Superior Court of Justice – Ontario

COURT FILE NO.: CV-11-427285

MOTION HEARD: 20190723

REASONS RELEASED: 20190809

BETWEEN:

BRIDGET MARIA-ANTONY

Plaintiff

• and-

IGOR IVASCHENKO, ENTERPRISE RENT A CAR CANADA LIMITED, SANDY HANNA and YVONNE GADALLAH BISHAY

Defendants

BEFORE: MASTER M.P. McGRAW

COUNSEL: F. D’Aquila-Kelly -for the Defendants Sandy Hanna and Yvonne Gadallah Bishay E-mail: fdaquila-kelly@beardwinter.com

M. Katzman -for the Plaintiff E-mail: mkatzman@katzmanlitigation.com

REASONS RELEASED: August 9, 2019

Reasons for Endorsement

I. Background

[1] This is a motion by the Defendants Sandy Hanna and Yvonne Gadallah Bishay (collectively, the “Defendants”) for leave to conduct a second psychiatric assessment of the Plaintiff. The Defendants seek this assessment notwithstanding that this action was set down for trial almost 4 years ago and this motion was brought 8 months after the pre-trial conference.

II. The Action, Procedural History and Expert Reports

[2] The Plaintiff was involved in two motor vehicle accidents which occurred on June 5, 2009 in Burlington and January 18, 2010 in Mississauga. The Defendants were involved in the second accident.

[3] The Plaintiff commenced this action by Statement of Claim issued on May 25, 2011 claiming general damages of $1,250,000 and special damages of $300,000. The Plaintiff alleges that she has suffered a permanent serious impairment of an important mental or psychological function due to a severe shock to her system resulting in emotional illness that has caused a dramatic change in her personality and behaviour. The Plaintiff has been treated and assessed by Dr. Tory Hoff, a psychologist and Dr. S.V. Manohar, a psychiatrist.

[4] Dr. Hoff has delivered 5 reports to Plaintiff’s counsel. In his Psychological Assessment Report dated March 15, 2013, Dr. Hoff stated that the Plaintiff’s psychological impairments are debilitating, pervasive and long lasting and that she was unable to work in part because her psychological impairments were “quite debilitating”. In his Psychological Re-Assesssment Report dated May 25, 2015, Dr. Hoff stated that his opinion remained the same except with respect to severity, diagnosing the Plaintiff with Major Depressive Disorder, Generalized Anxiety Order and Pain Disorder associated with psychological factors. He further concluded that her psychological conditions are chronic and long-lasting and leave her unable to perform any suitable employment duties. Dr. Hoff has delivered 3 additional reports dated May 23, 2016, September 24, 2017 and July 28, 2018.

[5] Dr. Manohar has delivered 5 reports to Plaintiff’s counsel. Most recently, Dr. Manohar sent letters to Plaintiff’s counsel dated June 12, 2018 (the “June 12 Letter”) and July 9, 2018 (the “July 9 Letter”, collectively with the June 12 Letter, the “2018 Letters”) which are central to this motion. In the June 12 Letter, Dr. Manohar advises that the Plaintiff’s depressive symptoms “escalated in the summer of 2017” adding:

“In my opinion she continues to suffer from Major Depressive disorder – severe- chronic – nonpsychotic with severe Pain disorder. She should be deemed permanently disabled and her prognosis to return to original level functioning is poor.”

[6] In the July 9 Letter, written after reviewing recent medical reports delivered by the Defendants, Dr. Manohar writes:

“As I mentioned earlier I am unable to separate the impact of accidents on June 05, 2009 and January 18, 2010 as she became my patient only on November 16, 2011. Reviewing my notes it is clear that the cumulative effect of both accidents has led to her permanent unemployability state. It is clear however that she had experienced symptoms after the MVA on June 05, 2009.”

[7] The Defendants have retained Dr. Zohar Waisman, a psychiatrist. Dr. Waisman has delivered 5 reports or letters and conducted an in-person assessment of the Plaintiff on October 7, 2015. In his Independent Psychiatric Assessment Report dated November 11, 2015 (the “2015 Report”), Dr. Waisman states that the Plaintiff meets the criteria for somatic symptom disorder and major depressive disorder. However, he indicates in the 2015 Report that she had her first depressive episode prior to the second accident and that her chance of recurrence is high whether or not a significant stressor occurred. Dr. Waisman also opines that the Plaintiff suffers from a chronic and biological illness which will last a lifetime.

