Tan Duc Ngo v. Mario L. Neves, 2017 ONSC 6130

COURT FILE NO.: CV-14-120669-00

DATE: 2017-10-13

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tan Duc Ngo and Phouong Anh Tran, Plaintiffs

AND:

Mario L. Neves, FR Paving Co. Ltd., Ford Credit Canada Ltd., Cellino Contracting Limited, Jack R. Cox, 747871 Ontario Limited operating as Independent Glass 2000 and TD Home and Auto Insurance Company, Defendants

BEFORE: Justice J. Di Luca

COUNSEL: Richard Shekter, Counsel, for the Plaintiff/Responding Party, Tan Duc Ngo Jame Pedro, Counsel, for the Defendants/Moving Parties, Mario L. Neves, FR Paving Co. Ltd. and Ford Credit Canada Ltd.

HEARD: September 22, 2017

ENDORSEMENT

[1] The moving parties seek an order compelling the Plaintiff, Tan Duc Ngo, to participate in and complete defence medical examinations with Dr. Waisman, a psychiatrist, and Dr. Zakzanis, a neuropsychologist.

[2] They also seek an order varying the timetable set by McKelvey J. on November 8, 2016, as well as an order adjourning the pre-trial currently scheduled for October 17, 2017.

[3] The request for a medical examination with Dr. Waisman has been resolved on consent and I need not address it further.

[4] In terms of the pre-trial scheduled for October 17, 2017, I agree that it needs to be adjourned. The Plaintiff has recently filed additional reports, including a neuropsychiatry report from Dr. Snaiderman, an Income Loss Report and a Life Care Plan. These reports were filed well outside the timelines set by McKelvey J. and the Defendants need time to review the reports and respond in order to be properly prepared. That said, I agree with the Plaintiff that there is a need to keep this matter "on the rails" so that it is not unfairly delayed. In this regard, while I am prepared to adjourn the pre-trial, I order that the parties communicate with Regional Senior Justice Fuerst to have this matter assigned to a case management judge. The timetable set by McKelvey J. can be re-visited before the case management judge once one is assigned.

[5] I turn next to the central issue in this motion, which is whether Mr. Ngo should be ordered to participate in and complete a medical examination with a neuropsychologist. In addressing this issue the parties have filed voluminous motion records, detailed facta and supporting casebooks. The parties supplemented the written material with focussed and helpful oral submissions.

[6] This case is a close call. However, for the reasons set out below, I am not prepared to order that Mr. Ngo participate in and complete the proposed neuropsychological assessment. On the basis of the evidence before me, I find that given Mr. Ngo's limitations and the documented risk of self-harm, further neuropsychological testing will likely be futile and will unnecessarily place Mr. Ngo's health at risk.

Nature of Action

[7] By way of overview, this is an action stemming from a motor vehicle collision that took place on October 11, 2013. It is alleged that Mr. Ngo suffered significant and permanent injuries in the collision, including depression, nausea, headaches, dizziness, poor balance, difficulty concentrating, low tolerance for noise and light and difficulty with language. Mr. Ngo has not been able to return to work since the accident. He is receiving long-term disability benefits, income replacement benefits and Canada Pension Plan disability benefits. His accident benefits carrier has determined that Mr. Ngo has suffered "catastrophic impairment".

[8] Mr. Ngo is seeking $2,000,000 in damages. The nature and extent of his injuries will be the subject of significant evidence and disagreement between the parties.

[9] Mr. Ngo has been seen by a plethora of medical professionals, all of whom have provided various reports, medical notes and related file material in support of this litigation and in support of his treatment. These medical professionals include:

a. St. Michael's Hospital Head Injury Clinic, under the care of Dr. Bhalerao, a neuropsychiatrist, and other physicians at the clinic;

b. Dr. V. Kekosz, a physiatrist;

c. Dr. P. Miller, a rehabilitation psychologist;

d. Omega Medical Associates, who conducted catastrophic impairment evaluation;

e. Dr. G. Braganza, a psychologist and neuropsychologist;

f. Dr. N. Browne, a psychologist;

g. Dr. V. Tran, a family physician;

h. Dr. H. Rockman, a psychologist;

i. Dr. Snaiderman, a neuropsychiatrist;

j. Dr. Z. Lacroix, an optometrist;

k. Donna Crowther, a physiotherapist;

l. Tenley Kelly, an occupational therapist;

m. J. Heida, a social worker; and,

n. H. Rockman, a psychologist.

