Court File and Parties

COURT FILE NO.: CV-13-474410 MOTION HEARD: July 18, 2017 SUPERIOR COURT OF JUSTICE – ONTARIO

Re: NICOLA FEDERICO, LYNDA FEDERICO and FEDERICO PLUMBING AND HEATING LIMITED Plaintiffs v. RAPHAEL DAVID JUNIOR HASSAN, CAROL PRECIOUS HASSAN, SHADI THOBA and RANI THOBA Defendants

BEFORE: Master Lou Ann M. Pope

APPEARANCES: Michael Katzman, David S. Wilson Barristers & Solicitors, for plaintiffs Fax: 416-943-1049 Matthew J. Sutton, Laxton Glass LLP, for defendants, Raphael David Junior Hassan and Carol Precious Hassan Fax: 416-363-7112

Reasons for Endorsement

[1] The defendants, Raphael David Junior Hassan and Carol Precious Hassan (“defendants”), seek an order requiring the plaintiff, Nicola Federico (“plaintiff”), to attend a defence medical examination with Dr. Mehdiratta, neurologist. The defendants also seek ancillary relief with respect to varying a court order.

[2] The plaintiffs oppose the motion on the grounds that the defendants have not satisfied the test to obtain a further physical assessment and they are not in compliance with an order requiring defence medical assessments be completed at least 18 months before trial.

[3] The action arises out of two motor vehicle accidents. The first occurred on January 19, 2012 that involved the two Hassan defendants, and the second occurred on November 21, 2012 that involved the two Thoba defendants. In these two accidents, the plaintiff allegedly sustained an exacerbation of various injuries sustained in a previous motor vehicle accident which occurred on December 20, 2006.

[4] This action was ordered to be tried together with Court File No. CV-08-368670, being the plaintiff’s action arising out of the 2006 accident.

Defence Neurological Examination

[5] The plaintiffs served reports from Dr. Stewart, neurologist, dated June 10, 2014, Dr. Wong, physiatrist, dated July 4, 2014 and a current and future care needs report by Carol Kelly, Occupational Therapist, dated October 13, 2014. In addition, Mr. Sutton advised the court at the hearing of this motion that the plaintiff served a further neurological report from Dr. Stewart the previous day on July 17, 2017.

[6] The plaintiff was treated by Dr. Bril, neurologist, following the subject accident.

[7] The defendants have obtained psychological and physiatry assessments of the plaintiff, both completed in May 2017. The plaintiffs have refused the defendants a neurological assessment primarily on the grounds that they obtained a physiatry assessment and are not entitled to two physical assessments.

[8] The defendants’ first request for medical assessments was on August 17, 2016 when they requested four medical examinations; namely, psychology scheduled for October 7, 2016, orthopaedic surgery scheduled for October 12, 2016, neurology scheduled for October 17, 2016 and physiatry scheduled for February 23, 2017.

[9] Plaintiffs’ counsel did not respond to Mr. Sutton’s letter of August 17, 2016 until October 5, 2016, two days before the psychology examination and merely days before the other two examinations. Plaintiffs’ counsel was agreeable to a psychological examination, but not each of orthopaedic, neurological and physiatry examinations.

[10] Between November 29, 2016 and January 30, 2017, plaintiffs’ counsel and Mr. Sutton had discussions regarding the defence medical examinations. By April 6, 2017, counsel had not come to an agreement; therefore, defence counsel advised that they had arranged medical examinations by a psychologist, neurologist and physiatrist to be held in May 2017. Thereafter, plaintiffs’ counsel advised that he would agree to psychological and physiatry examinations, but not a neurological examination. On April 18, 2016, defence counsel advised that the defendants intended on bringing a motion and the date of May 3, 2017 was tentatively scheduled. The motion was rescheduled to proceed on June 29, 2017 at which time it was adjourned to July 18, 2017.

Law

[11] Section 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) sets out the court’s authority to order the physical or mental examination of a party to a proceeding. The relevant provisions are subsections (2) and (4) which state as follows:

(2) Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.

(4) The court may, on motion, order further physical or mental examinations.

[12] Rule 33.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”), sets out the authority of the court to make specific orders regarding an examination and to order further examinations.

