COURT FILE NO.: C-324/15

DATE: September 24, 2018

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Judith Marlen Fricke, Plaintiff

AND: SSQ, Life Insurance Company Inc., Defendant

BEFORE: Barnes J.

COUNSEL: Mark S. Grossman, for the Plaintiff

Tracey L. Hamilton, for the Defendant

ENDORSEMENT

Motion to quash

[1] The defendant, SSQ Life Insurance Company, Inc. (“SSQ”), brings a motion to quash the witness summons of Dr. Ryan Williams. The motion is granted. Use of the evidence obtained from the examination of Dr. Williams, which took place on January 26, 2017, is prohibited forthwith.

Background Facts

[2] The plaintiff, Judith Marlen Fricke (“Ms. Fricke”), was employed by Grand River Hospital (the Hospital) for 17 years. As an employee of the hospital she was covered by group insurance offered by SSQ. Ms. Fricke alleges that in January 2017 she became totally disabled as defined by an insurance policy and thus entitled to receive Long Term Disability (“LTD”) payments. She applied to SSQ for LTD benefits.

[3] SSQ took almost a year to assess her claim but paid Ms. Fricke monthly disability benefits in the interim. SSQ concluded that Ms. Fricke was not disabled as per the policy and not entitled to LTD benefits. Ms. Fricke’s appeal was unsuccessful. SSQ and Ms. Fricke agreed to resolve the dispute via the Medical Appeals Process (“MAP”) prescribed by the insurance policy. Under the MAP process both parties agreed to the appointment of an independent assessor; to be bound by the decision of the assessor and the outcome of the MAP process; and waived their right to appeal the outcome.

[4] The independent assessor selected was Dr. Ryan Williams. As part of the MAP process, Dr. Williams concluded that Ms. Fricke was not totally disabled. On the basis of this conclusion, SSQ refused to pay Ms. Fricke any LTD benefits.

[5] Ms. Fricke has commenced an action against SSQ for payment of LTD benefits pursuant to the insurance policy. The action is premised on allegations SSQ breached its contractual obligations by declining to pay LTD benefits.

[6] SSQ has brought a motion seeking summary judgment submitting that there is no genuine issue requiring a trial because by agreeing to the terms of the MAP agreement, Ms. Fricke waived her right to initiate any proceeding in the Courts of Ontario.

[7] In preparation of her defence of the summary judgment motion, Ms. Fricke summoned and cross-examined Dr. Williams. SSQ seeks an order quashing the subpoena to witness and prohibiting the use of Dr. William’s testimony at the summary judgment motion and any other proceeding in this action.

Positions of the Parties

[8] SSQ submits that Ms. Fricke’s cross-examination of Dr. Williams contravenes Rule 39.03 because the cross-examination is irrelevant; was conducted without leave of the court; is an effort to use the rule to insulate an expert from providing a report; and constitutes an improper attempt to use the rule as an economic alternative to hiring an expert.

[9] Ms. Fricke submits that the cross examination of Dr. Williams is not in contravention of Rule 39.03 because Dr. Williams testimony is relevant and was not adduced to elicit expert testimony. Instead, Ms. Fricke argues that Dr. Williams was asked questions to clarify the process he utilised to conclude that Ms. Fricke did not have an LTD and to determine what test for LTD Dr. Williams used in arriving at his conclusion. She contends that Rule 39.03 was not used to insulate an expert from providing a report or as an economic alternative to hiring an expert because Dr. Williams had already submitted an expert report.

Analysis

[10] There are multiple reasons to quash the summons and exclude the evidence. I deal with each of these in turn. Rule 39.03 grants a party a prima facie right to examine a person, who has relevant evidence to give, before a pending hearing for the purpose of having his or her evidence available for that hearing: Rule 39.03 (1) – (3). This Rule applies to expert and lay witnesses alike.

[11] However, the Rule cannot be used to insulate an expert from providing an expert report: Niagara-on-the-Lake Assn. of Ratepayers v Niagara on the Lake (Town), 2003 34791 (ON SC), [2003] 63 O.R. (3d) 568 (Sup. Ct. J.) at para. 32. The use of the Rule in this manner is the use of the Rule for an ulterior or improper purpose. This is an abuse of process and a basis for quashing the summons and excluding any evidence obtained pursuant to the summons.

[12] A witness who is qualified, by education or experience in a subject area, to provide a trier of fact with information outside the trier’s knowledge and experience is permitted to provide an opinion to assist the trier in coming to his or her own conclusion. Such a witness is an expert witness: See Graat v. The Queen, 1982 33 (SCC), [1982] 2 S.C.R. 819; R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9; and R. v. Abbey, 1982 25 (SCC), [1982] 2 S.C.R. 24.

