. It is inefficient to bifurcate the issues in this case relating to raw data by making one ruling on Dr. Young’s handwritten notes now, and deferring the production of the questionnaires and answers to another motion. I have Dr. Young’s position and counsel was present to represent his interests. I can decide the issue within the present motion.
[12] It is clear from reviewing Dr. Young’s report that he relied extensively on answers to various questionnaires to form his diagnosis and prognosis. The analysis and discussion relating to the handwritten notes are equally applicable to the production of questionnaires and answers. Dr. Young’s proprietary interest is an additional interest to be considered but it does not automatically trump the competing interests already set out.
[13] In balancing Dr. Young’s proprietary claim with the competing interests of fairness at trial, the importance of a Court having the benefit of all relevant information, the interest of mental health professionals in maintaining the integrity of the mental health evaluation process, it is just and equitable in this case to order production of all questionnaires and answers used by Dr. Young to evaluate the Plaintiff. At this pre-trial stage, it would be unfair to the Defendants to deprive them of the benefit of that raw data in order to prepare for Dr. Young’s cross-examination even if the Defendants have not retained an expert and may, at this stage, require leave of the Court to do so. Given that the trial is now scheduled for 2019, the Defendants may in any event choose to retain a defence expert who would also need this information to either assist the Defendants in preparing a cross-examination, or to prepare an independent defence psycho-legal assessment. As noted by Justice Edwards in Long, the production of the raw data may assist in the resolution of the case before trial, an additional factor that favours production in this case.
[14] The production of questionnaires and answers shall be solely to Defendants’ counsel and shall be destroyed upon completion of the action by settlement or trial. In addition, to balance Dr. Young’s proprietary claim, should the Defendant provide the questionnaires and answers to another psychologist to assist in trial preparation or for the purposes of provided a responding expert report, any such expert shall destroy the questionnaires and answers upon completion of his or her retainer. For consistency, this additional requirement vis-à-vis the defence expert applies to the handwritten notes as well.
[15] As a final note, production of this raw data does not in any way determine its admissibility at trial. I have no jurisdiction to determine admissibility and that, in any event, is subject to the discretion of the trial judge.
Disposition
[16] Given the foregoing, I order as follows:
a. The Plaintiff and Dr. Young are ordered to provide his handwritten notes, questionnaires, and answers from his assessment of the Plaintiff to Defendants’ counsel; b. Defendants’ counsel may not share the handwritten notes, questionnaires and answers with the Defendants; c. Defendants’ counsel shall destroy all copies of the handwritten notes, questionnaires and answers upon completion of the action, either by settlement or trial; d. If Defendants’ counsel retain an expert to review the handwritten notes, questionnaires and answers, any such expert shall destroy all copies of those documents upon completion of his or her retainer; and e. If the parties cannot agree on costs of the motion, they may make written submissions to me within 30 days from the date of these reasons. Submissions shall be no more than 3 pages plus costs outlines.
“Master P. Tamara Sugunasiri”