Ontario Superior Court of Justice

Between: Giuseppina Farrugia and George Farrugia, Plaintiffs – and – Frank Vetere and Vetere’s Home Renovations, Defendants

Counsel: J. Golosky, for the Plaintiffs V. Mitrova, for the Defendants

Heard: August 16, 2018

Reasons for Decision

Sanfilippo J.

Overview

[1] The defendants bring this motion for an order compelling the plaintiff, Giuseppina Farrugia, to attend a defence occupational therapy assessment on a date to be agreed upon by the parties.

[2] For the reasons set out below, the motion is granted on terms pertaining to the timing of the examination and the delivery of the resultant report.

I. BACKGROUND

[3] Ms. Farrugia alleges to have sustained injuries on or about September 11, 2013 when she fell in her home while it was undergoing renovations. Ms. Farrugia alleges that the physical limitations resulting from her injuries have caused her a loss of income because she cannot work. She also alleges that she cannot perform daily household activities, including home maintenance. She seeks monetary damages from the defendants, including for the loss of income that she claims to have sustained and for the expenses that she claims to have incurred and will incur in her future care.

[4] Ms. Farrugia has produced the reports of four experts whom she intends to present at trial to provide assessments of her injuries and to address the economic impact caused by the injuries, as follows:

a) An orthopedic assessment report prepared on September 20, 2016 by Dr. Chris Gallimore, orthopedic surgeon, who concluded that Ms. Farrugia is not able to work in her pre-accident employment due to ongoing pain and difficulty mobilizing. Dr. Gallimore found that Ms. Farrugia has difficulty standing or walking for more than ten or fifteen minutes and is currently unable to engage in any employment for which she is suited by education, training or experience.

b) A present value of loss of income analysis, prepared by TCL Economic Valuation Experts on November 7, 2016. Before the fall, Ms. Farrugia was employed full-time as a receptionist. She can no longer perform this role. This report concludes that Ms. Farrugia’s present and future income loss resulting from the injuries sustained in her fall are quantified at either $495,230 or $678,875, depending on the scenario used.

c) A present value of the cost of future care, prepared by TCL Economic Valuation Experts on November 9, 2016.

d) A future cost of care analysis, prepared by Professional Rehabilitation Consultants on November 1, 2016, which found that Ms. Farrugia cannot complete housekeeping tasks or home maintenance responsibilities as a result of her injuries. This report estimates the cost of providing Ms. Farrugia with housekeeping assistance at $5,280 per year until the age of 70.

[5] The defendants obtained a defence orthopedic medical assessment report prepared by Dr. Rick Zarnett on July 28, 2017. Dr. Zarnett stated that Ms. Farrugia’s ongoing injuries would affect her ability to regain employment as well as her ability to undertake her housekeeping and home maintenance activities.

[6] In May, 2018, the defendants requested that Ms. Farrugia submit to a defence occupational therapy assessment, proposing dates in June, 2018. The plaintiff did not agree, resulting in the defendants bringing this motion.

II. ANALYSIS

The Law

[7] The defendants acknowledge that the relief that they seek is not available pursuant to section 105(2) of the Courts of Justice Act, R.S.O 1990, c. C.43, which provides as follows:

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.

[8] Section 105 of the Courts of Justice Act is not available because an occupational therapist is not a “health practitioner”, which is defined by section 105(1) of the Courts of Justice Act as “a person licensed to practice medicine or dentistry in Ontario or any other jurisdiction, a member of the College of Psychologists of Ontario or a person certified or registered as a psychologist by another jurisdiction”.

[9] Rather, the defendants ask that the defence occupational therapy assessment be ordered on the basis of the Court’s inherent jurisdiction. The governing case on this issue, relied upon by both parties in submission, is Ziebenhaus (Litigation Guardian of) v. Bahlieda, 2014 ONSC 138, 119 O.R. (3d) 275 (Div. Ct.) [Ziebenhaus], aff’d 2015 ONCA 471, 336 O.A.C. 135 [Ziebenhaus (C.A.)]. Here, the Court of Appeal upheld the determination by the Divisional Court that the Court has the inherent jurisdiction to order that a party to an action undergo a physical or a mental examination by a person who is not a health practitioner where the Court determines that the examination is “necessary to do justice between the parties”: Ziebenhaus, paras. 69-72; Ziebenhaus (C.A.), para. 13.

