Court File and Parties

COURT FILE NO.: 992-13 DATE: 2019-03-15 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

KAYLA ANNETTE JOANNA STETLER and BRANDON CHARLES GILBERT STETLER by their Litigation Guardian GERALD CHARLES STETLER, GERALD CHARLES STETLER, CHARLOTTE ROSE ADA CECILIA RATCH in her personal capacity and as TRUSTEE FOR THE ESTATE OF CHARLOTTE ROSE STETLER, ERIC DANIEL RATCH, CRAIG ANTHONY RATCH, BRITTANY JESSICA CHARLOTTE NICOLE STETLER, AVREY CECILE WILSON by her Litigation Guardian CARRIE-LYNN ROZELLA WILSON, CARRIE-LYNN ROZELLA WILSON, KYLE MICHAEL WILSON, KATELYN EMILY WILSON, COURTNEY BRIANNE WILSON and BRIAN KEITH STETLER Plaintiffs

– and –

TAMMY CHRISTMAS Defendant

COUNSEL: Jim Virtue, counsel for the Plaintiffs Todd J. McCarthy, counsel for the Defendant

HEARD: March 11, 2019.

THOMAS, RSJ.:

The Application

[1] The Defendants move pursuant to s. 15 of the Courts of Justice Act and r. 33 of the Rules of Civil Procedure to compel the Plaintiff (Kayla Annette Joanna Stetler) to attend at an independent medical examination with Dr. Robyn Stephens, a neuropsychologist on April 11 and 12, 2019.

[2] The Plaintiff was born on March 29, 1998. On June 20, 2011 the Plaintiff was 13 years of age and was a passenger in a vehicle driven by her grandmother, Charlotte Rose Stetler.

[3] The Defendant crossed the centre line of the roadway colliding head on with the Plaintiff vehicle. The driver, Charlotte Rose Stetler was killed and the Plaintiff suffered injuries. Liability is admitted by Mr. McCarthy, Defendant’s counsel.

[4] The statement of claim was issued May 29, 2013.

[5] The statement of defence was delivered May 23, 2014.

[6] The matter was listed for trial April 21, 2017. A pre-trial was held April 20, 2018 with a trial date set of October 9, 2018.

[7] The Plaintiff seeks $2,000,000.00 in damages.

[8] The Plaintiff’s physiatrist describes her injuries as follows: i) Right transverse comminuted fracture in the midshaft of the femur with overlapping deformity measuring approximately 4.5 cm.; ii) Right nondisplaced fracture in the diametaphysis of the second metatarsal bone; iii) Bilateral knee pain of a musculoligamentous etiology; iv) Neck and upper parascapular pain of a musculoligamentous etiology (WAD II); v) Mid and low back pain of a musculoligamentous etiology; vi) Post traumatic stress reaction; vii) Mood dysfunction; viii) Sleep dysfunction; ix) Mild traumatic brain injury; x) Chronic pain syndrome.

[9] On June 8, 2018 Plaintiff’s counsel had his client assessed by Dr. Tamara Biederman, a psychologist (“Biederman”).

[10] Plaintiff’s counsel inadvertently failed to serve the report and only did so on September 27, 2018 after prompting by Defendant’s counsel. It had become clear to the defence that Biederman’s name was on the witness list but they had no report.

[11] On October 5, 2018 counsel agreed to an adjournment of the trial to permit the defence to respond to the Biederman report. Mr. McCarthy, Defendant’s counsel, wrote to Mr. Virtue, Plaintiff’s counsel, on October 2, 2018 advising that an additional term of the adjournment was that the Plaintiff would attend for a defence psychological examination.

[12] On October 9, 2018 Mr. McCarthy sent correspondence advising that a neuropsychological assessment had been scheduled in Toronto for the Plaintiff on April 11, 2019 and April 12, 2019 from 9:00 a.m. to 5:00 p.m. each day. On October 15, 2018 Mr. Virtue advised that there was no agreement that there would be a neuropsychological assessment and further that it was unnecessary.

[13] Biederman authored a further report dated October 15, 2018.

[14] At an Assignment Court in November, 2018 a fresh pre-trial was scheduled for May 31, 2019 with the trial beginning on September 9, 2019.

Positions of the Parties

[15] The moving Defendants maintain that they are facing a claim which includes a pleaded “minor head injury” and that there are significant future care costs claimed. They believe that a neuropsychological report is necessary to purposefully defend the claim. They point out that this whole issue started with the late service of the Plaintiff’s psychological expert’s report. The trial would not have been adjourned otherwise.

[16] The Plaintiff acknowledges that the defence is entitled to a psychological assessment but not a neuropsychological assessment. It is pointed out that no expert in the proceeding suggests such an assessment is necessary or beneficial. The Plaintiff’s position is that mood and pain issues are driving her deficits and not cognitive impairment, and as such, a neuropsychological assessment is of no benefit. It is suggested that the assessment demanded is long and intensive and is scheduled at a time when the Plaintiff is beginning exams in her final year of college.

Analysis

[17] This claim emanates from a fatal accident in 2011. The Plaintiff was 13 years of age. She is now 21 and completing college. Both counsel acknowledge that this matter needs to proceed as scheduled.

[18] I am concerned that a defence neuropsychological assessment will simply prompt Plaintiff’s counsel to respond in kind and abort the schedule presently set.

[19] I have considered the principles applicable to compelling further medical assessments as described by Brown J. at para. 16 of Bonello v. Taylor, 2010 ONSC 5723. The defence in these circumstances is entitled to a psychological assessment. The Court, however, needs to do everything it can to complete this matter on the set dates. Further, the assessment as proposed imposes an undue burden on the Plaintiff beyond its value to the proceeding (Bonello, para. 16).

[20] As mentioned, Mr. Virtue is not opposed to a psychological assessment nor is he opposed to Dr. Robyn Stephens providing that assessment absent the extensive two day testing.

Conclusion

[21] The Application to compel a neuropsychological assessment is dismissed. The Plaintiff will attend a defence psychological assessment. It will be conducted on a single day at the offices of a psychologist chosen by the defence. The assessor may be Dr. Robyn Stephens.

[22] I asked counsel to provide me with their costs submissions after the hearing. Consistent with those submissions, costs will be left to be considered by the trial judge in the cause.

“Regional Senior Justice B. G. Thomas” Regional Senior Justice B. G. Thomas

Released: March 15, 2019.

COURT FILE NO.: 992-13 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: KAYLA ANNETTE JOANNA STETLER and BRANDON CHARLES GILBERT STETLER by their Litigation Guardian GERALD CHARLES STETLER, GERALD CHARLES STETLER, CHARLOTTE ROSE ADA CECILIA RATCH in her personal capacity and as TRUSTEE FOR THE ESTATE OF CHARLOTTE ROSE STETLER, ERIC DANIEL RATCH, CRAIG ANTHONY RATCH, BRITTANY JESSICA CHARLOTTE NICOLE STETLER, AVREY CECILE WILSON by her Litigation Guardian CARRIE-LYNN ROZELLA WILSON, CARRIE-LYNN ROZELLA WILSON, KYLE MICHAEL WILSON, KATELYN EMILY WILSON, COURTNEY BRIANNE WILSON and BRIAN KEITH STETLER Plaintiffs – and – TAMMY CHRISTMAS Defendant REASONS FOR JUDGMENT Thomas RSJ. Released: March 15, 2019.