Court File and Parties

CITATION: Henebry v. Her Majesty the Queen, 2017 ONSC 7338

COURT FILE NO.: 11-5697

DATE: 2017/12/08

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jesse Henebry, Marcia Bryson, Zackariah Henebry, Michael Antonucci and Sharon Antonucci, Plaintiffs

AND:

Her Majesty the Queen in right of Ontario (Attorney General), Mike Heber, John Doe and Jane Doe, Defendants

BEFORE: George J.

COUNSEL: K. Egan Counsel, for the Plaintiffs S. Pottle & A. Christian-Brown Counsel, for the Defendant Her Majesty the Queen

HEARD: November 29 and December 1, 2017

ENDORSEMENT

[1] As a remand prisoner, the plaintiff was held at the Elgin Middlesex Detention Center (“EMDC”) from November 17th to 20th, 2009. Unfortunately, and through error, he was assigned to a cell within the same unit as inmate Mike Heber (“Heber”), who was at the time prohibited from associating or communicating with the plaintiff. Heber had outstanding charges that alleged he broke into the plaintiff’s home and assaulted him.

[2] Unsurprisingly this did not go well. Heber, assisted by other unnamed inmates, assaulted the plaintiff causing injury. In light of this unit and cell placement, which should not have occurred, the Crown has made a partial admission of liability.

[3] The plaintiff seeks damages. The Crown has filed a statement of defence and defends itself at trial. Mr. Heber has not filed a defence and is not participating.

[4] We are in the middle of trial. The plaintiff has closed his case and the Crown is currently presenting its defence.

[5] Beyond cell placement, the plaintiff hopes to ground liability in other EMDC staff conduct and decisions (which the Crown disputes), but this trial’s most hotly contested issue relates to damages. The plaintiff has tendered testimony from experts who have spoken to this issue. The Crown intends to do likewise and, as I understand it, will ultimately take the position that the plaintiff has malingered and not suffered extensive losses.

[6] The Crown had retained Vocational Rehabilitation Specialist Elaine Sandor, an employee of Rehabilitation Management Inc. This was not court-ordered as the plaintiff consented. On January 25, 2017, Ms. Sandor met with the plaintiff for the purposes of conducting this assessment. She deposes that she was instructed by the Crown to conduct her assessment independent of any collaboration with Life Care Planner Barbara Baptiste, a colleague at Rehabilitation Management, Inc., who was also working on this file. The Crown does intend on calling Ms. Baptiste as a witness, who I am told will present her assessment of future care needs and costs.

[7] Ms. Sandor maintains that she did not communicate or share with Ms. Baptiste any information regarding her assessment. Ms. Baptiste, who has prepared and filed a report, confirms that she conducted her work independent of Ms. Sandor and communicated with her on only two occasions, and never to discuss the substance of their respective work with the plaintiff.

[8] In May 2017, upon receipt of Psychologist Dr. Curt West’s report, the Crown decided that Ms. Sandor’s services were no longer needed. She was advised not to prepare a report. Dr. West - whose testimony is ongoing and not yet complete - is anticipated to say the plaintiff suffers from no impairment that hinders his ability to pursue his vocation.

[9] On May 18, 2017, Crown counsel advised plaintiff counsel that a report from Ms. Sandor would not be forthcoming. There was no response.

[10] On June 30, 2017, a judicial pretrial was held at which time statements of issues, and witness lists, were exchanged (including experts). Ms. Sandor was not listed, with the plaintiff making no inquiry about her omission.

[11] On September 21, 2017, there was a further judicial pretrial, accompanied by another exchange of witness lists. Again, no mention of Ms. Sandor, and no objection by or inquiry from the plaintiff.

[12] On November 17, 2017 - many days into trial, and after the plaintiff’s case had closed - plaintiff counsel emailed the Crown requesting Ms. Sandor’s “report”. In response, the Crown reminded plaintiff counsel of its earlier position, which is there was no report to provide. The Crown has similarly declined to provide Ms. Sandor’s notes or the testing results.

[13] The plaintiff asks that I direct the Crown to comply with r. 33.06 of the Rules of Civil Procedure and produce Ms. Sandor’s report. In the alternative, in what the plaintiff describes as a compromise position, he asks for at least her notes and the results.

[14] Rule 33.06(1)(2) provides that:

(1) After conducting an examination, the examining health practitioner shall prepare a written report setting out his or her observations, the results of any tests made and his or her conclusions, diagnosis and prognosis and shall forthwith provide the report to the party who obtained the order.

(2) The party who obtained the order shall forthwith serve the report on every other party.

[15] The Crown contends that there has essentially been a waiver. The plaintiff disputes this, while at the same time providing no good explanation for why this wasn’t raised long before now and well in advance of trial.

[16] I pause here to say that, were this issue raised in advance of trial (perhaps even during trial so long as it was it brought to my attention before the plaintiff’s case closed), I would have immediately ordered the preparation and production of a report. While the rule is seemingly confined to ‘medical reports’, the jurisprudence, while limited, clearly places vocational assessments within its scope. This makes sense, and it’s likely I would have so concluded even if there were no prior judicial guidance.

