Court File and Parties

Court File No.: CV-15-6199 Ontario Superior Court of Justice

Endorsement

Plaintiffs: ALYKHAN KANANI a person under a disability by his Litigation Guardian Gisele Kanani, Gisele Kanani, Litigation Administrator for the Estate of AZADALI KANANI, GISELE KANANI and SHAHEEDKHAN KANANI Counsel: Almeda Walbridge

Defendants: ECONOMICAL INSURANCE COMPANY, BRIAN CLIFFORD, TRACY BROSS, PEGGY KNOX, HELEN BAILEY, LINDA WATT, MARIE YEE, ACCLAIM DISABILITY MANAGEMENT INC., ANNE DESJARDINS, CATHY PRIOR, CATHY TAIT, THE PUBLIC GUARDIAN AND TRUSTEE, VANI SANTI, ELIZABETH PROBIZANSKI, ROXANNE MAYER VARCOSE, ANDREA WATSON, DAN SKWAROK, MURRAY MISKIN, and HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO AS REPRESENTED BY THE MINISTRY OF THE ATTORNEY GENERAL Counsel for the Defendants Economical Mutual Insurance Company, Brian Clifford, Tracy MacDonald (Bross), Peggy Knox, Helen Bailey, Linda Watts and Marie Yee: Evan Bawks

Heard: June 6, 2018

Endorsement

[1] The Moving Defendants have brought this Motion for an Order requiring that the Plaintiff attend a psychiatric assessment with Dr. William Gnam, pursuant to Rule 33 of the Rules of Civil Procedure and section 105 of the Courts of Justice Act.

[2] With respect to the medical examination of parties, Rule 33 provides as follows:

“MOTION FOR MEDICAL EXAMINATION

33.01 A motion by an adverse party for an order under section 105 of the Courts of Justice Act for the physical or mental examination of a party whose physical or mental condition is in question in a proceeding shall be made on notice to every other party.

ORDER FOR EXAMINATION Contents of Order

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.

Further Examinations

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

DISPUTE AS TO SCOPE OF EXAMINATION

33.03 The court may on motion determine any dispute relating to the scope of an examination.”

[3] Section 105 of the Courts of Justice Act includes the following:

“Physical or mental examination

Order

105 (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.

Further examinations

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

[4] For the reasons detailed in its Factum and as submitted during the hearing of this Motion, the Plaintiff contests this Motion and does not consent to attend at the psychiatric assessment with Dr. Gnam. Alternatively, it is the Plaintiff’s position that in the event a second psychiatric assessment is granted, it should be completed by Dr. Veluri.

[5] Since I was appointed Case Management Judge on October 13, 2017, I have presided over several teleconferences with Counsel, and further Motions may be required on July 20, 2018. A Pre-trial Conference is scheduled to occur on August 8 and 9, 2018. The subject matter of this Motion arose only in March, 2018, when Counsel for the Moving Defendants informed that a medical-legal defence assessment of the Plaintiff had been scheduled with Dr. Gnam.

[6] After the commencement of this litigation, one of the Moving Defendants, Economical Insurance Company (hereinafter referred to as Economical), arranged for a section 65 assessment of the Plaintiff by Dr. Veluri. That assessment took place on September 20, 2016 and Dr. Veluri authored a Report dated December 13, 2016. At page 13 of that Report, Dr. Veluri responded to the Referral Questions and assessed the Plaintiff’s current entitlement to an Attendant Care Benefit.

[7] One of the fundamental submissions of the Moving Defendants is that Dr. Gnam’s “expert evidence and opinions will be necessary so that the Moving Defendants may properly be able to respond to all of the Plaintiffs’ claims. This includes factors like substance abuse, which are important factors with respect to quantifying the claim for retroactive Attendant Care Benefits and addressing a number of events, such as when treatment was put on hold in late 2002.”