[13] An expert is required to provide fair, objective, and non-partisan opinion evidence related only to matters within their area of expertise: Rule 4.1.01(1); White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at para. 30. Rule 53.03 sets out in detail the proper form and content of expert reports. All parties who intend to rely on expert testimony at trial are required to comply with Rule 53.03 and serve their expert’s report on the other party in a timely fashion (90 days before the pre-trial conference, and 60 days before a pre-trial conference for a responding expert). As part of the report, experts must acknowledge that they understand their duties and obligations to the court.

[14] The medical opinion from Dr. Williams about the nature and impacts of Ms. Fricke’s injuries is evidence which renders an opinion on the cause, effect and prognosis of Ms. Fricke’s injuries. It is opinion evidence because it is outside the knowledge and experience of the trier of fact.

[15] Rule 53.03 sets out the requirements for introducing expert reports at trial. The application of Rule 53.03 is not limited to trials. It applies to expert opinions in affidavits filed in support of applications: Thompson v. Ontario (Attorney General), 2011 ONSC 2023, 106 O.R. 176 at para. 70. There is no reasonable basis to exclude motions from this requirement. Rule 53.03 also applies to expert opinion evidence tendered in motions.

[16] All experts retained by the parties must comply with Rule 53.03. Non-party experts and participant experts are not required to comply with Rule 53.03. An expert witness is a participant witness when: 1) the expert’s opinion is based on his or her own observation of the events and or participation in the events or 2) the expert “formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events”: Westerhof v. Gee Estate, 2015 ONCA 206, 124 OR (3d) 721 at para. 59- 64, 69-70.

[17] Dr. Williams did not examine or treat Ms. Fricke. He did not observe or participate in any events involving Ms. Fricke. His opinion was based on an assessment of the observations and conclusions of other experts. Thus Dr. Williams is not a participant witness. He has not been retained by a non-party to the action. In fact, he has not been retained by either party to provide an opinion in this proceeding or at trial. Therefore, requirements of Rule 53.03 applies to Dr. Williams’ opinion evidence.

[18] The party seeking to quash the summons must demonstrate that the evidence sought is not relevant to the motion or that the underlying motion constitutes an abuse of process: Re Canada Metal Co. Ltd. et al. and Heap et al., 1975 675 (ON CA), [1975] 7 O.R. (2d) 185 (C.A.), 54 D.L.R. (3d) 641; Drennan v. 2270573 Ontario Inc., 2012 ONSC 4229, [2012] O.J. No. 3635. Once challenged, the party seeking to examine the witness must show that the evidence sought is relevant to the motion, and that the witness can give that evidence: Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co., 1995 7258 (ON SC), [1995] 27 O.R. (3d) 291 (Ont. Gen Div.). The evidence provided on the motion may be given by affidavit unless a statute or the rules provide otherwise: Rule 39.01(1).

[19] Rule 39.03(1) is subject to Rule 39.02(2) which prohibits a party who has already conducted a cross-examination on an affidavit delivered by an adverse party from conducting an examination under Rule 39.03 without the consent of the adverse party or leave of the court.

[20] Ms. Fricke failed to comply with Rule 39.02. Ms. Fricke cross examined SSQ representative Michael Bird, on his affidavit, on November 24, 2016. Ms. Fricke examined Dr. Ryan Williams was examined on January 26, 2017. This examination took place without the consent of SSQ or with leave of the court. SSQ did not take issue with Ms. Fricke’s explanation that Dr. Ryan Williams was scheduled to be examined prior to Michael Baird on November 23, 2016, but due to a misunderstanding he did not appear. This is a technical breach. However, it was open to Ms. Fricke to seek leave prior to January 26, 2016.

[21] Relevant evidence should not be excluded on technical grounds unless the probative value to the party seeking admission outweighs the prejudicial effects to the party opposing the admission of the evidence: Beasley v. Barrand, 2010 ONSC 2095, 101 O.R. (3d) 452, leave to appeal refused [2010] O.J. No. 6319 (Div. Ct.). In this case, I have concluded that the evidence elicited is not relevant and therefore strict compliance with the Rules is warranted. Leave is refused.

[22] Ms. Fricke examined Dr. Williams for the purpose of having his testimony available for SSQ’s summary judgment motion. Ms. Fricke must demonstrate that Dr. Williams has evidence to give that is relevant to SSQ’s summary judgment motion and that Dr. Williams is in a position to provide the relevant evidence. Ms. Fricke has failed to satisfy this evidentiary threshold. Therefore, the summons and examination of Dr. Williams was a “fishing expedition” and an abuse of process: Lauzon v Axa Insurance (Canada), 2012 ONSC 6730 at paras. 27-28.