33.02 (1) An order under section 105 of the Courts of Justice Act may specify the time, place and purpose of the examination and shall name the health practitioner or practitioners by whom it is to be conducted.

(2) The court may order a second examination or further examinations on such terms respecting costs and other matters as are just.

[13] The purpose of defence medical examinations is to put the parties on equal footing by allowing the defendant to meet the case advanced by the plaintiff and to respond to the allegations made by the plaintiff in the statement of claim: see Girao v. Cunningham, 2010 ONSC 4607, [2010] O.J. No. 3642, at para. 18, citing Chapell v. Marchall Estate, [2001] O.J. No. 3009.

[14] In Tsegay v. McGuire, 1 C.P.C. (5th) 311, 25 C.C.L.I. (3d) 317 (ONSC), at para. 5, Gillese J. stated that medical reports are critical to the resolution of personal injury disputes, the choice of physician to conduct the defence medical examination is a matter of importance to the defence and that medical reports contribute to settlements and constitute the crucial expert evidence on which a court relies to do justice between the parties if the matter proceeds to trial. Her Honour went on to state that the policy behind the defence medical exam is to uphold the right of the defendant to conduct his or her defence and to assist the court at trial by furnishing expert evidence that is subject to the adversarial process.

[15] Justice Mitrow in Ramrup v. Lazzara, 2014 ONSC 130, 58 C.P.C. (7th) 417, at para. 46, considered a motion by the defendants to require the plaintiff to attend two additional defence medicals. He emphasized that the purpose of a second or subsequent defence examination is not to go “one for one” or “tit for tat” with the number of plaintiff expert reports. He stated further that it is not simply a numbers game and that the issue of trial fairness concerns a defendant having an adequate opportunity of meeting the plaintiff’s case.

[16] The theme running through the jurisprudence is whether a further defence medical is necessary as a matter of fairness in order to level the playing field. There is no dispute that the test to be applied in determining whether to order a further defence medical is necessity, fairness and prejudice: see Ramrup, at para. 47, citing Jeffrey v. Baker, 2010 ONSC 5620, [2010] O.J. No. 4415 (S.C.J.), at para. 12.

[17] It was the opinion of Justice Brown in Bonello v. Taylor, 2010 ONSC 5723, at para. 16, that trial fairness is the guiding principle regarding further examinations and “matching reports”. He stated:

That said, I would venture that trial fairness should operate as the guiding principle in this area, so if the plaintiff has decided that expert evidence from one specialty based on an examination of the plaintiff is relevant to the adjudication of her claim at trial, courts should be loathe to deny the defence a fair opportunity to respond with expert evidence from the same specialty based on an assessment of the plaintiff.

Positions of the Parties

[18] It is the defendants’ position that (1) a second physical assessment is necessary in light of the plaintiff’s ongoing neurological complaints, (2) it is fair as the plaintiff has undergone a neurological assessment at the request of his counsel, and (3) it would not cause prejudice to the plaintiff.

[19] It is the plaintiffs’ position that (1) the defendants are seeking a neurological assessment in order to obtain matching reports to each of the medical expert reports served by the plaintiffs, (2) the defendants are entitled to one physical examination and, as such, a physiatrist would be able to provide a complete physical assessment, and (3) the defendants are able to avail themselves at trial of a report of Dr. Robert Chen, neurologist, who examined the plaintiff at the request of the defendants to the action arising out of the 2006 accident.

Analysis

[20] The plaintiff has put his neurological health at issue based on the injuries alleged in the statement of claim.

[21] The plaintiff has consistently complained of an exacerbation of his pre-existing neurological impairments as a result of the subject accidents. In fact, the plaintiff was referred to Dr. Boulis, physiatrist, who examined him on May 31, 2012. This examination occurred after the first accident on January 19, 2012 involving the Hassan defendants and prior to the November 21, 2012 accident involving the Thoba defendants. Dr. Boulis diagnosed him with soft tissue injuries of the spine from the first accident although his back pain had improved. It is noted however that the plaintiff complained of numbness in the anterior thigh areas that he experienced before the accident but worsened after the accident. He also complained of pain in the left shoulder and weakness in the left hand with intermittent neck pain and intermittent lower back pain. Dr. Boulis recommended that the plaintiff return to Dr. Bril who is a neurologist for “another electrodiagnostic study” because the numbness was worsening.