[8] Furthermore, their submission is that “it would be contrary to the interests of justice and trial fairness to force the Moving Defendants to trial without obtaining a defence medical assessment by the assessor of their choice who can opine on the issues in dispute in this case.”

[9] It is requested that the Court compel the Plaintiff to attend a psychiatric assessment with Dr. Gnam since it “is the first such assessment sought by the Moving Defendants for the purpose of this proceeding. In the alternative, that the sough assessment is warranted and legitimate in the circumstances of this proceeding.”

[10] In a nutshell, the Plaintiff’s position is that a defence medical examination under Section 105 of the Courts of Justice Act is not as of right. The Court has the jurisdiction to allow or disallow such an examination under Section 105 to avoid an abuse of process. Economical has already obtained a psychiatric assessment by Psychiatrist Dr. Veluri in December of 2016 and that assessment is supported by a comprehensive Occupational Therapy Report. There has been no change in the Plaintiff’s condition since that assessment. The request now made is a second request for a psychiatric assessment and accordingly requires justification, especially when the request is an assessment by a second psychiatrist. According to the Plaintiff’s submission, this is really an abuse of process because the Defendants do not like what their first psychiatrist or what their two Occupational Therapists determined. As well, this would be an unnecessary re-examination of the Plaintiff.

[11] With respect to the question of whether the proposed examination with Dr. Gnam is the first such examination sought by the Moving Defendants for the purposes of this proceeding and for providing expert evidence for trial, I refer to the following passages from Anderson v. 45859 Ontario Ltd. (c.o.b. Teachers Life Insurance Society (Fraternal), 2010 ONSC 6585, [2010] O.J. No. 6041 (Ont. S.C.J.):

“27 The first issue to be decided is whether the pre-litigation medical examination by Dr. Williamson conducted at the request of the defendant can be considered a medical examination for the purposes of section 105 of the Courts of Justice Act such that the defendant’s current request would be considered a request for a second examination and therefore subject to different considerations in the exercise of the court’s discretion whether to make such an order.

29 The defendant relies on several cases that are existing authorities which establish that a first medical examination under section 105 is generally almost as a matter of right. The exercise of the discretion generally comes into play only when a second and subsequent examination is requested under section 105(4).

30 The case law is very clear that every defendant, adverse in interest and separately represented, is entitled to his or her own defence medical examination unless multiple examinations would cause the plaintiff unnecessary inconvenience or embarrassment or where further defence medicals would not serve the just and most expeditious or least expensive determination of the proceeding on the merits.

The Master referred to the case of Harris v. Canada Life Assurance Co., 2002 ONSC 49429, [2002] O.J. No. 1123 (Ont. S.C.J.), wherein Justice Nordheimer concluded that pre-litigation medical examinations by insurers conducted pursuant to a contractual agreement or a statutory provision are separate and apart from the right which the insurer has to a medical examination once it becomes a party to litigation.

32 However, of particular importance is the fact that His Honour goes on to state that the court retains the discretion whether to order any medical examination to eliminate any potential for abuse that might arise from this conclusion in any particular fact situation.

33 The Divisional Court in LaForme v. Paul Revere Life Insurance Co., [2006] O.J. No. 2508 (Ont. Div. Ct.), reviewed a line of authorities that included the previously mentioned cases of Harris, Tsegay and Ribeiro, and summarized the law as follows:

a) The right of an insurer to an examination under an insurance contract is entirely separate and distinct from the right a party has to request a medical examination under s. 105 and Rule 33.

b) An examination under the contract between the parties, prior to litigation, does not pre-empt or nullify the clear right to a medical examination under s. 105 and Rule 33; and

c) A defendant has a prima facie right to a first medical examination under s. 105 and Rule 33 without the need for evidence or justification.

34 The Divisional Court in LaForme upheld the decision of the motions judge and found that there was no abuse of process nor an attempt to bolster an earlier opinion, rather it was a request to have the plaintiff seen by the same expert doctor who had assessed the plaintiff two and a half years earlier. The court found that the request was not an attempt to corroborate another medical opinion.

