Court File and Parties

COURT FILE NO.: 1756-15 DATE: 201902 25 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Ayessha Lakhani Plaintiff – and – Ernestine West and The Personal Insurance Company Defendants

Counsel: A. Murray, for the Plaintiff S. Slater, for the Defendant, The Personal Insurance Company

HEARD: February 20, 2019

McARTHUR, M.D., J

Endorsement

Background

[1] The plaintiff was injured in a motor vehicle accident in Windsor, Ontario on September 2, 2013. A statement of claim was issued on August 26, 2015 and included claims for physical and psychological injuries.

[2] At the February 16, 2018 assignment court, the case was set for trial at the sittings set to commence May 6, 2019.

[3] The defendant, The Personal Insurance Company, brings this motion dated January 14, 2019 for an order compelling the plaintiff to attend a defence medical examination with a psychiatrist on March 9, 2019.

The Issue

[4] The issue is whether the court should make an order pursuant to s. 105 of the Courts of Justice Act for the plaintiff to undergo a medical assessment by a psychiatrist. Rule 33.02 of the Rules of Civil Procedure also permits the court to specify the time, place and purpose of the examination as well as costs and other matters as are just.

Factual Background

[5] On September 2, 2013, the plaintiff’s vehicle was struck from behind by the defendant West’s vehicle. The plaintiff sustained injuries and has been treated by numerous health and medical professionals since. The steps in the action have proceeded in the usual course as expected.

[6] At the February 16, 2018 assignment court, the action was set for trial at the sittings to commence May 6, 2019.

[7] By early 2018, the plaintiff had provided the defendants reports that detailed, amongst other things, the psychological impairments and effects upon the plaintiff.

[8] The continued examination by the defendant of the plaintiff occurred on July 3, 2018 by teleconference attendance since the plaintiff is now residing in Winnipeg.

[9] By letter dated July 18, 2018, the plaintiff’s counsel responded directly to the defendant’s suggestion of an adjournment suggestion of the pretrial set for December 7, 2018. The plaintiff’s counsel was agreeable but acknowledged and pointed out the very specific protocols of the court that pre-trials will only be scheduled within 90 days of trial under very limited circumstances. Plaintiff’s counsel reiterated a request for a timetable of the delivery of the expert reports pursuant to r. 53.03(2.2).

[10] In August of 2018, the defendant’s counsel had notified plaintiff’s counsel that arrangements would be made for medical examinations of the defendant. The plaintiff was unavailable during large parts of September, October and into November. On November 28, 2018, a medical examination of the plaintiff was conducted by Dr. Lang, a physiatrist.

[11] The pre-trial conference was conducted on December 7, 2018 and the plaintiff was available by teleconference. In the defendant’s pretrial conference memorandum, the defendant outlined a request for a defence psychiatric examination. At the pretrial, defendant’s counsel indicated that she would prepare a timetable for delivery of reports if the mediation was unsuccessful. The judge noted that the admissibility of the reports may be an issue for the trial judge.

[12] In this case, a defence psychiatric examination was reasonable. The plaintiff had suffered from her injuries and more recently became unable to work. She receives only minimal income. Defendant’s counsel had wanted to avoid incurring the expenses in advance of mediation scheduled for February 28, 2019 on which I will comment later.

[13] By letter dated January 9, 2019, the defendant’s counsel advised of the defence medical examination now in issue. The defendant had arranged February 2, 2019 for the medical examination. That medical examination is now requested for March 9, 2019. The plaintiff, quite properly, was not in a position to consent to the examination out of legitimate concern that the trial date could be compromised in view of r. 53.03 that requires expert reports be served on the other party 90 days before the pretrial and 60 days before pretrial for responding expert reports.

Analysis

[14] I find that the fair conduct of this litigation would require an assessment and opinion of a psychiatric expert by the defendant. The absence of a report may well lead to the psychiatric position of the plaintiff to go unchallenged, especially where this aspect of the plaintiff’s claim has more recently become more substantial.

[15] Nevertheless, Rule 53 requirements remain to be considered. Justice Leitch in Castello v. Safa, 2015 ONSC 4122, dealt with a situation where the defendant’s assertions about the stakes being raised in the lawsuit were considered. In that case, the plaintiff had long-relied on a single medical expert, a physiatrist. The plaintiff’s injuries and substantial inabilities had been long-known by the defendant and the plaintiff had not been working for almost three years earlier. Justice Leitch declined to order the medical examination. The Castello v. Safa situation is not quite the case as here where a material change in the plaintiff’s circumstances recently arose and was not reasonably contemplated otherwise.

[16] To his credit, plaintiff’s counsel was not only cognizant of the issues and applicable rules but also of the practical management aspects in relation to the court functioning. The conduct of the plaintiff here is a good example of a best practice in these situations. As has been observed in many recent cases at all levels, the days of the culture of complacency are over. It cannot be overstated and emphasized that it is the shared responsibility of all parties and the court to take an active role in the efficient management of cases before the court.

[17] Justice Grace has also recently observed in Ismail v. Ismail, 2018 ONSC 6489 that an inflexible approach to the rules is undesirable and a too casual approach fosters a culture of complacency. The balanced perspective must not be lost. However, where expert reports are involved, as Justice Grace has observed, late served reports often result in unnecessary adjournments of long-awaited trials that disappoint, if not devastate, anxious parties. The message should be loud and clear: a proactive management must be the shared responsibility of all participants.

[18] From a broader review of all of the materials filed, I find the defendant had otherwise proceeded in a competent, prudent and capable manner throughout. The request of the defendant as to the psychiatric examination is legitimate. The request has also not been done for tactical or improper reasons nor is it overreaching.

[19] Although I do acknowledge that the defendant did not consent to the matter being placed on the trial list, this is not an excuse nor a factor to be relied on. Rather, the management of the action becomes the shared responsibility of all parties to work within the framework and parameters of the rules to effectively move the action to its hearing, particularly once an action is set down for trial.

[20] As to the saving disbursement and expert costs, this may be laudable at times, however, as an action proceeds and especially once a case is placed on the trial list, such concerns will not put trial management priorities on hold. The best-before-date for frugality clearly expires once a trial date is set. All parties and counsel should then be aware that, despite good intentions including mediation efforts, trial management responsibilities come to the fore and must be proactively advanced.

Disposition

[21] In these circumstances and for these reasons, the plaintiff shall attend the medical examination as scheduled on March 9, 2019 with Dr. Alatoyinbo at his office. The report of Dr. Alatoyinbo must otherwise be served upon the plaintiff on or before March 19, 2019.

[22] The defendant shall make all arrangements and pay all reasonable travel, accommodations and related expenses and otherwise reimburse the plaintiff forthwith.

[23] As to costs, even though the defendant has been successful on the motion, this ought not in any way reflect adversely on the plaintiff who has diligently conducted matters and desires to proceed with the trial as scheduled in May. I have received and reviewed the bill of costs of each of the parties to this motion. The responsibility of defendant’s decision should be laid squarely at the feet of the defendant. In view of this, this defendant shall pay costs to the plaintiff in the amount of $3,500.

[24] This decision has been made with the hope, if not expectation, any delay of the scheduled trial will be avoided. The admissibility of any defence reports will, in any event, be the subject of the ruling of the trial judge.

“Justice M.D. Mc Arthur” Justice M.D. McArthur Released: February 25, 2019