Court File and Parties

COURT FILE NO.: CV-14-120669-00 DATE: 20181016 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

TAN DUC NGO and PHUONG ANH TRAN Plaintiffs – and – MARIO L. NEVES, FR PAVING CO. LTD., FORD CREDIT CANADA LTD., CELLINO CONTRACTING LIMITED, JACK R. COX, 747871 ONTARIO LIMITED operating as INDEPENDENT GLASS 2000 and TD HOME AND AUTO INSURANCE COMPANY Defendants

Counsel: Alden M. Dychtenberg and Richard H. Shekter, for the Plaintiffs Alan L. Rachlin and Jeffrey A. Small, for the Defendants Mario L. Neves, FR Paving Co. Ltd., Ford Credit Canada Ltd.

HEARD IN OSHAWA: October 9, 2018

REASONS FOR DECISION

EDWARDS j. :

Overview

[1] The scales of justice are typically evenly balanced, demonstrating that when the parties enter a courtroom everyone is playing off an even playing field. In this case, the Plaintiff complains of numerous injuries suffered in a motor vehicle accident which occurred on October 11, 2013. Amongst the various injuries that will be in dispute at trial is the suggestion that the Plaintiff has suffered an organic concussive brain injury.

[2] The defence seeks to level the playing field by obtaining a stay of the action until such time as the Plaintiff attends and completes a defence medical examination with a neuropsychologist.

The Facts

[3] In the normal course the defence would be entitled to a defence medical that addresses whether the Plaintiff has suffered a brain injury. In fact, a neuropsychological assessment of the Plaintiff was agreed to and partially conducted by Dr. Zakzanis. The Plaintiff initially undertook an assessment on December 13, 2016, but the assessment could not be completed as the Plaintiff complained of a headache. A further assessment was undertaken by Dr. Zakzanis on January 6, 2017, but had to be terminated after 90 minutes. On January 25, 2017, the Plaintiff again attended an assessment with Dr. Zakzanis that was concluded after approximately two hours as the Plaintiff was complaining of headaches and fatigue.

[4] The Defendants have not been able to complete a neuropsychological assessment with Dr. Zakzanis because of the inability of the Plaintiff to complete that assessment.

[5] As a result of the Plaintiff’s inability to complete a full neurological assessment with Dr. Zakzanis, a motion was brought to compel the Plaintiff’s re-attendance with Dr. Zakzanis. The motion was heard by Di Luca J., and on October 13, 2017 Di Luca J. released Reasons denying the Defendants’ motion. In his Reasons at paragraph six, Di Luca J. stated:

This case is a close call. However, for the reasons set out below, I am not prepared to order that Mr. Ngo participate in and complete the proposed neuropsychological assessment. On the basis of the evidence before me, I find that given Mr. Ngo’s limitations and the documented risk of self harm, further neuropsychological testing will likely be futile and will unnecessarily place Mr. Ngo’s health at risk.

[6] While the Defendants’ motion to compel the Plaintiff to re-attend to complete a neuropsychological assessment with Dr. Zakzanis was unsuccessful, Di Luca J. did however indicate at paragraph 29 that if the Plaintiff’s condition improved he might be able to complete the testing at a later date. As such, at paragraph 29 Di Luca J. stated:

…As such, I am prepared to dismiss the motion without prejudice to the Defendants raising the issue again on the basis of further evidence relating to Mr. Ngo’s ability to successfully complete the assessment without an undue risk of self-harm…

[7] In making the order that he did, Di Luca J. took into account the Plaintiff’s undertaking to not seek a neuropsychological assessment in support of his ultimate conclusion denying the Defendants’ motion. Di Luca J. noted that the Plaintiff’s undertaking provided him some relief from the potential unfairness that might otherwise arise as a result of the Defendants’ inability to conduct a defence neuropsychological assessment with Dr. Zakzanis.

The Present Motion

[8] The motion before me brought by the moving Defendants seeks an order staying the Plaintiff’s action until such time as the Plaintiff is able to complete a neuropsychological assessment. It is worth noting that in seeking the stay that they do, the Defendants had previously sought leave to appeal the decision of Di Luca J. The leave to appeal application was dismissed.

Position of the Moving Defendants

[9] The Defendants argue that because the Plaintiff’s future prognosis may be quite different depending on the nature of his medical issues, it follows that the value of the Plaintiff’s claim may vary significantly depending upon the cause of his ongoing problems.

[10] Fundamentally, the Defendants argue that it would be an injustice to the Defendants if this proceeding was allowed to continue to trial without the Defendants having the ability to conduct a neuropsychological assessment of the Plaintiff, which would determine whether the Plaintiff’s ongoing problems are organic, psychological, or malingering.