38 It is settled law that a prior medical examination under one statute or its regulation is relevant to the question of whether a medical examination properly may be ordered under the other statute or its regulation.”

[12] It is important to consider that Economical’s psychiatric examination conducted by Dr. Veluri under the Statutory Accident Benefits Schedule was requested and completed in 2016 after this litigation had commenced. Dr. Veluri was chosen by Economical, and his Report was prepared more than a year after pleadings were exchanged. Economical was obviously aware of the Plaintiff’s substance abuse issues at that time, and they certainly appear to be aware of the need to assess his retroactive assessment of Attendant Care needs at least since they were served with the Report of Dr. Hamilton dated August 28, 2014. When I consider the correspondence dated March 28, 2016 from Economical’s Claims Technical Advisor Mr. Smith, and that the Reports of Ms. Maurice included the assessment of retroactive Attendant Care from 1996, the decision made during litigation to have the Plaintiff submit to the psychiatric assessment of Dr. Veluri in 2016 in my view makes that a first examination under s. 105 of the Courts of Justice Act for the purpose of this proceeding.

[13] The next consideration is whether a further second psychiatric assessment is warranted and legitimate in these circumstances of this proceeding. And whether any such defence medical examination granted should be assessed by a different psychiatrist?

[14] In Monastero v. Savage, [2008] O. J. No. 2810 (Ont. S.C.J.):

“18 The relief sought in this motion is discretionary.

19 Counsel referred to numerous authorities regarding the applicable principles involved in the exercise of the court’s discretion which, I suggest, may be summarized in the following manner for this motion:

i) The moving party must establish a need for further medical examination or assessment. Existing reports ought be considered.

(see Trotter v. Cattan (1977), 15 O.R. (2d) 800 (S.C.O.-Master); Desbiens v. Mordini, [2002] O.J. No. 5056 (Ont. S.C.J.-Master); Campbell v. Cotton, [2002] O.J. No. 1183 (Ont. S.C.J.-Master); Nelson v. Thiruchelvam, 2005 ONSC 4849, [2005] O.J. No. 743 (Ont. S.C.J.-Master); and MacRae v. Drueniok, [2007] O.J. No. 3283 (Ont. S.C.J.)

ii) A change in symptoms or complaint or an unexpected development or change in circumstances is often associated with the test for need.

(see Tilson v. Economical Mutual Insurance Co., [1999] O.J. No. 4094 (Ont. S.C.J.); Abul-Nabi v. Wawanesa Mutual Insurance Co., [1999] O.J. No. 3966 (Ont. S.C.J.; Gravelle v. Pearson, [2001] O.J. No. 281 (Ont. S.C.J.; and MacRae v. Dreunoik, supra.)

iii) The overriding test is fairness and the ability to present the best evidence at trial.

(see Taub v. Noble, [1965] 1 O.R. 600 (Ont. H.C.J.); Vreken et al. v. Fitchett et al. (1984), 45 O.R. (2d) 515 (Ont. A.C.J.); Jimenez v. Robertson, [1994] O.J. No. 831 (Ont. Gen. Div.); Chapell v. Marshall Estate, [2001] O.J. 3009 (Ont. S.C.J.); and Bernier v. Assan, 2006 ONSC 16481, [2006] O.J. No. 1978 (Ont. S.C.J.)”

[15] Courts should strive to achieve fairness in the trial process in order to achieve a “level playing field” at trial that will ensure a just result, and Economical should have the right to challenge the evidence of the Plaintiff’s experts in order to provide fairness in the litigation. The need for a second medical examination here can be gleaned from the compendium of expert medical reports filed.

[16] The Moving Defendants submit however that they are entitled to their choice of assessors. On the basis of this particular situation, after already choosing Dr. Veluri for their first Report, can they now choose Dr. Gnam for a second psychiatric examination?