[22] Thereafter, the plaintiff saw Dr. Bril in November 2012 for assessment of his left upper limb weakness. It appears that the plaintiff was assessed by Dr. Bril prior to the 2012 accidents. In his report dated November 20, 2012, Dr. Bril stated that the plaintiff reported having recently noticed weakness of the left upper limb since January 2012, again attributing the weakness to the January 19, 2012 accident. Dr Bril stated further that the nerve conduction studies indicated conduction block of the left median and ulnar nerves with a worsening of the motor parameters of the left lower limb. Dr. Bril recommended more aggressive treatment.

[23] Notably, Dr. Bril’s “neuromuscular clinic note” of June 3, 2013, which was some seven months after seeing the plaintiff in November 2012, indicates that the plaintiff thinks his weakness and limitations are due to his car accidents. The diagnosis is noted as being peripheral neuropathy with onset in 2003. Dr. Bril noted that they would take a “watch and wait and see what happens” approach.

[24] In June 2014, the plaintiff was assessed by Dr. Stewart, neurologist, on behalf of plaintiffs’ counsel. Dr. Stewart assessed the plaintiff previously with respect to the injuries he sustained from the 2006 accident. It is Dr. Stewart’s opinion that the plaintiff was disabled from the injuries sustained in the 2006 accident. It is his further opinion that the January 19, 2012 accident aggravated his neck pain, low back pain and shoulder pain. Dr. Stewart states that notes suggest there was weakness and numbness in his left grip shortly after the accident; however, the plaintiff thought it came on sometime between the two accidents of January and November 2012. He states further that the plaintiff complains of weakness and numbness in the left arm and although the plaintiff stated that the symptoms improved somewhat after that accident, many records suggest they continued. In summary, Dr. Stewart’s opinion is that the two accidents aggravated his pre-existing conditions and produced some new conditions as described. He states that the plaintiff was disabled before the accidents and remains significantly disabled with more pain. He states further that the plaintiff is permanently and seriously disabled as a result of all three accidents. In particular, he states that the first accident in 2006 caused the major problems which aggravated his pre-existing neuropathy. The two accidents in 2012 caused more difficulties and made him more uncomfortable. His symptoms are unlikely to improve in any way.

[25] The plaintiff was assessed by Dr. Wong, physiatrist, on July 7, 2014, at the request of plaintiffs’ counsel. Dr. Wong stated in his report that the plaintiff complained of pain in his cervical spine with radiation of the pain into the area of both shoulders and into his arms. The plaintiff told Dr. Wong that pain developed in the right side of his neck, upper back and left arm since the second accident in January 2012. The plaintiff stated further that the neck pain increased with activities involving prolonged periods of sitting or when he turns his head too much. Further, the plaintiff complained of pain in his arms since the first accident which escalated in his left arm since the second and third accidents in 2012.

[26] In my view, the evidence reveals unambiguously that the plaintiff has consistently complained to his medical assessors of an exacerbation of his pre-existing neurological injuries since the 2012 accidents. It is the reason for the plaintiff being referred to both Dr. Boulis and Dr. Bril. Dr. Bril recommended and presumably treated the plaintiff more aggressively having diagnosed him with conduction block of the left median and ulnar nerves with a worsening of the motor parameters of the left lower limb. Further, it is the opinion of Dr. Stewart, the plaintiff’s neurological expert, that the 2012 accidents exacerbated the plaintiff’s pre-existing neck pain, low back pain and shoulder pain and aggravated his pre-existing neuropathy.