[10] The Divisional Court and the Court of Appeal set out the principles that inform a Judge’s exercise of the inherent jurisdiction to order such an examination, as follows:

a) Recourse to the inherent jurisdiction to order such an examination ought to be exercised sparingly: Ziebenhaus, para. 72; Ziebenhaus (C.A.), para. 15;

b) The determination of when the mental or physical examination is “necessary to do justice between the parties” is based on the Court’s assessment of the impact on trial fairness. The examination must be required by the defendant in order to respond to the plaintiff’s case: Ziebenhaus, paras. 63, 72; Ziebenhaus (C.A.), para. 15;

c) An examination cannot be ordered simply to “match” a report already provided by the plaintiff: Ziebenhaus, para. 71. By extension of this principle, I consider that a defendant can seek an order for the plaintiff to be examined by a specialist in an area on which the plaintiff has not delivered a report.

[11] The defendants rely on cases in which the court has ordered the examination of a plaintiff by an occupational therapist: Lo Faso v. The Guarantee Company of North America 2013 ONSC 5595; Nantais v. Lenarduzzi, 2013 ONSC 7943.

Application of Legal Principles

[12] The plaintiffs resist the examination sought by the defendants on the basis that it is not necessary. The plaintiffs submit that the defendants have obtained a report from an orthopedic specialist, Dr. Zarnett, with clear and unequivocal findings that render unnecessary any input from an occupational therapist. In making this submission, the plaintiffs rely principally on the following findings by Dr. Zarnett:

Ms. Farrugia is going to have ongoing symptoms in the hip that are in all probability going to continue to interfere with her ability to resume her pre-accident activities. These limitations appear to be based on her perceptions of pain and to not correlate with the physical examination or the findings on ancillary testing, including x-rays, CT scan and bone scan.

While I suspect that Ms. Farrugia’s symptoms will persist and will be aggravated by weightbearing activities, I see no reason to place any formal restrictions on her. Any limitations appear to be based on her subjective reports of discomfort and not related to any significant accident-related pathology that could be identified at this time.

In my opinion, Ms. Farrugia has reached maximum medical improvement and I do not feel she would benefit from further therapy or treatment. [Emphasis added]

[13] The defendants rely on other statements in Dr. Zarnett’s report in support of their submission that the occupational therapist’s assessment is necessary for the defendants to meet the case that has been advanced, specifically the following:

Ms. Farrugia is going to have ongoing difficulty working in a job that requires standing and walking primarily as a result of her subjective reports of discomfort. Her subjective symptoms are unlikely to improve at this time and will in all probability remain permanent to some extent.

Ms. Farrugia will continue to have symptoms in her hip which will prevent her from resuming her housekeeping and home maintenance tasks, social and recreational activities and activities of daily living. These limitations though appear to be out of proportion to what one would expect given the nature of the injury and the results of post-operative tests. Furthermore, her impairments and resultant limitations appear to be primarily on the basis of her subjective reports of discomfort and not related to significant pathology that can be identified at this point in time which would account for her symptoms or limitations. [Emphasis added]

[14] I find that Dr. Zarnett’s opinions support the defendants’ submission that an occupational therapist assessment is necessary. The occupational therapist will be called upon to provide opinions on:

• recommendations for workplace or home modification to reduce or eliminate the effects of any functional limitations;
• the sorts of employment that Ms. Farrugia is able to engage in and for which she is reasonably suited, considering her limitations;
• the nature of the limitations on Ms. Farrugia’s ability to perform normal daily activities, including housekeeping and home maintenance tasks and to attend to her own care; and
• recommendations for workplace or home modification or devices for Ms. Farrugia to reduce or eliminate the effects of any functional disability or to facilitate her reintegration into the workplace.

Further, of course, the qualifications and area of expertise of the occupational therapist are different than those of the orthopedic specialist.

[15] I accept the defendants’ submission that the opinions sought by the defence in the requested occupational therapist assessment would not be duplicative of those provided by the defence orthopedic expert.

[16] The plaintiffs submitted that because Dr. Zarnett did not recommend an occupational therapist assessment, one must not be necessary. I do not accept this submission. In Ziebenhaus, the Court of Appeal specifically rejected the submission that an examination by an expert other than a health practitioner ought to be ordered only when the report is needed by a health care practitioner as a diagnostic aid: Ziebenhaus (C.A.), paras. 8, 9.