[17] In McHardy v. Ball, 2013 ONSC 5610, on facts very similar to these, DiTomaso J. ordered the production of a vocational assessment, where the plaintiff had attended and participated in the assessment process at the defendant’s request. The defendant resisted production under this rule contending that vocational rehabilitation experts were not “…health practitioners within the meaning of s. 105 of the Courts of Justice Act” (CJA) and that r. 33 “is a function of section 105”; see para. 8.

[18] Section 105 of the CJA provides that a “health practitioner means a person licensed to practise medicine or dentistry in Ontario or any other jurisdiction, a member of the College of Psychologists of Ontario or a person certified or registered by another jurisdiction.”

[19] DiTomaso J. cited, with approval, Wright J.’s decision in Ontario (Attorney General) v. CEC Edwards Construction (1986), 57 O.R. (12d) (H.C.), and specifically this passage:

I am of the opinion that if an examination is ordered under s. 118 then the subsequent report must be disclosed to the parties in accordance with r. 33.06(1). An examining party cannot avoid the provisions of r. 33.06 on the ground that only the medical practitioner must prepare a report while taking advantage of a rule which ostensibly limits examinations to those conducted by medical practitioners.

[20] Plaintiff counsel wrote the Crown on November 15, 2017 indicating that “had we known you would take the view that you could decide to withhold the assessment findings from us, we would never have agreed to the assessment in the first place”. Of course this is true; why else would one make themself available and agree to engage in this exercise.

[21] The Crown relies upon two authorities, neither of which were helpful. In Conceicao Farms Inc. v. Zeneca Corp., 2006 CarswellOnt 5672, in an action concerning defective pesticide, the respondents retained an expert on the main issue, later resisting an attempt to have them disclose what I will call foundational documents respecting the expert’s opinion. I note only that this did not in any way involve a party submitting to a personal evaluation, which renders it distinguishable. Not much more need be said other than to draw the obvious distinction between documents that must be disclosed during the discovery process; those documents and that information protected by litigation privilege; and that which falls within the scope of r. 33.06. I am dealing squarely with the application of r. 33.06.

[22] It also referred to Nikolakakos v. Hoque, 2015 ONSC 4738, 2015 CarswellOnt 11281. This is not on point as the issue there was whether a party was required to disclose counsel’s letter of instruction to an assessor. Far different from the notes and results of the assessment itself.

[23] The question then is what impact does the timing of this request have on the clear direction in r. 33?

[24] Given the plaintiff has closed his case, this potentially impacts any attempt on his part to call Ms. Sandor in reply. I want to be careful so as to not foreclose any opportunity for him to persuade me otherwise, but it is difficult to see how he could now call Ms. Sandor as a reply witness. The ability to call reply evidence is not simply a question of what new matters arose during the defence case, but whether something was reasonably foreseeable. Furthermore, it’s not just a question of foreseeability, but, to state the obvious, we know already that the plaintiff hadn’t received Ms. Sandor’s report and has, for whatever reason, remained silent about it. This is important as if this issue were raised with me in a timely fashion, I would have provided the necessary directions, with the proper approach then being the plaintiff deciding, if he so wished, to call Ms. Sandor as a part of his case. This genie can’t be put back in the bottle. In other words, I don’t know what the plaintiff would have done had he received the report in advance of trial and its dangerous to speculate on that. The plaintiff’s oversight in not raising this either with the pretrial judge, or myself, cannot alone give rise to a right of reply.

[25] On the other hand, I don’t want to reward the Crown for failing to do what it should have done. The rule does require the production of a report with no obligation on the opposing party to specifically request it. It is also the case that, by rule, the Crown’s noncompliance can only be excused if the plaintiff had waived his right to receive the report within his original consent to cooperate with the assessment; see r. 33.08. There is no evidence to suggest that the plaintiff, at the time he consented to the assessment, waived his right to receive a report, or that he was amenable to the Crown making a later determination on this issue.

[26] In fairness, the Crown’s position is, in effect, that the right to receive a report has been waived by virtue of the timing of this request and the lack of objection to its previously disclosed pretrial witness lists. I do not agree. While the timing potentially impacts the ability of the plaintiff to call Ms. Sandor in reply – an issue I will have to address when and if it arises – and while it calls into question the value in compelling the preparation of a formal report at this late stage, the simple fact is the Crown must comply. And the fact it does not intend on calling Ms. Sandor as a witness has no bearing on the analysis; a view shared by DiTomaso J. in McHardy. The language of r. 33.06 is mandatory and requires the preparation and service of a written report.

[27] As indicated, given the plaintiff’s questionable right to call Ms. Sandor in reply, there is an argument to be made that there is no practical value in now ordering production, notwithstanding the rule. This does make the consideration somewhat different from that in McHardy. That said, in the absence of a waiver within the original consent, I am compelled to order production. What I am willing to do is modify the obligation, at the plaintiff’s suggestion, and limit my direction to Ms. Sandor’s notes and the testing results.

[28] For these reasons, I order the Crown to produce copies of Ms. Sandor’s notes and the testing results respecting her assessment of the plaintiff, forthwith. Should these materials not be in its possession, Ms. Sandor is directed to immediately provide them so that they can be disclosed.

Justice J. C. George

Date: December 8, 2017