[27] Therefore, I find that it is necessary for the defendants to have the plaintiff assessed by a neurologist in order to address the issues of nature, causation and prognosis of the plaintiff’s alleged neurological injuries, impairments and impact on the plaintiff’s ability to engage in his activities of daily living. In addition, I find that given the medical evidence that will be presented at trial, along with the plaintiff’s independent neurological report of Dr. Stewart, it would be grossly unfair if the defendants were prevented from having an adequate opportunity of meeting the plaintiff’s case. In my view, this is the crux of the issue before me – trial fairness. While the plaintiff submits that the defendants could have had their physiatrist perform a complete physical assessment of the plaintiff, it is noteworthy that the plaintiffs’ physiatrist, Dr. Wong, did not perform a neurologic assessment. In my view, the plaintiff obtained two independent medical assessments in the fields of neurology and physiatry for obvious reasons; namely, due to the plaintiff’s pre-existing neurologic complaints, his diagnosis of pre-existing neuropathy and his complaints after the 2012 accidents of an exacerbation of his pre-existing condition with additional complaints. In my view, the defendants’ request for a neurologic assessment is well founded and based on the overwhelming evidence, and it is not an attempt to obtain matching reports. As such, I find that the defendants would be prejudiced by having to go to trial without a neurological assessment of the plaintiff in the face of his consistent neurologic complaints and the resultant diagnoses. Lastly, I find no persuasive reason that the defendants should be restricted to relying on Dr. Chen’s opinion, being the opinion of the neurologist obtained by the defendants arising out of the 2006 accident.

[28] For the above reasons, it is my view that trial fairness dictates in the circumstances herein that the defendants be entitled to an independent neurologic assessment.

[29] I will now address the other relief sought by the defendants on this motion.

Vary Endorsement of Justice Himel

[30] The defendants seek an order varying Justice Himel’s order dated April 29, 2015.

[31] On April 29, 2015 at To Be Spoken To Court, Himel J. scheduled a jury trial of the two actions for February 20, 2018 for 25 days. The pre-trial conference is scheduled for October 17, 2017. Mr. Sutton did not attend court on April 29, 2015 as he was unavailable; however, he advised plaintiffs’ counsel that he agreed to having the trial scheduled in 2018. Plaintiffs’ counsel agreed to attend court on behalf of Mr. Sutton. Justice Himel ordered that “any further defence medicals must be completed at least 18 months prior to trial subj. to further order of the court”. (my emphasis)

[32] The practical effect of Justice Himel’s order is that all defence medical assessments were to be completed by August 20, 2016, being 18 months before the trial scheduled for February 20, 2018. It also meant that the defendants had from April 29, 2016 to August 20, 2016, less than four months to complete all their medical assessments. This is important to note because on April 29, 2016, the defendants had not obtained any medical assessments. This, of course, was known by plaintiff’s counsel at To Be Spoken To Court.

[33] Notably, Justice Himel’s order did not require that defence expert reports be delivered by August 20, 2016. Rule 53.03(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, (“Rules”) requires that a party who intends to call an expert witness at trial to respond to the expert witness of another party shall, not less than 60 days before the pre-trial conference, serve all expert reports on every other party to the action. Therefore, applying the timeline under rule 53.03(2), all responding expert reports of the defendants must be served no later than August 17, 2017 for the pre-trial conference on October 17, 2017.

[34] Therefore, the practical effect of the 18-month timeline in Justice Himel’s order meant that all defence assessments had to be completed by August 20, 2016, which gave the defendants less than four months to complete them. On the other hand, the defendants’ responding expert reports need not be served until August 17, 2017 at the latest.

[35] Further, it is noteworthy that despite the order requiring the completion of all defence medical assessments by August 20, 2016, plaintiff’s counsel permitted the defendants to have the plaintiff assessed by a physiatrist and psychologist in May 2017. In fact, it is the defendants’ evidence that the first time Mr. Sutton was notified of the plaintiffs’ position regarding the court-ordered timeline for defence medical examinations was upon receipt of the plaintiffs’ responding motion material on or about June 23, 2017.