[8] The Defendants’ motion arises directly from Dr. Waisman’s letter to Defendants’ counsel dated August 8, 2018 (the “August 8 Letter”). In the August 8 Letter, written after reviewing the 2018 Letters and other additional and updated records from the Plaintiff, Dr. Waisman advises:

“I am experiencing difficulty in commenting on the reports of Dr. Manohar, as they are dated in 2018. I last assessed Ms. Maria-Antony in 2015 and therefore, my opinions are based on my assessments at that time. In order for me to comment on his recent reports, I would need to re-assess Ms. Maria-Antony.”

[9] The Plaintiff filed her Trial Record on September 30, 2015. The parties attended To Be Spoken To Court on February 24, 2016 and consented to a pre-trial date of September 12, 2018 and a four-week trial commencing November 26, 2018. The parties attended the pre-trial conference on September 12, 2018 before Justice Archibald and consented to an adjournment of the trial to November 9, 2020 for 32 days. The parties agreed that 4 weeks was insufficient.

[10] The Defendants did not raise the possibility of an additional psychiatric assessment until after the attendance at the pre-trial conference on September 12, 2018 and did not reserve their rights to seek one. The Defendants brought this motion on May 21, 2019.

III. The Law and Analysis

Should the Defendants Be Granted Leave?

[11] Rule 48.04(1) provides that any party who has set an action down for trial or who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court. It is not disputed that the Defendants require leave to bring this motion.

[12] The case law, much of which arises in the context of expert reports, reflects the court’s efforts to balance numerous factors when exercising its discretion to grant leave under Rule 48.04(1). These factors include trial fairness; prejudice to the parties (including prejudice arising from a potential adjournment of trial or an imminent trial date which provides insufficient time for additional steps such as responding reports); delay; certainty and the effect of the moving party having consented to set the matter set down for trial and/or agreed to pre-trial and trial dates. Underlying these efforts are two divergent approaches:

i.) the more established test which requires the moving party to demonstrate that there has been a substantial or unexpected change in circumstances;

ii.) the broader more liberal and flexible approach which does not require the finding of a substantial or unexpected change in circumstances but rather that the court may grant leave and make the order that is just in the circumstances where the interlocutory step is necessary in the interests of justice considering all of the circumstances of each case and Rule 1.04(1)(BNL Entertainment Inc. v. Ricketts, 2015 ONSC 1737 at para. 12).

[13] The substantial and unexpected change test favours predictability and certainty and assumes that when a case is set down for trial it is ready for trial and all discovery, production and interlocutory motions are complete (Tanner v. Clark, [2009] O.J. No. 581 at paras. 10-12). Parties who fail to comply with the Rules regarding the delivery of expert reports and preparedness for trials and pre-trials run the risk that they may not be permitted to adduce all of the evidence that they would have been able to at trial if compliant, suffering adverse costs consequences, or both (Babcock v. Destefano, 2017 ONSC 276 (Div. Ct.) at para. 48). A party should not be permitted to advise the court that it is ready for trial or agree to fixed trial dates and then continue with potentially disruptive discovery efforts and then bring last minute motions that either derail the trial or put the other party at a disadvantage (Kechnie v. MacAllister, 2016 ONSC 912 at para. 26). A party seeking leave must put sufficient evidence before the court of a significant or unexpected change in circumstances which may include information in reports that varies significantly from earlier reports (Paranitharan v. Alex Irvine Motors Ltd., 2011 ONSC 3104 at para. 7).

[14] In adopting the more flexible approach, the courts have expressed concern that a strict interpretation of Rule 48.04 may result in a strategic advantage to one party including by permitting the plaintiff to deliver numerous medical reports after the matter has been set down for trial while denying the defendant the ability to file responding reports (Aljoe v. Co-operators General Insurance Co., 2005 94670 (ON SC), [2005] O.J. No. 4044 at para. 11). Since the purpose of defence medical examinations.is to put the parties on a basis of equality as nearly as it is possible, where the absence of a report will cause a concern about unfairness to the defendant and an imbalance at trial, the courts have granted leave where the trial date is not jeopardized and there is no prejudice (Ortiz v. Sharma, [2007] O. J. No. 2984 at paras. 2-5; Rohit v. Nuri, 2010 ONSC 17 at paras. 24-29). Where the fundamental issue of trial fairness is in play, it is appropriate that leave be granted for the motion to proceed (Kernohan et al v. The Corporation of the Regional Municipality of York, 2009 9422 (ON SC), [2009] O.J. No. 886 at para. 22). In some instances, the court has been more inclined to grant leave where the motion at issue relates to a more substantive matter as opposed to a more routine matter and where any prejudice to the other party could be compensated for by costs (Tanner at para. 15). A defendant’s right to respond to a plaintiff’s expert report is a substantive right involving principles of trial fairness (Bonello v. Taylor, 2010 ONSC 5723 at para. 15).