[10] At the request of the Defendants, Mr. Ngo was also seen Dr. M. Kleinman, a physiatrist, and Dr. Waisman, a psychiatrist.

[11] Of particular note in relation to the issue on this motion, Mr. Ngo has not attended and completed a neuropsychological assessment with a medical professional of his choice. He has, however, at the request of the defence, attended for a neuropsychological assessment with Dr. Zakzanis. Despite the repeated attendances, Dr. Zakzanis has been unable to complete a proper neurological assessment and report.

The Proposed Neuropsychological Assessment

[12] The issue before me is whether I should order Mr. Ngo to continue to attend and complete the neuropsychological assessment with Dr. Zakzanis. Both parties agree with the legal framework that governs this issue. Section 105(2) of the Courts of Justice Act and Rule 33.02 of the Rules of Civil Procedure provide authority for the Court to order that a party undergo a physical or mental examination by one or more health practitioners. The onus is on the party seeking the examination, who must demonstrate that the proposed medical examination is warranted on the facts of the case. In this regard, the Court acts as a gatekeeper and must assess whether proposed medical examinations are required in order to ensure a fair trial with a "level playing field", see Bellamy v. Johnson (1992), 1992 CanLII 7491 (ON CA), 8 O.R. (3d) 591 (Ont. C.A.), Chapell v. Marshall Estate, [2001] O.J. No. 3009 (S.C.J.), Jones v. Spencer, 2005 CanLII 13034 (ONSC), Bonello v. Taylor, 2010 ONSC 5723, [2010] O.J. No. 4432 (S.C.J.) and Nelson v. Thiruchelvam, 2005 CanLII 4849 (ON SC), 2005 CarswellOnt 739 (S.C.J.).

[13] Both parties also agree that in the ordinary course the facts of this case, combined with the nature of the damages claim, would warrant a neuropsychological assessment by both parties.

[14] While the Plaintiff agrees that neuropsychological testing would otherwise be warranted, he argues that the circumstances of this case are such that it should not be ordered. That said, and perhaps in recognition of the "level playing field" principle, the Plaintiff is prepared to undertake not to obtain his own neuropsychological assessment. The Plaintiff's position is that Mr. Ngo's limitations and precarious mental health render the continuation of the assessment both fruitless and potentially dangerous. The Plaintiff argues that Mr. Ngo is unable to perform the required neuropsychological testing required in order to complete the assessment. They further argue that Mr. Ngo presents with an identified and repeated risk of self-harm that is magnified by the prolonged and intrusive nature of the proposed testing.

[15] The Defendants' position is that as a matter of fairness, a complete neuropsychological assessment is required in order to assess the true extent of Mr. Ngo's injuries. Mr. Ngo's limitations can be accommodated by breaking up the remaining testing into multiple short duration sessions, accompanied by travel and accommodation provisions aimed at lessening the associated stresses. The Defendants also argue that the concerns regarding self-harm are overstated and do not amount to sufficient cause for declining the requested order. When viewed in context the proposed testing may cause stress and inconvenience, but that alone is not sufficient to deprive the Defendants of the opportunity to obtain the required assessment: see Seto v. 2041098 Ontario Ltd., [2013] O.J. No. 380 (S.C.J.). Lastly, the Defendants argue that while the Plaintiff has not commissioned a neuropsychological assessment, he has successfully participated in many medical examinations and assessments. The Defendant notes that many of the doctors involved agree that neuropsychological testing is required. As well, the Defendants note that there is no automatic principle of "practitioner parity". In other words, the mere fact that the Plaintiff has not commissioned a neuropsychological assessment does not act as a bar to the Court ordering one at the behest of the Defendants: see Emam v. Sunnybrook Health Sciences Centre, [2016] O.J. No. 6051.