[36] For the following reasons, I grant the defendants’ motion to extend the timeline to obtain a neurological assessment to September 1, 2017. Firstly, Mr. Sutton was not present in court on April 29, 2015 and could not make submissions on the short timeline of less than four months to complete all medical assessments. It is reasonable to assume that Mr. Sutton would have objected strongly to that short timeline. Secondly, Justice Himel’s order provided that the timeline could be varied by the court. Thirdly, given that the pre-trial conference is scheduled for October 17, 2017, and the timeline for service of responding expert reports under rule 53.03(2) is no later than August 17, 2017, I find no justification for the requirement that all defence medical examinations be completed a year prior to the rule 53.03(2) timeline. Further, in spite of the 18-month timeline, the plaintiffs permitted the defendants to conduct medical assessments well beyond the timeline. Lastly, the plaintiffs did not raise any issue with respect to the said timeline during numerous communications with defence counsel until they served their responding motion material. As such, I find the plaintiffs’ insistence on compliance with the 18-month timeline to be without merit and disingenuous.

Relief to Amend Timetable

[37] The defendants seek to amend Master Glustein’s order dated December 9, 2013 to include dates for the completion of a defence neurological examination. The timetable provided no timeline to complete defence medical examinations. Given my ruling above, I find no basis to vary Master Glustein’s order.

Costs

[38] All parties filed costs outlines. I permitted the parties to file written costs submissions of no more than three pages double spaced by July 21 2016. The plaintiffs failed to comply with my order with respect to the length of their submissions. Their costs submissions are six and a half pages long. As such, I have not considered any submissions beyond paragraph 16.

[39] Regarding costs of the June 29, 2017 hearing, in my view, the defendants are entitled to costs of their production/inspection motion for the same reasons given in my endorsement on that date when I ordered costs to the defendants in the related action.

[40] Regarding costs of the hearing on July 18, 2017, if the defendants are successful, the plaintiffs seek costs. The grounds are twofold; namely, the court would be granting the defendants an indulgence by permitting them to obtain a further medical assessment particularly in light of Justice Himel’s order, and it was reasonable for the plaintiffs to oppose the motion.

[41] The motion on June 29, 2017 was adjourned due to all parties utilizing the time allocated for the hearing of the defendants’ production/inspection motions brought in both this action and the related action. The Rules and the practice directions require that counsel consult on the time required for a motion. Therefore, I find that it would be unfair to penalize the defendants in this action only for utilizing the entire time for the motions that were brought by the defendants in this action and the related action. It seems to me that the oversight in the time scheduled for this motion must be placed on all parties in both actions. As such, although the defendants sought to file additional evidence on June 29, 2017, the motion for a defence medical could not have proceeded in any event on that day because, as stated above, the parties in both actions used the majority of the time scheduled for the production/inspection motions. Therefore, for those reasons, I decline to order costs to the plaintiff for the adjournment of the defendants’ motion for a defence medical.

[42] It is clear from the evidence and admitted by the defendants that they did not complete their independent medical assessments by the deadline set by Himel J. of 18 months prior to trial, or August 20, 2016. However, it is my view that had the plaintiffs agreed to a defence neurological examination in August 2016 when requested by the defendants, it is more likely than not that the assessment would have been completed on October 17, 2016 as scheduled. I reach that finding as the plaintiffs did not oppose defence psychological and physiatric assessments being conducted after the deadline set by Himel J. Further, the plaintiffs did not raise any issue regarding the deadline set by Himel J. until they served responding material on this motion. Therefore, for the above reasons, I find that the delay in bringing this motion was due to counsel being engaged in discussions from August 2016 to the date the notice of motion was filed on May 3, 2017 regarding the defendants’ entitlement to the neurological assessment.

[43] Therefore, having been successful in obtaining leave to conduct a neurological defence assessment, to extend the time under the Justice Himel’s order and to extend the time under rule 53.03(2) to deliver the responding neurological report, I find that the defendants are entitled to costs of the motion which I fix in the amount of $7,500 inclusive, payable within 30 days.

Summary

[44] The defendants’ motion is granted and the following orders shall issue:

(a) the plaintiff, Nicola Federico, shall attend a defence neurological assessment with Dr. Mehdiratta at a date to be agreed upon by the parties and no later than September 1, 2017;

(b) the provisions of rule 53.03(2) shall be extended to October 2, 2017;

(c) the defendants shall complete the neurological assessment no later than September 1, 2017;

(c) costs to the defendants in the amount of $7,500, payable within 30 days.

(Original Signed) July 26, 2017 Master Lou Ann M. Pope