COURT FILE NO.: Cv-13-494077

MOTION HEARD: 20180522

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Shoba Kolapully, Plaintiff

AND:

Lynda Myles and Toronto Transit Commission, Defendants

BEFORE: Master P. Tamara Sugunasiri

COUNSEL: Townsend, C., Counsel for the Defendants/Moving Party

Dahab, M., Counsel for the Plaintiff/Responding Party

HEARD: May 22, 2018

REASONS FOR DECISION

Overview:

[1] The Defendants seek two defence medicals in this personal injury action. The Plaintiff opposes on the basis of issue estoppel. She argues that “the TTC seeks to have the Plaintiff attend a defence medical which is in essence designed to answer the very same questions that have been answered by its accident benefit experts, and to re-litigate the issues of causation and injuries previously adjudicated and determined in a final basis by the Financial Service Commission for Ontario (“FSCO”) and the Licence Appeal Tribunal (“LAT”).”

[2] I disagree with the Plaintiff, and allow the Defendants’ motion, in part. The Plaintiff seeks $500,000 in general damages and $500,000 in special damages in the tort action. The test for recovery of these amounts in a tort action is different than the ones employed by FSCO and LAT under the Statutory Accident Benefits regime. The Defendants’ are entitled to examine the Plaintiff with respect to her the physical complaints as alleged in the action. However, the Defendants are not entitled to an examination of the Plaintiff’s neurological condition on the basis that they anticipate that the Plaintiff may put it in issue.

Facts:

[3] The facts are straightforward.

[4] This action arises as a result of a motor vehicle accident that occurred on March 6, 2012.

[5] The Defendant bus driver, Lynda Myles (“Myles”), struck the Plaintiff, Shoba Kolapully (“Kolapully”) as she was turning. Myles is a Toronto Transit Commission (“TTC”) driver.

[6] On or about December 3, 2013, the Plaintiff issued a Statement of Claim (“Claim”) bearing court file no. CV-13-494077 for general and special damages arising from the accident. In the Claim, Kolapully alleges that she has suffered serious and permanent impairment of both physical and psychological functions (see para. 10 of the Claim).

[7] On or about May 14, 2014, the Defendants served their statement of defence and jury notice.

[8] In addition to this action, there are two other proceeding arising from the accident. One proceeding before the LAT was to determine if Kolapully sustained “catastrophic impairment” pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“SABS”). The other was before FSCO to determine entitlement to non-earner benefits under the SABS regime.

[9] On January 19, 2018 the LAT rendered its decision finding Kolapully to be catastrophically impaired for the purposes of the SABS. The decision is currently under appeal. On March 9, 2018, Kolapully was found to be unable to carry on a normal life as a result of impairments flowing from the accident, and therefore entitled to ongoing non-earner benefits under the SABS regime. That decision is also under appeal.

[10] Examinations for Discovery took place on March 7, 2016 and a global mediation for the accident benefits claims and the present action took place on June 28, 2016.

[11] On May 26, 2017 Kolapully set the action down for trial. The Defendants did not consent to having the action placed on a trial list. Trial is scheduled for June 1, 2020.

[12] There have been no defence medicals conducted in this proceeding. Kolapully was examined by numerous medical experts retained by TTC’s insurer for the purposes of assessing benefits entitlement under the SABS regime. None of those reports comply with the requirements of an expert’s report pursuant to Rule 53.03(2.1).

Law and Analysis:

[13] The Defendants seek to have Kolapully submit to two defence medicals. The first is to address her allegations of physical impairment. The second is to address anticipated allegations of neurological impairment.

[14] As a preliminary objection, Kolapully argues that the Defendants have no standing to bring this motion because the action has been set down for trial. I accept the Defendants’ evidence that they did not consent to the action being set down and are therefore not subject to the consequences of setting an action down for trial as set out in Rule 48.04.

[15] The statutory authorization for ordering a medical examination in section 105 of the Courts of Justice Act provides:

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.

(3) Where the question of a party’s physical or mental condition is first raised by another party, an order under this section shall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe that there is substance to the allegation.

(4) The court may, on motion, order further physical or mental examinations.[^1]

[16] Additionally, Rule 33.02 of the Rules of Civil Procedure provides as follows:[^2]

(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.

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

[17] Section 1 of the Courts of Justice Act states that a civil “proceeding” includes a proceeding commenced by a “claim”.

