Court File and Parties

COURT FILE NO.: CV-13-495459 MOTION HEARD: 15 August 2018 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sandra Valente, Plaintiff AND: City of Toronto, Vinci Park (Canada) Inc. also known as Vinci Park Inc., Pace Parking Ltd. also known as CanPark Services Ltd. and May Flower Landscaping Design Limited, Defendants

BEFORE: Master Jolley

COUNSEL: Simon Cox, Counsel for the Moving Party Defendants Vinci Park Services (Canada) Inc. and May Flower Landscaping Design Limited Stephen Whibbs, Counsel for the Responding Party Plaintiff

HEARD: 15 August 2018

Reasons for Decision

[1] The moving party defendants seek an order requiring the plaintiff to attend a defence medical examination with Dr. Lang. The plaintiff is prepared to attend at the examination by Dr. Lang but on the condition that Dr. Lang not prepare any supplementary reports or addenda without obtaining her further consent. For the reasons set out below, the defendants’ motion is granted without the condition requested by the plaintiff.

[2] The plaintiff takes the position that her consent to any follow up report is required for three reasons. First, she argues that the preparation of a supplementary report constitutes a treatment under the Health Care Consent Act, 1996, S.O. 1996, c.2 Sched. A, for which her consent is required. Second, she argues that by preparing a supplementary report, Dr. Lang is performing a professional service which requires her consent, pursuant to section 1(1)9 of Regulation 856/93 of the Medicine Act, 1991, S.O. 1991, c.30. If Dr. Lang does not obtain her consent to prepare that report, he is guilty of professional misconduct under the Regulated Health Professions Act, 1991, S.O. 1991, c.18, Sched. 2, section 51. The plaintiff will not agree to an assessment that constitutes professional misconduct on the part of Dr. Lang. Third, the plaintiff argues that a supplementary report is a separate report from the initial independent medical examination report and her consent to a first examination, if given cannot be read as consent to this new report.

[3] I find that the consent of the plaintiff is not required to permit the health practitioner who conducted an independent medical examination under Rule 33 to prepare a supplementary report. I find that the preparation of a supplementary report is not a ‘treatment” for the purposes of the Health Care Consent Act, such that consent would be required. If I am wrong and consent would otherwise be required under that Act, I find that Rule 33 and Section 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 makes that consent unnecessary. Those provisions operate as a complete code and procedure for the conduct of court ordered independent medical examinations and the consent of a party is not required when a court has ordered the examination to take place. I further find that an order of the court permitting a health practitioner to examine a party and prepare an independent medical report implies by its terms that the health practitioner may prepare a supplementary report for the assistance of the court.

Health Care Consent Act

[4] Section 10 of the Health Care Consent Act provides as follows:

s. 10(a) A health care practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent.

[5] Section 2 of the Health Care Consent Act contains the following relevant definitions:

“treatment” means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment, plan of treatment or community treatment plan, but does not include:

(b) the assessment or examination of a person to determine the general nature of the person’s condition,

(d) the communication of an assessment or diagnosis.

“course of treatment” means a series or sequence of similar treatments administered to a person over a period of time for a particular health problem;

“plan of treatment” means a plan that:

(a) is developed by one or more health practitioners,

(b) deals with one or more of the health problems that a person has and may, in addition, deal with one or more of the health problems that the person is likely to have in the future given the person’s current health condition and

(c) provides for the administration to the person of various treatments or courses of treatment and may, in addition, provide for the withholding or withdrawal of treatment in light of the person’s current health condition.

[6] Looking at the purpose of an independent medical report prepared under Rule 33 or a supplementary medical report required by Rule 53.03(3) for use in civil litigation, I find that it is not intended to provide a “treatment” or “plan of treatment” as defined above. The health practitioner who prepared the report does not purport to “administer” treatment and the report is not “done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose”. Pursuant to the Acknowledgement of Expert’s Duty required by Rule 53, the purpose of such a report is to “provide evidence in relation to the court proceeding”. Further, the expert is to provide, in addition to his or her opinion evidence, “such additional assistance as the court may reasonably require, to determine a matter in issue.”

[7] As the Court of Appeal noted in Bellamy v. Johnson, [1992] O.J. No. 864, “it is unrealistic to view the examining doctor and the plaintiff-examinee as akin to that of the relationship which exists when a patient goes to a doctor seeking treatment or advice ” (emphasis added). In an independent medical examination, the plaintiff is not seeking treatment or advice and the provisions of the Health Care Consent Act are not engaged.

[8] The fact that the section of the Health Care Consent Act that deals with consent references a person being ‘capable’ with respect to receipt of the treatment also implies that a treatment is being administered to the individual. This is far removed from the preparation of a report that is not intended to treat the individual, let alone administer that treatment, but to provide the court with updated information to evaluate an individual’s health at the time of trial.

[9] In any event, even if a supplementary report could be considered a “treatment”, I find that it would be exempt from the Health Care Consent Act by definition, as it either or both “an assessment to determine the general nature of the person’s condition” and “the communication of an assessment or diagnosis”.

