Court File and Parties

COURT FILE NO.: CV-14-500278 DATE: July 3, 2018

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Nima Mohiti v. Leah Lemaire;

BEFORE: MASTER C. WIEBE

COUNSEL: J. Small for the defendant; H. Cooper for the plaintiff.

HEARD: June 19, 2018.

Reasons for Decision

[1] The defendant brings this motion for an order requiring that the plaintiff attend at an independent medical examination with Dr. Michael Devlin, a physiatrist, on August 1, 2018 at 1:00 p.m. The plaintiff opposes the motion.

[2] For the reasons stated herein, I grant the motion.

Background

[3] Based on the evidence presented, I find the following relevant facts.

[4] This action concerns a collision on September 14, 2013 between a motorcycle driven by the plaintiff and a car driven by the defendant. The plaintiff sustained injuries which resulted in the amputation of his left leg.

[5] The plaintiff commenced this action on March 17, 2014 claiming $5 million in general damages and $2 million in special damages. The defendant defended the action on May 26, 2014. There is apparently another action brought by the passenger on the motorcycle against the defendant in which the plaintiff in that action claims $1 million in general damages and $500,000 in special damages. These two actions have been ordered to be tried together.

[6] The defendants’ insurance has a limit of $1 million. It is undisputed that the evidence to date indicates that the plaintiffs may obtain judgments totaling well in excess of that limit.

[7] The major issue in these cases will be damages. In this action, the plaintiff claims damages for medical care and loss of income and earning capacity amongst other damages. The plaintiff has ongoing issues with his left leg and the use of the prosthetic leg he received after the accident.

[8] Between December, 2014 and August, 2017 the plaintiff served 11 reports from 6 expert witnesses – a neuropsychologist, an orthopedic surgeon, a neurologist, a psychiatrist, a physiatrist and an occupational therapist. Between January and August, 2017, the defendant served three expert reports, one from a neuropsychologist, another from an occupational therapist concerning future needs and cost of living, and one from an occupational medicine specialist.

[9] The plaintiff set this action down for trial on March 23, 2016. In the Certification Form that was filled out and signed by both counsel by October, 2016, defendants’ counsel specified that the defendant would be calling four expert witnesses. The plaintiff consented to the three defence medical examinations to date, but not to the one now being sought.

[10] Much of this motion turned on the occupational medicine defence medical reports. These were appended to an affidavit sworn by the lawyer for the plaintiff, which was filed in this motion. On November 11, 2016, the plaintiff was examined by Dr. B. McGoveran, an occupational medicine specialist retained by the defendant. It is undisputed that the specialty of occupational medicine focuses on the fitness of injured persons for return to work. The McGoveran assessment lasted for 2 hours and 55 minutes. The doctor did a thorough examination of the plaintiff’s history (medical and otherwise) and his overall physical condition. He assessed the plaintiff’s range of motion, pain, symmetry, muscle strength and reflexes. He issued a report on January 18, 2017 which reviewed all of this information and expressed his opinion on the injuries the plaintiff sustained on account of the accident and the plaintiff’s ability to return to his pre-accident work.

[11] On January 23, 2017, Dr. John Flannery, the physiatrist retained by the plaintiff, wrote a response to the McGoveran report. Dr. Flannery had himself examined the plaintiff on June 21, 2016 and had issued a report to plaintiff’s counsel dated January 5, 2017 that was served in early January, 2017. In his response, Dr. Flannery was critical of Dr. McGovern for not having a specific focus on chronic pain diagnosis, management and prognosis, and for not having extensive exposure to amputation diagnosis, management and prognosis.

[12] Dr. McGoveran issued a supplementary report dated February 6, 2018 where he indicated that his assessment of the plaintiff occurred while the plaintiff’s condition in relation to the prosthesis was evolving. He conceded that his specialty did not equip him to opine on the “clinical treatment of amputees.” He recommended another and more current “snapshot” of the plaintiff’s function by someone with such a specialty in the clinical treatment of amputees.

[13] Dr. Devlin practices at the West Park Health Centre Amputee Program in Toronto. There was no dispute that he has a specialty in the clinical treatment of amputees. The proposed examination will be for about one hour. Appropriate transportation for the plaintiff to see Dr. Devlin will be arranged and paid for by the defendant.

[14] The pretrial conference in this action is scheduled to take place in September, 2019 and the trial is scheduled to take place in November, 2019. These dates are well over a year from now.