[18] Rule 1.03 of the Rules of Civil Procedure defines “proceeding” as being an action or application.

[19] In the normal course, if “a person’s physical or mental condition is relevant to a material issue in the proceeding” and there is substance to the allegation, then the opposing party is “entitled to at least one examination”. A second defence medical in a proceeding is not granted as of right but rather is a discretionary matter.[^3]

[20] The right of an insurer to an examination under an insurance contract pursuant to section 258.3 of the Insurance Act is separate and distinct from the right of a party to request a defence medical examination under s. 105 of the CJA. A medical examination for the insurer under the Statutory Accident Benefits regime does not preclude defence medicals in the action.[^4]

[21] Relying on Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, counsel for Kolapully argues that the Defendants are issue estopped from obtaining any defence medicals because the extent of her damages have already been determined by FSCO and LAT adjudicators. She asserts that since Kolapully has been found to be catastrophically impaired under the SABS regime, it means that she meets the threshold of a “permanent and serious impairment” with respect to her tort action and therefore need not be subjected to more medical examinations.

[22] With respect, I disagree. First, because the thresholds to be met in the SABS regime is different than what is required in a tort action, so too would be the lens through which the TTC’s medical examiners would have examined Kolapully. Furthermore, I have not been shown any expert reports commissioned by the Defendants that meet the requirements of Rule 53.03(2.1) including an acknowledgement of an expert’s duty signed by the expert.

[23] Second, the argument that the tort threshold is readily met as a result of the SABS findings of catastrophic impairment is best left to be argued on summary judgment or at trial. I agree with the Defendants that delving into that issue inappropriately involves determining the merits of the case on what is otherwise a procedural motion.

[24] Third, the purposeful separation of findings and procedures under the SABS regime and tort actions is reflected in the Insurance Bureau of Canada’s internal bulletin 184:

...Where the same insurer insures both the tortfeaser for liability coverage and the victim for accident benefits, they should set-up 'Chinese walls' so that information gathered by it regarding the accident benefits claim does not become available to the tort adjuster, unless the insured so authorizes. The tort adjuster must rely solely on the Rules of Civil Procedure to obtain the information on the plaintiff's medical condition or on amounts she/he has received as accident benefits.

[25] As noted by the Divisional Court in Dervisholli v. Cervenak, 2015 ONSC 2286, the term “Chinese Wall” is better described as a “firewall”.

[26] Fourth, the only requirement in section 105 of the Courts of Justice Act is that a physical or mental condition of a party to a proceeding is in question. The tort action is clearly a proceeding under section 1 of the same Act. At this point, until a judge makes a final determination on Kolapully’s mental or physical condition in this proceeding (including a determination based on Kolapully’s suggested application of the doctrine of issue estoppel), Kolapully’s mental and physical condition is still in question.

[27] This takes me to the question of what medical examinations the Defendants are entitled to. It is well established that a defendant to a tort accident arising from a motor vehicle accident has a prima facie right to at least one medical examination.[^5]

[28] In the present case, the Defendants seek an order compelling Kolapully to attend an orthopaedic examination with Dr. Earl Bogoch. There is no doubt that Kolapully has put her physical condition in issue in this action. Indeed Kolapully retained the services of Dr. Getahun, an orthopaedic surgeon, to speak to issues of competiveness in the workplace, and ability to perform pre-accident housekeeping and home maintenance. These are squarely in issue in these proceedings as reflected in paragraphs 12 and 13 of the Claim. The Defendants have a prima facie right to its own orthopaedic examination.

[29] The Defendants also seek to have Kolapully attend a medical examination with Dr. Sharon Cohen who is a behavioural neurologist. In my view, the Defendants would also be prima facie entitled to one medical examination with respect to her mental condition, as long as the mental condition they seek to assess is one that Kolapully has put in issue. To hold otherwise would run contrary to the policy behind section 105 of the Courts of Justice Act and Rule 33. As As Gillese J. stated at page 313 of Tsegay, supra,

... The purpose of s. 105 and Rule 33 is to ensure that a defendant has full rights of production and discovery, once an action has been commenced and pleadings exchanged. These latter provisions ensure that if a party puts his or her medical condition in issue in a civil proceeding, the opposing party can test that allegation under fair conditions. A defendant is entitled to complete discovery in order to properly defend and assess the allegations in the pleadings.[^6]

[30] Kolapully has not, however, put her neurological state in issue. In paragraph 11 of the Claim, Kollapuly alleges that she suffers from “severe and profound mental anguish.” At paragraph 10 she states that she has headaches, anxiety, disturbed sleep and irritability. It appears from the record that counsel for Kolapully retained the services of Dr. Gerber to provide a psychiatric opinion for both the SABS assessment and the tort action. Medical records from Northern Lights Regional Health Centre suggest that Kolapully is attributing her depression to the subject accident. The Defendants do not however seek an independent medical assessment of her depressive symptoms. What they seek is a neurological assessment.