[16] I turn next to the evidence before me. As mentioned, Mr. Ngo has attended for a neuropsychological assessment with Dr. Zakzanis on three occasions. On December 13, 2016, Mr. Ngo attended for an assessment that was scheduled to run from 9:00 a.m. until 5:00 p.m. The assessment was terminated at 11:15 a.m. as Mr. Ngo was unable to continue. On January 6, 2017, Mr. Ngo attended for an assessment at 11:15 a.m. It was terminated at 12:45 p.m. as Mr. Ngo reported fatigue and headaches. Lastly, on January 25, 2017, Mr. Ngo attended at 1:00 p.m. but terminated the assessment at 3:15 p.m., again experiencing headaches and fatigue. He was slow in his responses and took several breaks before terminating the assessment.

[17] Dr. Zakzanis could not complete a report as he was unable to complete his examination and the required testing. Dr. Zakzanis indicates that a complete neuropsychological assessment with the assistance of an interpreter can take between six and nine hours of time. He estimates that a further four to five hours would be required to complete the assessment of Mr. Ngo. Mr. Ngo was unable to complete the required testing because of complaints of fatigue, double vision and headaches. The reporting letter of Dr. Zakzanis notes that on two occasions Mr. Ngo did not even remove his coat and hat, and further when offered the opportunity to avail himself of a resting room for a break in the testing, Mr. Ngo declined. That said, Dr. Zakzanis does not suggest that Mr. Ngo is malingering or intentionally attempting to defeat the testing process.

[18] Mr. Ngo has also experienced difficulties in other areas of testing. He attended a Functional Abilities Evaluation at the request of his long term disability carrier on June 9 and 10, 2014. On each day, the assessment was terminated early due to headache, fatigue and a lack of patience. On June 24 and 25, 2014, Mr. Ngo attended for a Cognitive Abilities Evaluation, again at the behest of his long term disability carrier. He was unable to complete the majority of the planned standardized and cognitive skills activities reporting headaches, nausea and dizziness.

[19] In a report dated April 5, 2016, Dr. Braganza addressed a cognitive screen administered as part of a catastrophic impairment assessment and noted that Mr. Ngo did not perform well on testing. Mr. Ngo reported that he was experiencing a severe headache and it was difficult for him to concentrate. Similarly, when Mr. Ngo attended before Dr. Watson for a neurocognitive assessment for the accident benefits carrier, it was noted that Mr. Ngo was only able to complete 3.75 hours of the assessment, which included just over one hour of cognitive testing. Mr. Ngo reported that he could not continue due to a headache.

[20] When Mr. Ngo was assessed by Dr. Miller, a rehabilitation psychologist, on January 13, 2016, the testing was broken up over two days and followed up with two telephone calls. Dr. Miller noted that Mr. Ngo had difficulty engaging in the testing process and worked slowly. In a follow-up letter dated July 7, 2017, Dr. Miller opines that based on his history of difficulty with testing, any further testing would likely be a fruitless endeavour. A similar letter provided by Dr. Bhalerao also opines that further testing would not be warranted as it will cause psychological difficulties for Mr. Ngo.

[21] Lastly, during the first day of Mr. Ngo's examination for discovery he had difficulties with headaches and required a break. After a lunch break he was found in his car visibly uncomfortable, fatigued and in pain. He was unable to complete his examination. It appears that on the second day of the examination for discovery, Mr. Ngo did not ask for a break in the proceedings and managed to complete his questioning.

[22] I also note that a number of medical professionals have opined that Mr. Ngo presents with a risk of self-harm. He has on a number of occasions expressed suicidal ideation, though at other times he has denied any intention to harm himself. The opinions of the various medical professionals vary from noting that Mr. Ngo is not "acutely suicidal", to noting that "Mr. Ngo will be at high risk for self-harm and should not be forced to undergo further assessments..."