Issue to be Determined

[15] At the argument of the motion there was a preliminary issue as to whether the defendant needed to seek leave to bring this motion by operation of Rule 48.04, namely the rule that prohibits a party who “consents to an action being placed on a trial list” from commencing motions without leave of the court. The issue turned on the fact that the defendant had agreed to the trial date in the Certification form. After a discussion, Mr. Cooper conceded that leave was not necessary for this motion, and I so ordered.

[16] Therefore, the sole issue to be determined is whether I should order the further medical examination sought by the defendant pursuant to section 105(4) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CLA”) and Rule 33 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

Analysis

[17] The test to be applied on a motion such as this was aptly described by Justice D. M. Brown in Bonello v. Taylor, 2010 ONSC 5723 (OSC). In this case, His Honour was dealing with a motion for a further defence medical examination by an orthopaedic surgeon after the plaintiff had served medical reports showing a change in the plaintiff’s injuries. At paragraph 16, he outlined the principles to be following on such a motion, and I herewith identify the relevant ones:

a) The moving party must show that the assessment is warranted and legitimate.

b) A request may be legitimate where the party’s condition has changed since the previous examination, a more current assessment is required for trial, the plaintiff has served specialist reports from new assessors after the defendant conducted its medical assessment, and some of the party’s injuries fall outside the expertise of the first examining practitioner.

c) While requests simply to “match reports” with comparable reports of similar specialist has been frowned on, the court should always be guided by what is necessary “to enable the defendant fairly to investigate and call reasonable responding evidence at trial.”

d) With a request for a second examination, the request must be supported by sufficient evidence to persuade a court of the need for the further examination. This can be either in the form of an affidavit of the first examining physician or an affidavit of a lawyer attaching medical reports.

e) There must be evidence of unfairness for the court to consider, and the court should also consider the burden the examination would impose on the plaintiff in light of the number of defence medical examinations already conducted.

[18] There was no issue concerning the nature of the evidence that was proffered by the defendant. The affidavit sworn by the lawyer for the defendant appending the medical reports is sufficient for the purposes of this motion.

[19] What was in issue was whether the requested assessment is warranted and legitimate. Mr. Small argued that it is warranted as a matter of fairness, as the defendant does not have a report from a physiatrist or orthopedic surgeon, and certainly not one with a specialty in amputations. He also argued that, according to the most recent report of Dr. McGoveran, the plaintiff’s symptoms had not stabilized at the time of the first McGoveran assessment, and that the further assessment of Dr. Devlin was warranted on that ground as well.

[20] As to the first ground, the one concerning the alleged need for an assessment by a physiatrist, this has the trappings of a request for a “matching” report for the one from Dr. Flannery. However, Mr. Small argued that this should not be an impediment and that the overriding issue is one of fairness to the defendant, as was stated by Justice Brown in Bonello. I agree. The court should focus on what expert evidence the plaintiff has obtained and what expert evidence the defendant may need in response as a matter of fairness to “level the playing field.” As to the second ground, the one concerning a change in the plaintiff’s condition, the issue is also one of fairness, namely that the defendant should be able to fairly assess all of the damages being claimed.

[21] Mr. Small referred me to examples of how fairness has guided the court on this issue. In Yan v. Nabhani, [2016] O.J. No. 2483 (Ont. Master), the defendant had obtained no medical reports while the plaintiff had delivered three. Master Pope granted leave for the requested defence examination by three specialists in the same areas. In Zysko v. Harling, [2016] O.J. No. 2890 (Ont. Master), Master Hawkins granted the defendant leave to have the plaintiff examined by a physiatrist with a specialty in rehabilitation medicine despite having already obtained an assessment by an orthopedic specialist. This was done because the plaintiff had obtained two medical assessments. In Godin v. Goncalves, 2014 ONSC 7297, [2014] O.J. No. 6186 (ONSC) the plaintiff had delivered a report of a brain injury by a neuropsychologist. The defendant had delivered reports from a psychiatrist, a physiatrist and a neurologist. Master Pope granted the motion for a defence assessment by a neuropsychologist because none of the other defence assessors had the expertise to provide an opinion arising out of neuropsychological testing and assessment. The guiding principle through all of these decisions is fairness.

