Court File and Parties

COURT FILE NO.: CV-12-452889

MOTION HEARD: 20180307

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lourdes Prabaharan, Plaintiff

AND:

RBC General Insurance Company, Defendant

BEFORE: Master Jolley

COUNSEL: Sam Sandhu, Counsel for the Moving Party Defendant M. Katzman, Counsel for the Responding Party Plaintiff

HEARD: 7 March 2018

REASONS FOR DECISION

[1] This is a 2012 action. There is now a three week trial set to commence the sittings of 4 June 2018.

[2] The defendant brings this motion on an urgent basis today for an order compelling the plaintiff to attend two independent defence medical examinations (“IME”), one next week and one the week following. I note that when the defendant learned in January that it would not be able to schedule a motion before April, it decided that it would bring this matter on an urgent basis not in January or February but today, knowing it would need a decision of the court in less than three days from the motion being argued.

[3] The defendant argues that the IMEs are only now being requested because it was not until 31 October 2017 that the plaintiff served her own expert report from Dr. Kumbhare, a practitioner in the field of physical medicine and rehabilitation, to which the defendant now needs to respond. It wishes to prepare responding expert reports under Rule 53.03(2) and argues that the IMEs are needed for that purpose. It argues that it would not or may not have sought to have the plaintiff attend the IMEs, even in the face of the voluminous medical evidence it has concerning the plaintiff, had the plaintiff not served an expert’s report herself and had that expert’s report not addressed the threshold issues under Bill 198, i.e. whether the plaintiff suffers from a permanent serious impairment of an important physical, mental or psychological function, or provided a report that meets the criteria set out in section 4.3 of Bill 198.

[4] On a review of the materials, it is apparent that it was not the report of Dr. Kumbhare that put the plaintiff’s threshold impairment in issue. The plaintiff has served medical reports for many years that put the defendant on notice of her physical and psychological complaints. By way of example only, the defendant had five reports from Dr. Joseph Wong, a physiatrist, the first one as early as 2012. His first report outlines the medical complaints of the plaintiff as well as her psychological complaints. He concluded that she suffered from a number of physical injuries and impairments including psychological problems and opined on their impact on her employment, normal life activities and social and recreational activities. He concluded “I believe that these injuries are permanent in nature and the chance for any substantial improvement in the future is poor”. Dr. Wong noted that the chance for the plaintiff “to return to work in the future is guarded” and that she “continues to suffer a substantial inability to perform her pre-accident sports and recreational activities as a result of her motor vehicle accident injuries. He concluded that “the combination of the physical and psychological problems will continue to affect [the plaintiff’s] ability to function in the future, her relationship with her friends and family in the future, her general health and well-being.” He was of the view her injuries were serious and important to her and that she was totally disabled from returning to any work at that time due to her ongoing injuries and chronic pain syndrome.

[5] In his last report dated 8 April 2015, which the defendant received, Dr. Wong opined “I believe that Ms. Prabaharan has sustained a serious and permanent impairment of an important physical function as a result of the motor vehicle accident.”

[6] The defendant has also had three reports over the period 2014 to 2017 from a functional assessor, all of which concluded that the plaintiff’s functional capacities did not meet the essential physical demands of Sedentary Work, that she would not be able to perform any work in any capacity and could not meet the physical demands of the majority of her housekeeping maintenance tasks.

[7] As to the plaintiff’s psychological state, the plaintiff has not obtained an expert report from a psychologist. However, based on the information from the plaintiff’s various physicians, the defendant has known since June 2014 that the plaintiff saw a psychologist once every two weeks for depression and that continued through to October 2017 with appointments then once every three weeks. It has also had the May 2013 report of Dr. Evans, a psychiatrist, who opined that the plaintiff’s “condition is serious and permanent.”

[8] Lastly, the defendants has had multiple reports from Dr. Tory Hoff, a psychologist, starting in July 2014 through to 2017 which conclude that the plaintiff’s “accident-induced psychological condition is chronic and long term”.

[9] Absent the expert report of Dr. Kumbhare, I would not entertain the defendant’s request at all, as the Kumbhare report did not contain new or unexpected information and was not the only medical report that opined on the plaintiff meeting the threshold impairment test.

[10] However, Dr. Kumbhare is in a different category as he is not a treating physician but an expert. I do accept the defendant’s argument that he may be viewed differently by a jury and there may be prejudice if the defendant goes to trial without an expert of its own.

[11] The pre-trial conference was held on 10 January 2018. The plaintiff’s expert report was due 90 days before that date, or 12 October 2017. She served the report of Dr. Kumbhare’s on 31 October 2017.

[12] The defendant had until 60 days before the pre-trial or 13 November 2017 to deliver a responding expert’s report. It would have been reasonable for the defendant to request an extension, given the plaintiff’s 19 day delay. However, the defendant did not request an extension. It did nothing until five days before the pre-trial when it raised the issue of an IME.

[13] There is no consistent explanation as to why the defendant waited 2 ½ months to raise the IME. It indicated before me that, upon receipt of Dr. Kumbhare’s report, it intended to obtain a responding expert’s report. It indicated to the pre-trial judge that it did not even have instructions to proceed with IMEs until one week before the pre-trial conference.

[14] The defendant argues that it will be prejudiced if it is required to proceed to trial without an expert’s report. While much of that prejudice is of the defendant’s own making in rolling the dice to see if the plaintiff would obtain an expert’s report, having received an expert’s report from the plaintiff, the defendant does have a right, or did have a right, had it been served in time, to serve a responding expert’s report.