[31] Dr. Yufe’s suggestion to engage a behavioural neurologist was only if there was an issue about a mild brain injury:

“It is strongly recommended that if the question being asked is whether Ms. Kolapully has any cognitive impairment three years following a mild closed head injury, a physician, specifically a neurologist and preferably a behavioural neurologist conduct an independent examination to assist the court in this determination.”[my emphasis]

[32] At the moment, the Plaintiff does not claim that she has a mild closed head injury nor does she claim cognitive impairment arising from it. Indeed the Defendants admit that they seek the examination “in anticipation.” There is no evidence on the record before me that the Plaintiff is even contemplating pursuing relief for cognitive deficits or neurological impairment. As such the Defendants are not prima facie entitled to an independent neurological examination.

[33] If I am incorrect in my conclusion that a defendant facing a physical and mental claim has a prima facie right to an independent physical and mental examination, the Defendants are also not entitled to a neurological examination as a second examination. Section 105 of the CJA and Rule 33 gives the court discretion to grant a second examination if it is warranted and does not delay the trial or prejudice the plaintiff. Trial fairness, prejudice to the defendant and the overall interests of justice are also relevant considerations.

[34] Kolapully has endured multiple examinations and is understandably fatigued from the process. There is no reason to put her through another examination based on speculation as to what the Plaintiff may allege. Kolapully has been examined for discovery. I have no evidence on the record before me that she is claiming neurological impairment in these proceedings or that she intends to. The only reference to a possible mild brain injury comes from the TTC’s own neuropsychologists in the SABS process. As such, I reject the Defendants’ argument that the Plaintiff has made “assertions of a head injury and related neurological and psychological sequelae.” The firewall between the SABS process and the tort litigation applies to the Defendants as much as the Plaintiff. The fact that there were neuropsychological examinations in the SABS process does not mean that the Plaintiff has put neurological impairment in issue in the tort action.

Disposition:

[35] For the foregoing reasons, I grant the Defendants’ motion, in part. I order the Plaintiff, Shoba Kolapully, to attend for an orthopaedic examination with Dr. Bogoch at a mutually convenient time. I make this order without prejudice to the Defendants seeking further examinations should the Plaintiff amend her claim or otherwise assert neurological impairment as a basis for relief in these proceedings.

Costs:

[36] The Defendants have been partially successful. The Plaintiff has been successful in resisting one of the medical examinations sought by the Defendants. However, the majority of time spent at the hearing and the materials filed by both parties focused on the Plaintiff’s issue estoppel argument, which I have rejected. As such, this is not an instance in which the parties should bear their own costs. The motion was significantly complicated and lengthened by the estoppel issue. I have costs outlines from both parties. Based on the costs outlines, submissions of counsel and the factors set out in Rule 57.01, I order costs against Kolapully in the all-inclusive amount of $2500 payable within 30 days of today’s date.

Original Signed

Master P.T. Sugunasiri

Decision Released: August 21, 2018

[^1]: Courts of Justice Act, R.S.O. 1990, c. C.43. [^2]: Rules of Civil Procedure, R.S.O. 1990, Reg. 194. [^3]: Fehr v. Prior, [2006] O.J. No. 5244, para. 5 (SCJ). [^4]: Tsegay v. McGuire, 2000 CanLII 50968 (ON SC), [2000] OJ No 1557 (SCJ) as cited in LaForest v. de Vouge, [2004] OJ No 3570 at para. 13 (SCJ). [^5]: LaForme v. Paul Revere Life Insurance Co., [2006] OJ No 2508 at para. 13 (DivCt). [^6]: Tsegay v. McGuire, 2000 CanLII 50968 (ON SC), [2000] OJ No 1557 at para 4 (SCJ).