[11] The Defendants argue that the Plaintiff will not suffer any injustice if the matter is stayed until he does complete a neuropsychological assessment as he continues to receive disability benefits, and because he has access to significant accident benefits given that he has received a catastrophic designation within the statutory accident benefit schedule.

Position of the Plaintiff

[12] Plaintiff’s counsel notes that when this matter was argued before Di Luca J., the Defendants did not seek a stay of the proceedings at that time. As such, counsel for the Plaintiff argues that in essence what the Defendants are now attempting to do is re-litigate the issue that was determined by the decision of Di Luca J.

Analysis

[13] Before I begin my analysis, it is important to emphasize that Di Luca J. did not deny the Defendants for all time an opportunity to have the Plaintiff attend a neuropsychological assessment. Rather, the Reasons of Justice Di Luca make it quite clear in paragraph 29 that the Defendants could renew their motion requiring the Plaintiff to attend a neuropsychological assessment, if there was “further evidence” that would demonstrate the Plaintiff’s ability to successfully complete the neuropsychological assessment without “an undue risk of self-harm”.

[14] What the Defendants sought in their motion before Di Luca J., was an order that would effectively balance the playing field between the parties as it relates to the determination of whether the Plaintiff has suffered an organic concussive brain injury and to test whether the Plaintiff’s problems are organic, psychological, feigned or some combination thereof. There is no dispute that a neuropsychological assessment is something that will provide the court with considerable assistance, in terms of making a determination as it relates to the question of whether or not the Plaintiff has suffered an organic concussive brain injury that was caused by the subject accident.

[15] The evidence at the time when this matter was heard before Di Luca J. left him with a real concern that if he had ordered the Plaintiff to attend a further neuropsychological assessment, that the Plaintiff’s health could have been put at risk.

[16] If evidence becomes available that demonstrates the Plaintiff’s health would not be put at risk, then the order of Di Luca J. contemplated that the defence could renew its motion and that such motion would likely be met with a positive reception by the court.

[17] The motion before me does not put any evidence before the court as it relates to the Plaintiff’s present state of health, in terms of his ability to complete a full defence neuropsychological assessment. To seek an order that would effectively stay the action, in my view is nothing more than an end around the order of Di Luca J. There is undoubtedly some element of unfairness to the defence in not allowing the defence to have a neuropsychological assessment. The fact remains, however, this issue has been determined by Di Luca J. and he has made the order that he has made. The defence motion seeking a stay of the action is dismissed.

[18] I am hearing this motion in my capacity as the case management judge. While I am dismissing the Defendants’ motion seeking a stay, that does not complete the matter. This case is close to being ready for trial. If this matter proceeds to trial, there is a lingering question as to how the Plaintiff will be able to testify given his present medical condition. If the Plaintiff is going to be called as a witness and thereafter subject to cross-examination, one may question how the Plaintiff can submit himself to what undoubtedly will be a period of examination in-chief and cross-examination that would exceed the time required for a neuropsychological assessment. If the Plaintiff can testify at trial, one can rhetorically question why he cannot attend a neuropsychological assessment.

[19] These are all concerns at this time that in my view need to be addressed before this case proceeds to trial. I am therefore ordering that the Plaintiff, through his counsel, makes arrangements for the relevant treating doctor(s) to provide a report(s) that addresses the following issues:

a) the Plaintiff’s present ability or inability to attend a neuropsychological assessment; b) address why the Plaintiff cannot attend a neuropsychological assessment; c) when realistically the Plaintiff may be able to attend a neuropsychological assessment; d) the Plaintiff’s ability or inability to testify at trial; and e) address why the Plaintiff can attend a trial and not attend a neuropsychological assessment.

[20] The Plaintiff has been successful resisting the Defendants’ motion seeking a stay of the action, and as such the Plaintiffs are prima facie entitled to their costs of this motion. I encourage counsel to resolve the issue of costs. If a resolution cannot be reached, counsel are to submit their written costs submissions to me through my assistant Diane Massey, Diane.Massey@ontario.ca, limited to two pages in length and to be received within 15 days from the date of receipt of these Reasons. If written submissions are not received within this time frame, the court will assume that the parties have agreed on the costs of the motion.

Justice M.L. Edwards Released: October 16, 2018

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: TAN DUC NGO and PHUONG ANH TRAN Plaintiffs – and – MARIO L. NEVES, FR PAVING CO. LTD., FORD CREDIT CANADA LTD., CELLINO CONTRACTING LIMITED, JACK R. COX, 747871 ONTARIO LIMITED operating as INDEPENDENT GLASS 2000 and TD HOME AND AUTO INSURANCE COMPANY Defendants REASONS FOR DECISION Justice M.L. Edwards Released: October 16, 2018