[17] From Sinclair v. Underwood, 2002 BCSC 340, [2002] B.C.J. No. 515:

“5 The authorities show that the purpose of a defence examination is to put the parties on a basis of equality. It is not for the Plaintiff to decide which doctor can examine him or her on behalf of the Defendant. And it is for the Trial Judge to determine “the fairness, partiality, credibility and objectivity of the physician conducting an independent medical examination”. See Brousseau v. Bettencourt (1994), 25 C.P.C. (3d) 367, particularly at p. 370. In my view the Defendant is clearly entitled to the Order sought unless the Plaintiff can demonstrate by a preponderance of evidence that there are sufficient grounds to justify the Court concluding that its discretion should not be exercised in favour of the appointment of the Defendant’s nominee doctor. And see: Adelson v. Clint (1993), 16 C.P.C. (3d) 209.

22 It is a matter for decision by the Trial Judge based on evidence and not mere assertion. The Defendant’s right, in the first instance, to have the Plaintiff examined by a doctor of his or her choice, and independent of the Plaintiff, should not be successfully challenged unless the opposing Plaintiff can demonstrate by a preponderance of evidence that there are sufficient grounds to justify the Court concluding that its discretion should not be exercised in favour of the appointment of the Defendant’s nominee. In my view, for the Plaintiff to succeed, there must be evidence of real or effective inappropriate conduct on the part of the nominee doctor, and not simply the whim or idiosyncrasies of the Plaintiff or similar views of his or her Counsel. The right of the Defendant to nominate his or her independent medical/legal examiner should not be lightly taken away by the Court in the exercise of its discretion. The fundamental principle is that the examination is granted to put the parties on a basis of equality. See: Guglielmucci and Wildemann v. Webster (1990), 50 B.C.L.R. (2d) 244.”

[18] And also from Sousa v. Akulu, [2006] O.J. No. 3061 (Ont. S.C.J.):

“15 In order to maximize fairness, and attempt to keep the parties on an equal basis at a pre-trial and trial, the parties should as much as possible be granted equivalent tactical and strategic advantages. In the same way as a plaintiff has a right to select its physician of choice throughout the litigation, the rules provide that the defendant has a prima facie right to select its physician of choice to conduct the defence medical(s). While the Court has discretion to order another physician, or terms and conditions of a defence medical, the plaintiff has the burden of providing valid and legitimate reasons why another physician or terms are necessary.”

[19] In the earlier decision of Binns v. Skinner Estate, 2000 ONSC 26982, [2000] O.J. No. 3739 (Ont. S.C.J.):

“18 While the Appellant is entitled to further medical examination of the Respondent, this is not an unlimited right.

19 What then of the Appellant’s assertion that it is entitled to have this further medical examination conducted by a doctor other than Dr. McGonigal or Dr. Finkelstein? I am aware that the defence medical examiner may well be the Appellant’s most important witness respecting causation and damages issues. However, the Master was not in error in considering the effect of the adversarial process of the Appellant’s right to call its two accident benefits medical examiners as its witnesses in the tort action. I note that the Appellant seeks a medical examination by a third orthopaedic surgeon and that both accident benefits doctors are orthopaedic surgeons. Lastly, I note that the Respondent relies on one orthopaedic surgeon’s opinion.

20 Both of the accident benefits medical examiners are doctors chosen by the Appellant to advise it, and to testify, if necessary, respecting the Respondent’s injuries and claims. I am not persuaded that the Master erred in requiring the Appellant to make use of one of its accident benefits doctors in these circumstances.

21 The Master permitted the Appellant to address its questions respecting tort issues to Dr. Finkelstein because he had conducted the most recent accident benefits medical examination of the Respondent. Since I am of the view that the Appellant is entitled to a further medical examination of the Respondent, this rationale is no longer of significance. The Appellant, therefore, may have a further medical examination conducted by one of Dr. McGonigal or Dr. Finkelstein.”