[17] I have noted, as well, that the plaintiffs’ future cost of care analysis contains a specific recommendation concerning the conduct of an occupational therapy assessment:

“It is this consultant’s recommendation that Ms. Farrugia undergo an Occupational Therapy Assessment in her home. Ideally, the occupational therapist could make recommendations in regards to what she can do to improve her overall quality of life as she is functioning at a significantly lower level than she was prior to the fall.” …

[18] The plaintiffs submitted that an occupational therapy assessment would be prejudicial to Ms. Farrugia in that it would be intrusive and the timing is late, in light of the pre-trial conference scheduled in this action for November 5, 2018. I do not accept these submissions. The plaintiffs have advanced claims for damages in excess of $700,000 and are required to allow the defendants an opportunity to meet the claims advanced, including through appropriate examinations and assessments. Any inconvenience to Ms. Farrugia can be reduced by ensuring that the date for the assessment is acceptable to her schedule.

[19] In terms of the lateness of the defendants’ motion, which places into jeopardy the service of the resultant occupational therapy report at least 90 days prior to the pre-trial conference scheduled for November 5, 2018, the defendants submit that if the plaintiffs had consented to the requested examination in May, 2018, when first sought, a report could have been completed and delivered by the defence more than 90 days before the pre-trial conference. As such, the defendants submit that the plaintiffs’ resistance to this examination necessitated this motion and, because of the need to bring the motion, created the very prejudice that the plaintiffs now assert. I have concluded that the prejudice alleged by the plaintiffs can be mitigated through terms pertaining to the timing of the examination and the delivery of the resultant report.

[20] The fundamental consideration, however, is whether the examination is “necessary to do justice between the parties”: do the defendants require this assessment in order to meet the case that has been advanced? I have concluded that it is fair and just that the defendants are granted the entitlement to conduct this examination.

[21] The plaintiffs have specifically placed into issue Ms. Farrugia’s injuries and assert that the injuries prevent Ms. Farrugia from engaging in employment as she did prior to the accident, and restrict or limit her daily activities of housekeeping, home maintenance, personal care and, generally, enjoyment of life. The assessment by the defendants’ orthopedic specialist does not take the place of an occupational therapist’s assessment. The plaintiffs’ expert reports quantify damages arising from loss of income at either $495,230 or $678,875 and future care totaling in excess of $100,000, meaning that the defendants are facing a significant financial claim. I am satisfied that the defendants are entitled to an occupational therapist assessment as part of their effort to meet these claims, and in order to ensure fairness in the trial process.

[22] As the defendants’ motion was brought close to the pre-trial conference pending for November 5, 2018, the occupational assessment must take place soon so that the report can be delivered at least 30 days before the pre-trial conference. This will allow the plaintiffs’ some time for response and they can raise at the pre-trial conference any issue arising from the receipt of this report in less than the time required by the Rules. Ms. Farrugia is available for the assessment on September 24, 2018 and, on being advised that this date is available to the assessor, this date is fixed for the occupational therapy assessment. The occupational therapists report must be delivered by the defendants to the plaintiffs no later than October 5, 2018.

V. DISPOSITION

[23] An order is granted that the plaintiff Giuseppina Farrugia attend a defence occupational assessment on September 24, 2018, a date agreed upon by the parties as convenient to Ms. Farrugia and the assessor. I order further that the defendants are to deliver the occupational assessment report by no later than October 5, 2018.

VI. COSTS

[24] The defendants submitted that they were entitled to costs by reason of their success in the motion. The plaintiffs sought costs on the basis that they were justified in requiring a court determination before submitting their client to a defence medical examination that is not authorized by section 105 of the Courts of Justice Act, and on the basis that the defendants’ delay in seeking this relief and advancing this motion ought to disentitle the defendants to costs.

[25] I have determined that the defendants are entitled to costs based on their success on the motion.

[26] In assessing the amount of costs, I have considered the submissions by counsel, the cost outlines, the factors set out in Rule 57.01 and the principles established by the applicable case law. In the exercise of my discretion, I award costs of this motion to the defendants, fixed in the amount of $750.00, all-inclusive.

Sanfilippo J.

Released: August 17, 2018