[23] After the attempts at testing with Dr. Zakzanis, Mr. Ngo expressed suicidal thoughts relating to the intensity and length of the testing. While he later recanted or modified these statements, it is clear that the testing and assessment impacts him both physically and psychologically.

[24] I accept that there is variability amongst the medical practitioners regarding the degree of risk of self-harm. I am nonetheless satisfied that there is a risk of self-harm if Mr. Ngo were to be compelled to continue the testing.

[25] Based on this evidence, I find that Mr. Ngo's current medical condition renders him essentially incapable of completing the proposed neuropsychological testing. I accept that Mr. Ngo has legitimately attempted to participate in and complete the sought after assessment but has failed. I do not find that he is malingering or feigning. I also find that there is a risk of self-harm.

[26] In making this finding, I am cognizant that Mr. Ngo has successfully completed a number of other assessments, including a neuropsychiatric assessment with Dr. Snaiderman which included modest testing as disclosed in his report. He also completed a neuropsychological assessment with Dr. Braganza as part of his catastrophic assessment. However, this assessment did not involve a full neuropsychological assessment as is now being sought by the Defendants. Rather, it was only a cognitive screen, which is not nearly as intense or as lengthy as a full neuropsychological assessment.

[27] I also understand that a number of these assessments have required that Mr. Ngo travel long distances and endure lengthy interviews and assessments. However, the sought after neuropsychological assessment involves cognitive tests of an intensity and duration beyond any of the testing that has been conducted to date, including the cognitive screen done by Dr. Braganza.

[28] I am also cognizant of the fact that the Defendants have offered, and continue to offer, any necessary accommodations to ease the impact of the testing. These accommodations include using hotel rooms and neutral meeting spaces near Mr. Ngo's home, breaking up the sessions into shorter sessions, providing transportation and providing frequent rest breaks. In many cases, these types of accommodations would be sufficient to alleviate any concerns regarding the impact of the testing: see Biehn v. Rayle, [2015] O.J. No. 3007 (S.C.J.). In this case, in view of the fact that several accommodations have already be attempted without success, I am not satisfied that further accommodations will make the testing tolerable. Unfortunately, it appears that the testing is simply too onerous and risky for Mr. Ngo.

[29] While I am not persuaded that I should order the completion of the neuropsychological assessment at this time, it may well be that Mr. Ngo's condition improves over time and he is able to complete the testing at a later date. As such, I am prepared to dismiss the motion without prejudice to the Defendants raising the issue again on the basis of further evidence relating to Mr. Ngo's ability to successfully complete the assessment without an undue risk of self-harm. As well, I rely on the Plaintiff's undertaking to not seek a neuropsychological assessment in support of my conclusion. This undertaking provides some relief from the potential unfairness that might otherwise arise.

Costs

[30] The Plaintiff seeks costs of $23,039.44 on a partial indemnity basis. In argument, the Plaintiff noted that the costs are high but were necessary to address the large volume of material that was placed before the Court by the Defendants. The Plaintiff argues that it is unfair for the Defendants to file such voluminous materials and then complain that the costs sought for properly responding are high.

[31] The Defendants submitted a costs outline seeking $10,205.35 on a partial indemnity basis. In oral submissions the Defendants argued that costs should be $7,500 all-inclusive, payable to the successful party.

[32] I agree with the Plaintiffs that the motion as framed by the Defendants required a significant degree of preparation. The materials filed were detailed and voluminous. The issue was contentious and the decision was a close call. It would have been reasonably expected by both parties that the costs relating to this motion would be significant.

[33] That said, costs orders must nonetheless be guided by reasonableness and proportionality. When I consider all the various factor that guide costs decisions, I find that a reasonable and proportionate amount for costs is $12,500 all-inclusive and payable to the Plaintiff.

Justice J. Di Luca

Date: October 13, 2017