[20] While I have been satisfied by the Moving Defendants that they are entitled here to a further psychiatric examination of the Plaintiff in these circumstances presented, it only has a prima facie right to select its psychiatrist of choice. As indicated in Sousa v. Akulu, the Court has discretion to order another physician or terms and conditions. In my view, the Plaintiff has satisfied its burden of providing valid and legitimate reasons why another psychiatrist is necessary here, in particular Dr. Veluri.

[21] The Moving Defendants have submitted that Dr. Veluri’s examination and subsequent Report were insufficient in scope and did not address all the issues that will be in dispute at the trial of this action. The suggestion is that an assessment by Dr. Gnam is warranted for trial fairness and “leveling the playing field”. However Dr. Veluri was only asked by Economical to opine on the Plaintiff’s Attendant Care Benefit at the time of assessment. There is no evidence put forward on this motion from Dr. Veluri or Dr. Gnam as to why such an assessment by Dr. Gnam is necessary or that Dr. Veluri lacked the qualifications to offer such an opinion on the Plaintiff’s injury. In providing an expert opinion, both Dr. Veluri and Dr. Gnam owe a duty of impartiality to this Court. I was provided with no reason why Economical could not have asked or cannot ask Dr. Veluri to comment on the issues they want Dr. Gnam to comment on now. There is no suggestion that Dr. Veluri is not now available. I do have a concern for a potential abuse of the process here and the potential burden on the Plaintiff of excessive medical examination by the same insurer acting in different capacities. As Justice MacDonald decided in Binns v. Skinner Estate, the Court required that the further medical examination be conducted by one of the previous accident benefits examiners.

[22] Furthermore, at the hearing of this Motion I specifically asked Counsel for Economical why they were requesting that the Plaintiff now be assessed by another psychiatrist rather than being reassessed by Dr. Veluri. I was told that Economical is not alleging that Dr. Veluri is biased in any way. When Dr. Veluri was being retained to do the section 65 assessment it was noted that he had previously treated the Plaintiff and any potential conflict was waived at that time by Economical in order to assess the Plaintiff’s current, not retroactive, entitlement to an Attendant Care Benefit. I was not given any reasons why Dr. Veluri could not also assess the Plaintiff’s retroactive entitlement to Attendant Care Benefits or its quantification, or any other issues requested by the second assessment. In his Report of December 13, 2016, at page 2, “No conflict of interest was identified”. At pages 13 and 14 of his Report, Dr. Veluri acknowledged his duties regarding his opinion evidence. I still fail to see here how it would be inappropriate for Economical to choose a psychiatrist because apparently he may have a conflict by way of previous treatment of the Plaintiff; that certainly did not prevent Economical from choosing Dr. Veluri for the first assessment of the Plaintiff. As well Dr. Veluri has stated that no conflict was identified. Given the volume of material he has already reviewed for his first Report, it would also appear that having Dr. Veluri conduct the second assessment may not jeopardize the August 8 and 9, 2018 Pre-trial Conference.

[23] In these circumstances to have another psychiatrist prepare another separate medical report would not be in compliance with the spirit of the legislation. The purpose is to provide defendants with an independent medical report, not necessarily another report by another psychiatrist of their own choosing.

[24] Therefore, for all of the above reasons, I make an Order requiring that the Plaintiff attend a second psychiatric assessment with Dr. Ramamohan Veluri, pursuant to Rule 33 of the Rules of Civil Procedure and section 105 of the Courts of Justice Act.

[25] Success in this Motion appears to have been divided. At first blush, a “no costs” award appears to be in order. If these litigants are unable to agree as to appropriate costs award for this Motion, any party seeking costs shall within 15 days provide written submissions (up to five pages) supported by a Bill of Costs. Any responding submissions (up to five pages) shall be provided within a further 15 days.

Released: June 28, 2018 The Honourable Mr. Justice David J. Nadeau