Court File and Parties
Citation: Amorim v. Beluhoff, 2017 ONSC 4860 Court File No.: CV-13-85141 Date: 2017-08-30 Corrigenda: 2017-08-31 Superior Court of Justice - Ontario
Re: Rui Amorim, Plaintiff And: Anita Beluhoff and Jevco Insurance Company, Defendants
Before: Justice M.L. Edwards
Counsel: Eman Khoshbin, Counsel for the Plaintiff John Lea, Counsel for the Defendants
Heard: August 11, 2017
Revised Endorsement
The text of the original endorsement has been corrected with the text of the corrigendum (released today’s date)
Overview
[1] The Defendants seek an order for a further defence medical examination of the Plaintiff, to be conducted by a psychiatrist. The Plaintiff has already been examined for the defence by a neurologist and a neuropsychologist. The chronology of this case, like so many of these cases, is important in ensuring trial fairness between the parties.
The Facts
[2] The Plaintiff was involved in a motor vehicle accident on August 28, 2012. The statement of claim was issued on September 3, 2013, and a statement of defence was filed on January 9, 2014. Discoveries were completed in August 2014, and the trial record was filed on August 24, 2015. A pre-trial was conducted on October 12, 2016. The trial was not reached during the November 2016 sittings and was adjourned to the May 2017 sittings. A jury was picked in May 2017, but the trial did not proceed as defence counsel was again involved in another trial. This matter was placed on a cancellation list, to be called on one week’s notice in the event the Court had trial availability.
[3] Plaintiff’s counsel served various medical reports on defence counsel as follows:
a) February 2014, Doctor Brandys, neuropsychologist;
b) August 2014, Doctor Rockman, psychologist;
c) February 2015, Doctor Rockman, psychologist;
d) August 2015, Doctor Zakzanis, neuropsychologist;
e) September 2015, Doctor Braganza, neuropsychologist;
f) April 2016, Doctor Miller, psych vocational assessment; and
g) July 2016, Doctor Wolkoff, psychiatrist.
[4] Between October 2016 and February 2017, the Plaintiff was admitted and treated at the Centre for Addiction and Mental Health (CAMH). Records from the Plaintiff’s attendance at CAMH were provided to defence counsel on May 16, 2017. The Plaintiff’s motion is dated June 21, 2017 and was originally to have been heard on July 21, 2017, but the matter was adjourned by Lavine J. At the time that the motion was to be heard before Lavine J., an appointment had been pre-booked with Doctor Ross for July 25, 2017, anticipating an order would have been granted. I am advised by defence counsel that a further appointment has been scheduled with Doctor Ross to take place in late September 2017.
Position of the Defence
[5] Mr. Lee argues that as a matter of trial fairness the defence should be entitled to a defence medical with Doctor Ross, who is a psychiatrist, so that the Defendants are on a level playing field responding to the various Plaintiffs’ reports that address the Plaintiff’s psychological and psychiatric conditions. While Mr. Lee candidly acknowledges that the various reports provided by Plaintiff’s counsel, referred to in paragraph three above, at least in part address the Plaintiff’s mental condition, the fact that the Plaintiff has been seen at CAMH in the time period October 2016 through February 2017 demonstrates a material change in circumstance from when this matter was last before the Court in November 2016.
Position of the Plaintiff
[6] Plaintiff’s counsel, in my view quite properly, refers to all of the various reports that have been provided to defence counsel that have addressed the Plaintiff’s mental condition. The defence, despite these various reports, chose not to request a defence medical with a psychiatrist. There is potential prejudice to the Plaintiff if the order sought was allowed, in that it could potentially impact on the timing of the trial.
Analysis
[7] In a personal injury action a Defendant is entitled to a medical examination of the Plaintiff. The Courts of Justice Act, s. 105(2), provides that where a Plaintiff’s physical or mental condition is at issue the Court may order the Plaintiff to undergo a physical or mental examination by a health practitioner. In a situation where the Plaintiff has already submitted to a defence medical examination, the Defendant can seek a further assessment as provided for under s. 105(4) of the Courts of Justice Act and Rule 33.02(2) of the Rules of Civil Procedure.
[8] There is no absolute right to a second defence medical examination. As Perell J. in Fromm v. Rajani, 2009 CanLII 46176 (ONSC) at para. 9 noted, the ordering of a second or further physical examination of a Plaintiff is a matter of discretion “that is not granted as a matter of course, and on motion, the Defendant must present sufficient evidence to persuade the Court as to the necessity for a further physical examination”. In refusing the Defendant’s request for a further medical assessment of the Plaintiff Perell J., in Fromm, noted that the Defendants had known of the Plaintiff’s medical health from the outset of the action, and that the “recent disclosure of information” was more a continuation of what had already been known by the defence for some considerable period of time and therefore was not an unexpected in complaint, symptoms or circumstances.
[9] A helpful summary of the principles that the Court should consider when ordering a further medical assessment of the Plaintiff is found in a decision of D.M. Brown J. (as he then was), in Bonello v. Taylor, 2010 ONSC 5723, at para. 16. Amongst the principles the Court may wish to consider is whether the moving party can demonstrate that the assessment is warranted and legitimate, and not made with a view to delaying the trial and causing prejudice to the Plaintiff. In considering a request for a second defence medical, amongst the principles found in Bonello is whether there is evidence that the Plaintiff’s condition has changed or deteriorated since the date of a previous examination. Another consideration in determining the merits of a further defence medical is whether it would impose an undue burden on the Plaintiff given the number of prior examinations conducted by the defence.