[23] The reference point in assessing relevance in this case is the summary judgment motion: Transamerica Life Insurance Co. of Canada, supra. The summary judgment motion raises the issue of whether there is a genuine issue requiring a trial because by agreeing to resolve the dispute under the MAP process, Ms. Fricke has waived her right to initiate any proceeding in the Courts of Ontario, and thus can take no further action.

[24] Ms. Fricke’s action is grounded on an alleged breach by SSQ to honour its contractual obligation to pay Ms. Fricke LTD benefits under the insurance policy. Ms. Fricke’s action is about her entitlement to LTD benefits. The parties agreed to participate in the MAP process as per the insurance policy. Pursuant to the MAP process, Dr. Williams provided an expert opinion on whether Ms. Fricke has an LTD as defined by the insurance policy. Dr. Williams concluded that Ms. Fricke does not have an LTD. This forms the basis for SSQ’s decision not to pay Ms. Fricke LTD benefits.

[25] SSQ’s statement of defence and summary judgment motion are based on the premise that Ms. Fricke is not entitled to sue for LTD benefits because she waived her entitlement to sue when she agreed to the MAP process. The summary judgment motion is grounded in Ms. Fricke’s entitlement to sue for LTD benefits, not Ms. Fricke’s entitlement to LTD benefits.

[26] Dr. Williams’ evidence relates to whether Ms. Fricke has an LTD and in effect, her entitlement to LTD benefits. Dr. Williams’ evidence does not address Ms. Fricke’s entitlement to sue for LTD benefits. In addition, Dr. Williams is not qualified to give evidence relevant to the issue of whether Ms. Fricke’s agreement to participate in the MAP process constitutes a waiver which prohibits her from taking any action for LTD benefits in the Courts of Ontario. Dr. Williams is not in a position to provide any evidence relevant to Ms. Fricke’s entitlement to sue for LTD benefits.

[27] The issue of relevance is one of a number of issues raised by the parties. My finding that the evidence is irrelevant resolves this motion on a final basis. I do not see a path to admitting irrelevant evidence.

[28] Even if the evidence of Dr. Williams were relevant, the process by which the evidence was obtained constitutes an abuse of process. SSQ’s motion is grounded on a challenge on Ms. Fricke’s ability to sue based on her agreement to participate in the MAP process. SSQ submits that this is a legal question and Dr. Williams has no relevant evidence to give. SSQ did not request an expert report from Dr. Williams.

[29] Ms. Fricke submits that she did not intend to illicit opinion evidence from Dr. Williams. The intent was to illicit evidence of a factual nature from Dr. Williams specifically the procedure he followed in assessing Ms. Fricke. The policy requires an assessment of whether Ms. Fricke was totally disabled. Ms. Fricke explains that “total disability” is a legal question and the test is established by the Supreme Court of Canada in Paul Revere Life Insurance v. Sucharov, 1983 168 (SCC), [1983] 2 SCR 541. Ms. Fricke submits that the examination was aimed at eliciting evidence on the test Dr. Williams applied in concluding that Ms. Fricke was not totally disabled.

[30] The examination of Dr. Williams extended beyond the narrow parameters Ms. Fricke has described. Ms. Fricke elicited opinion evidence on the cause, effects and prognosis of Ms. Fricke’s injuries. Ms. Fricke elicited opinion evidence and was required to comply with Rule 53.03.

[31] Ms. Fricke’s assertion that she obtained some evidence of a factual nature does not detract from the fact she used Rule 39.03 to obtain expert opinion evidence without complying with Rule 53.03. She used Rule 39.03 as a way around the preparation of the expert report required by Rule 53.03. Ms. Fricke intended to use this evidence to defend the summary judgment motion and to cross examine Dr. Williams at trial if the opportunity presented itself. In effect, Ms. Fricke improperly used Rule 39.03 to elicit opinion evidence as a mechanism to avoid compliance with Rule 53.03. This improper use constitutes an abuse of process: Niagara-on-the- Lake, supra.

Conclusion

[32] Therefore, the summons for Dr. Williams is quashed and Ms. Fricke is prohibited from using the evidence obtained from the examination of Dr. Williams.

[33] Should the parties be unable to agree on costs a cost outline of no more than two pages shall be provided to the Court within 30 days.

Barnes J.

Date: September 24, 2018

COURT FILE NO.: C-324/15

DATE: September 24, 2018

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Judith Marlen Fricke, Plaintiff

AND:

SSQ, Life Insurance Company Inc., Defendant

BEFORE: BARNES J.

COUNSEL: Mark S. Grossman, for the Plaintiff

Tracey L. Hamilton, for the Defendant

ENDORSEMENT

RE: MOTION TO QUASH

Barnes J.

DATE: September 24, 2018