[15] The defendant requests that the plaintiff attend a psychological medical examination with Dr. Young on 13 March 2018 and a physiatry examination with Dr. Cheng on 23 March 2018, both to respond to the report of Dr. Kumbhare.

[16] Dealing with the physiatry IME first, Dr. Kumbhare states in his report that as a result of the accident the plaintiff has developed chronic pain syndrome resulting in post-traumatic headaches, chronic right shoulder pain, chronic low back pain and client-reported mood/emotional distress. He opines that the injuries that the plaintiff sustained in the accident represent a permanent and serious impairment of important physical functions. They have resulted in chronic pain and reduced functional tolerances and have not resolved despite attempts at treatment.

[17] I exercise my discretion to permit the defendant to have Dr. Cheng conduct an IME of the plaintiff to address these issues raised in Dr. Kumbhare’s report. The issue then becomes whether Dr. Cheng’s examination will take the form of a paper review or an in person attendance. I would not have hesitated to order a paper review had there been evidence of prejudice to the plaintiff as a result of an in person examination being ordered. However, on the record there is an insignificant difference in the time in which an in person report and a paper review report can be delivered at this stage. I am advised that the background medical information has already been sent to Dr. Cheng so that not much delay will be caused in the production of the report by having the plaintiff attend on 23 March 2018. The earliest a paper report would be received would be approximately that date. Weighing a further delay of two weeks or so for Dr. Cheng to see the plaintiff in person and complete his report rather than conduct a paper review against the potential unfairness of having him testify without having seen the plaintiff, I find that an in person assessment is warranted.

[18] I order the plaintiff to attend at that physiatry IME with Dr. Cheng on 23 March 2018. I order the report of Dr. Cheng to be produced to the plaintiff no later than 6 April 2018. This should give the plaintiff sufficient time to obtain a reply report from either Dr. Kumbhare or another doctor of her choosing. I leave the admissibility of Dr. Cheng’s report to the discretion of the trial judge who can best determine whether there is prejudice to the plaintiff in its late delivery.

[19] However, I am not prepared to order the plaintiff to attend a psychological IME with Dr. Young. The plaintiff has not obtained an expert’s psychological report and the right of a responding report does not arise. What the defendant is really requesting is not a responding report under Rule 53.03(2) but the ability to serve an expert’s report under Rule 53.03(1). Were this granted, the plaintiff would then be left with only a few weeks to retain an expert to prepare a responding report under Rule 53.03(2). As noted above, the plaintiff’s psychological complaints arising from the accident have been known to the defendant since 2012. To request a Rule 33.02 examination on the eve of trial in these circumstances is not acceptable. I find, as did Master Muir in Nguyen v. Kojo 2017 ONSC 2014 that delay and resulting prejudice to the plaintiff is a basis for refusing such relief. In Nguyen, the action has been pending for more than seven years and the insurer had never made a request for a defence medical examination. Further, when the plaintiff served a series of additional medical reports in December 2016, the insurer still did not immediately request a defence medical despite the fact that a pre-trial was initially scheduled for March 2017 and the trial set for May 2017. The request for an IME on the eve of trial was denied, with the court stating:

In my view, there is a real risk that the plaintiff will be unable to respond before the scheduled trial date. The plaintiff will be prejudiced either by going to trial without a response or having his long pending day in court pushed further down the road.

[20] A similar request was made and denied in Paranitharan v. Alex Irvine Motors Ltd. 2011 ONSC 3014. The defendants brought their motion for the order that the plaintiff attend an orthopaedic examination after the plaintiff had set the action down for trial, as is also the case here, but more than four months before the pre-trial conference and eight months before the trial date. The court held that Rule 48.04(1) prohibited a party in the position of the defendants from initiating any form of discovery without leave of the court. The court held that leave should only be granted “where there has been a substantial or unexpected change in circumstances”. The court found that the defendants needed leave because they had agreed to the trial date and were aware of the medical issues raised by the plaintiff when they consented to the action being set down for trial. The court found that there was no evidence as to why the requested examination was now necessary when no request was made for such an examination prior to the action being placed on the trial list. The court also noted that there was no medical/legal report from an orthopaedic expert to which the defendants needed to respond.

[21] I find similarly here that the defendant requires leave of the court to bring this motion, given it attended in trial scheduling court and agreed to the pre-trial and trial dates that were set. If there was a time to indicate that the defendant was reserving its right to an IME, that was the time to do so.

[22] With respect to the request for an IME with Dr. Young, I find there is no substantial or unexpected change that would warrant granting leave to permit that examination. I do find that Dr. Kumbhare’s expert report served in October 2017 does constitute a substantial change that warrants the physiatry IME with Dr. Cheng in order for the defendant to respond.

[23] Each party sought costs of the motion. As expressed at the outset, a party should be discouraged from bringing these emergency motions at the very last minute when it knew of the “emergency” some months ago and still determined to attend in court today and require a decision in two days. If it was an “emergency” the prudent course would have been to bring the motion in January or February when the emergency was realized, so that the court would have had the opportunity to fully review the materials and render its decision.

[24] There has been divided success on the motion. However, I find it was necessary for the plaintiff to put substantial materials and case law before the court to ensure this decision was made on a full record. In light of the work done by the plaintiff for this motion, her success on the IME requested with Dr. Young and the fact that the court’s exercise of its discretion will likely cause the plaintiff to incur the costs of preparing a reply report to respond to the report of Dr. Cheng, I exercise my discretion to order the defendant to pay the plaintiff costs in the amount of $3,000.

Master Jolley

Date: 9 March 2018