[10] This is not a case, in my view, where the Court should simply allow the defence a further defence medical examination with a psychiatrist so that there is a “level playing field”, in the sense that if the Plaintiff calls a psychiatrist then the defence should be entitled to an assessment by a defence psychiatrist. While trial fairness may ultimately dictate that in many personal injury actions there should be a “matching” of experts so that there is trial fairness, I do not decide this motion on that basis. Rather, my decision is ultimately determined by the question of whether or not the Plaintiff will be prejudiced in any way as a result of the order sought and, secondly, whether there has in fact been a material change in circumstance since the delivery of the various reports referenced in paragraph three above.
[11] The various medical assessments, reflected in the reports referred to in paragraph three above, were all assessments prepared either for the purposes of this litigation or, alternatively, in the context of the Plaintiff’s claim with his accident benefit insurer. From my review of the various reports, none of them are prepared by a treating psychiatrist or psychologist. I also note in the report of Doctor Salmon, prepared for Plaintiff’s counsel in April 2015, that the Plaintiff provided the following medical history: “Mr. Amorim reports an unremarkable prior medical history. Previous psychiatric history is unremarkable”.
[12] There is no question from a review of the various reports referred to in paragraph three above that anyone reading these reports could, or should have known, that the Plaintiff’s claim in this action would have as a significant factor his presenting psychological and psychiatric conditions. What is, however, evident from these reports, is that the Plaintiff has had little in the way of actual treatment in relation to his various psychological and psychiatric issues. I do note, however, in the neuropsychologist’s report of Doctor Brandys dated August 2013, that there is reference to the Plaintiff having been seen by Doctor Rockman, a psychologist who apparently had seen the Plaintiff in “eight sessions of physiotherapy and a psychologist twice”.
[13] In my view, there has been a significant change in the Plaintiff’s circumstances as a result of his treatment at CAMH in the latter part of 2016, which continued through at least until February 23, 2017.
[14] As D.M. Brown J. noted in Bonello, the Court can consider a defence request for a further or second defence medical as legitimate, where there is evidence that the Plaintiff’s condition has changed or deteriorated since the date of a previous examination. In that regard, I am satisfied that the CAMH records demonstrate a change in the Plaintiff’s circumstances, and that such change is a material change in circumstances warranting a further defence medical with a psychiatrist. In the consultation note of Doctor Nazanin dated February 23, 2017, found in the CAMH clinical notes and records, Doctor Nazanin provides a diagnosis to the Plaintiff’s family physician of:
Major depressive disorder, recurrent episode, Moderate 296.32 (F 33.1)
Generalized anxiety disorder 300.2 (F 41.1)
[15] I note from the Plaintiff’s factum at paragraphs 21 through 26, that the various psychological and psychiatric disorders that are reviewed by various assessors do not appear to reflect a diagnosis of major depressive disorder, as reflected in Doctor Nazanin’s progress note of February 23, 2017.
[16] I also note that the various psychological and psychiatric reports found in the motion record do not refer to the Plaintiff’s past psychiatric history. In fact, as previously noted in the report of Doctor Salmon dated April 24, 2015, the Plaintiff appears to have given a history that he had no prior psychiatric history of relevance. In Doctor Nazanin’s consultation report of November 28, 2016, found in the CAMH records, the Plaintiff appears to have given a past psychiatric history indicating that he was diagnosed with depression and anxiety 13 years ago, which was treated with Paxil and Cipralex.
[17] The extent to which the Plaintiff’s prior psychiatric history is relevant will be an issue that the jury may have to deal with. The CAMH records, in my view, are such that the defence should be entitled to a defence medical assessment. In ordering that the Plaintiff attend before Doctor Ross, I also take account of any potential prejudice to the Plaintiff. If in fact this case had been called for trial, or if there was any real prospect that this case could be called for trial prior to an assessment, in my view the Defendants’ delay in seeking a defence medical with a psychiatrist would be a relevant factor for this Court to take into account in not ordering such an assessment. There is no question from my review of the various medical reports already served by Plaintiff’s counsel on the defence, that the question of the Plaintiff’s psychological and psychiatric condition was such that the defence would reasonably have anticipated the necessity for a defence medical with a psychiatrist.
[18] In my view there is little to no prospect that this case, in fact, would be called for trial prior to the end of September 2017. While this case is on a cancellation list where it could be called for trial on one week’s notice, knowing the state of the various trial lists in Central East there is little prospect that this case would in fact be called for trial prior to the end of September. The reality is that this case may be called for trial during the November 2017 sittings. I am therefore ordering that the Plaintiff attend a defence medical assessment with Doctor Ross, to take place no later than the end of September 2017, and that Doctor Ross is to provide his report to defence counsel within one week from the date of that assessment. Defence counsel must forthwith, upon receipt of Doctor Ross’ report, supply a copy to Plaintiff’s counsel. Plaintiff’s counsel shall be entitled to deliver any reply report to Doctor Ross’ report no later than seven days prior to trial.
[19] As to the question of costs, in my view the defence has sought an indulgence from this Court in a situation where the defence could have sought a second defence medical assessment in a much more timely fashion. The Defendants’ were ultimately successful in obtaining the indulgence of the Court, and I am therefore exercising my discretion and ordering that the costs shall be fixed in the amount of $5,000 payable to the Defendants in the cause.
Justice M.L. Edwards
Date: August 30, 2017
CORRIGENDA
Paragraph [4]: “…pre-booked with Dr. Miller…” has been changed to “…pre-booked with Doctor Ross…”
Paragraph [17]: “…before Doctor Mills…” has been changed to “…before Doctor Ross…”
Paragraph [18]: All references to “Doctor Mills” have been changed to “Doctor Ross”.