[22] In response, Mr. Cooper argued that the requested assessment is nothing more than a “do over” which should not be condoned by the court. He argued that the plaintiff’s symptomology has not changed since the McGoveran assessment in November, 2016, and that the real purpose of the motion is essentially to correct a mistake by the defendant in choosing a non-physiatrist, Dr. McGoveran, to respond to the findings of the plaintiff’s physiatrist, Dr. Flannery. Mr. Cooper noted that the McGoveran assessment was as thorough and complete as any done by a physiatrist, and that his report wondered inappropriately into the realm of a physiatrist, as was noted by Dr. Flannery. Mr. Cooper argued that there would be “unfair” and prejudicial to subject the plaintiff to an assessment by Dr. Devlin in these circumstances.

[23] Mr. Cooper referred me to the decision of Justice Mitrow in Ramrup v. Lazzara, 2014 CarswellOnt 637 (ONSC) where His Honour denied a defendant’s motion for a further medical assessment of the plaintiff stating at paragraph 45 that a litigant is not entitled to simply match the experts retained by the opposing party, and at paragraph 48 that a further defence medical will not be permitted where the most recent disclosure is nothing more than a continuation of what was known rather than an unexpected change in complaints, symptoms and circumstances. Mr. Cooper also referred me to the decision of Justice Quigley in Jeffrey v. Baker, 2009 CarswellOnt 4561 (ONSC) where His Honour denied the defendant’s request for four medical assessments noting that the plaintiff had agreed to two examinations and that defence medical examinations are by their nature “highly intrusive and invasive.” He later in the same action granted the defendant leave to obtain further medical examination when there was evidence of new symptoms; see Jeffrey v. Baker, 2010 CarswellOnt 5620 (ONSC) at paragraph 19.

[24] I agree with Mr. Cooper that Dr. McGoveran’s supplementary report of February 6, 2018 would not per se justify a further medical assessment by a physiatrist on the basis of the plaintiff’s changed condition, as the report only refers to the plaintiff’s evolving “function” with his prosthesis. The report makes no reference to previously unknown symptoms.

[25] But that is not the core issue here. The issue is whether the defendant should be given an opportunity to obtain an opinion from a physiatrist with a specialty in amputation to respond to the opinion of the plaintiff’s physiatrist. While that is “matching” of reports, it is not the matching that the court should object to, as indicated in Bonello. It is only fair that the defendant be given this opportunity. I agree with Mr. Small that the “matching” that was frowned upon in Ramrup was the quantity of reports by the same defence specialists who had already examined the plaintiff and where the court found that there was no change in the plaintiff’s condition. Justice Mitrow stated in paragraph 80 that, “in my view, the defendants’ motion in large measure amounts to a request by the defendants to corroborate the existing medical opinions of their own experts.” That is not the case in the motion before me. Here the defendant does not have an existing medical report from a physiatrist and one with a specialty in amputations such as Dr. Devlin. This means that as a matter of fairness the motion should be granted.

[26] I also do not accept the inference suggested by Mr. Cooper that the choice by the defendant of Dr. McGoveran was in some way a “mistake.” Dr. McGoveran’s specialty of occupational medicine is a recognized specialty that concerns the ability of injured persons to return to work, which is a significant issue in this case.

[27] I make a final comment about Jeffrey. I note that Justice Quigley in his 2009 decision did not close the door on the requested examinations, as he granted the defendant liberty to return the motion once the results of the first two examinations were known and there was evidence of a “real and pressing need” for further examination. In paragraph 3 of his ruling, His Honour suggested that defence medical assessments in areas other those being examined on may be necessary. This indicates that His Honour was also sensitive to the need to allow the defendant medical assessments by other specialists as required by the circumstances.

Conclusion

[28] For the reasons stated above, I grant the motion.

[29] As to costs, the parties filed costs outlines for the motion at the end of the argument. The defendant’s costs outlines shows actual costs of $5,895.52 and partial indemnity costs of $4,123.68. The plaintiff’s costs outline shows a partial indemnity amount of $5,802.83.

[30] The defendant was successful on this motion and deserves costs. There is no reason to deviate from the usual standard of costs, namely partial indemnity. The plaintiff’s position and conduct was not unreasonable. The two costs outlines are quite similar both as to the time spent and total costs claimed. Therefore, the defendant’s partial indemnity costs is what the plaintiff could reasonably have expected to pay in the event of the defendant’s success. I, therefore, award the defendant $4,000 in costs for this motion, to be paid in 30 days.

DATE: July 3, 2018

MASTER C. WIEBE