Regulated Health Professions Act

[10] The Regulated Health Professions Act states that a panel shall find that a member has committed an act of professional misconduct if he or she has committed an act of professional misconduct as defined in the regulations. Section 1 of Regulation 856/93 to the Medicine Act, 1991 lists acts that are considered professional misconduct for the purposes of the Regulated Health Professions Act and one of those acts is performing a professional service for which consent is required by law without consent (section 1(1)(9). The plaintiff argues that she should not be required to undergo an examination that would constitute professional negligence for the health practitioner to carry out.

[11] The College of Physicians and Surgeons, Dr. Lang’s regulator, has not taken the position on this motion that Dr. Lang will be committing professional misconduct if he files a supplementary report without the plaintiff’s consent. In the case of Klassen v. College of Physicians and Surgeons of Ontario where the court discussed a similar issue, i.e. whether a health practitioner who prepared a report under Rule 33 was practising medicine, both the health practitioner and the regulator were before the court to make argument. This is not the case here where the plaintiff is attempting to use a regulation directed at the conduct of the health practitioner to prospectively halt any report.

[12] If the matter proceeded to the regulatory stage, presumably Dr. Lang would argue that he has not committed professional negligence as the plaintiff’s consent is not “required by law” in the circumstances of a report under Rule 33 and section 105 of the Courts of Justice Act. That issue is best dealt with between Dr. Lang and his regulator and it would be premature to address that here.

Rule 33 of the Rules of Civil Procedure and Section 105 of the Court of Justice Act

[13] The report is being prepared under Section 105 of the Courts of Justice Act and Rule 33 of the Rules of Civil Procedure. Rule 33.06 provides:

33.06(1) After conducting an examination, the examining health practitioner shall prepare a written report setting out his or her observations, the results of any tests made and his or her conclusions, diagnosis and prognosis and shall forthwith provide the report to the party who obtained the order.

[14] As cited in Tanguay v. Brouse (2002) 29 C.P.C. (5th) 376 (Ont. S.C.J.) (which refers to Klassen v. College of Physicians and Surgeons of Ontario):

In Bellamy v. Johnson, the court made the distinction in roles between that of a doctor conducting a defence medical assessment under s. 105 of the Courts of Justice Act and a doctor examining a patient within the bounds of the traditional doctor-patient relationship. That distinction lies at the core of this decision. In my view, a medical examination conducted under s. 105 of the Courts of Justice Act and Rule 33 enables a health practitioner in Ontario to (a) carry out the examination and (b) report his/her findings to the adversary of the party examined without fear of successful prosecution for professional misconduct based on the absence of written consent to do either or both of (a) and (b).

I am of the view that s. 105 of the Courts of Justice Act and Rule 33 contain a complete code and procedure for court ordered medical examinations in Ontario. Neither s. 105 of the Act nor Rule 33 contain a requirement that the party being examined execute any consent, authorization or agreement presented by an examining health practitioner in advance of or during an examination.

[15] Once an order is made under Rule 33 and Section 105, the consent of the person to be examined is no longer required. The Rule and the section together are a complete code.

[16] The plaintiff argues that her consent to an initial independent medical examination or a court order requiring such an examination does not cover the preparation of a supplementary report by that same health practitioner and the plaintiff’s further consent or a further court order is required.

[17] I do not accept this position for three reasons. First, the requirement that a health practitioner who prepares a medical report may be called on to provide a supplementary report is implied in the Rules. An independent medical examination report prepared at the outset of litigation may become out of date by the time the matter gets to trial. The Rules mandate that an expert may not testify with respect to an issue unless the substance of that testimony is with respect to an issue set out in the initial report or in a supplementary report that is served not less than 30 days before the commencement of trial. Absent such a report, the health practitioner is significantly restricted in the evidence he or she can provide on the stand to assist the court.

[18] Second, in cases of supplementary reports, the court will have already ordered the plaintiff to undergo a specific examination with a specific health practitioner or the plaintiff will have consented to such an examination. From a policy perspective, it would be unwieldy and expensive to require a defendant to return to court simply to permit the health practitioner to prepare the supplementary report that he or she likely needs to do to be permitted to testify at trial. I find that such an interpretation leads to the opposite of the “just, most expeditious and least expensive determination of every civil proceeding on its merits” as required by Rule 1.04.

[19] Third, such an interpretation effectively gives the plaintiff a veto over the introduction of evidence from a health practitioner whom the court has already found is appropriate. This does not just “level the playing field”, as was suggested. In such a scenario, the defendant would be faced with the choice of hiring a new health practitioner acceptable to the plaintiff with that attendant expense, or going back to court for a further order allowing his or her health practitioner of choice to prepare the a supplementary report.

Costs

[20] The defendants have succeeded on their motion and are entitled to costs. Reviewing both parties’ costs outlines, I find the all-inclusive sum of $3,000 to be fair and reasonable in the circumstances of this motion. The plaintiff shall pay the defendants the sum of $3,000 within 30 days of the date of this decision.

Master Jolley Date: 21 August 2018