[15] In my view, it is appropriate and preferable to adopt the more liberal and flexible approach. Applying this approach, I conclude that it is just and appropriate in the circumstances to grant leave.

[16] I arrive at this conclusion largely on the basis that the present case engages the Defendants’ substantive right to respond to the Plaintiff’s expert reports and by extension, trial fairness. It is not disputed that the Plaintiff’s damages claim related to her alleged psychological condition will be a central issue at trial. She has been treated and assessed on an ongoing basis by both a psychologist and a psychiatrist who together have delivered 10 reports. By the time of trial in November 2020, Dr. Waisman will not have assessed the Plaintiff for over 5 years and his notes and the 2015 Report will be over 5 years old.

[17] This conclusion is supported by fact that the trial is 15 months away and there is no suggestion or evidence that if leave is granted and an additional assessment ordered that it would lead to an adjournment of trial or otherwise prejudice the Plaintiff by providing insufficient time to respond to an additional report from Dr. Waisman. In my view, any prejudice which the Plaintiff may incur is not actual prejudice and could be compensated for by costs.

[18] Even applying the stricter, more established test, I am satisfied that the Defendants are entitled to leave. Specifically, I conclude that there has been a substantial or unexpected change in circumstances with respect to both the Plaintiff’s condition and the timing of trial.

[19] The 2018 Letters identify two substantial changes to the Plaintiff’s condition since Dr. Weisman’s 2015 assessment, the 2015 Report and the February 2016 court attendance: i.) that the Plaintiff’s depressive episodes escalated in the Summer of 2017, which Plaintiff’s counsel concedes is a change but not sufficient to satisfy the test for leave; and ii.) that the Plaintiff is permanently unemployable, an opinion not previously expressed by Dr. Manohar or Dr. Hoff. The fact that the trial was adjourned on consent to November 2020 adding another 2 years to the age of the 2015 Report and Dr. Waisman’s notes by the time of trial is also a significant and unexpected change.

[20] In arriving at this conclusion, I have considered the Defendants’ delay in bringing this motion. This includes their failure to reserve their rights to conduct a second psychiatric assessment at To Be Spoken To Court in 2016. Even more glaring is the Defendants’ failure to raise it at the pre-trial conference before Justice Archibald after they received the August 8 Letter followed by an additional 8 months’ delay before they brought this motion. While the Defendants’ delay and failure to raise the possibility of an additional assessment should not be condoned, I am not prepared to deny leave on this basis given that the delay and granting leave does not result in any actual prejudice to the Plaintiff. This conclusion is supported by the relevant case law.

[21] I was not referred to any case law in which the failure to raise the possibility of a medical assessment or reserve the right to do so when trial was scheduled or delay in bringing the motion was sufficient grounds, on its own, to deny leave. The cases demonstrate that prejudice or other factors (including a finding that the assessment was unnecessary) were present. Further, in the cases referred to me in which leave was denied due in part to delay or a party’s failure to raise the possibility or reserve their rights, trial was imminent and/or significantly closer than the present case. The trial of this action is 15 months away. In the cases referred to me the times are as follows: 2 months away in 2116656 Ontario Inc. v. Grant and LLF Lawyers LLP, 2018 ONSC 1080; 3 months in Prabaharan; under 2 months in Nguyen; 8 months in Paranitharan; and 40 days in Federico v. Hassan, CV-13-474410, Unreported Decision of Master Sugunarisi. I also note that leave was granted in Rohit and Ortiz where trial was 4 months and 3 months away, respectively.

[22] Having considered all of the relevant factors and circumstances and applied Rule 1.04(1), I conclude that in balancing all of the competing rights and principles, the guiding principle of trial fairness requires that leave be granted.

Should the Plaintiff Attend A Second Defence Psychiatric Assessment?

[23] Having granted leave, I turn to the Defendants’ motion for a second psychiatric assessment.

[24] Section 105 of the Courts of Justice Act (Ontario) provides that the court may order a party to undergo an examination by one or more health practitioners where the physical or mental condition of a party to a proceeding is put in question.

[25] Rules 33.01 and 33.02 state:

33.01 A motion by an adverse party for an order under section 105 of the Courts of Justice Act for the physical or mental examination of a party whose physical or mental condition is in question in a proceeding shall be made on notice to every other party.

33.02 (1) An order under section 105 of the Courts of Justice Act may specify the time, place and purpose of the examination and shall name the health practitioner or practitioners by whom it is to be conducted.

(2) The court may order a second examination or further examinations on such terms respecting costs and other matters as are just.

[26] The Court of Appeal recognized the importance of defence medical assessments in Bellamy v. Johnson, (1992) 1992 7491 (ON CA), 8 O.R. (3d) 591 at para. 16:

“The "defence medical" provided for by s. 105 and rule 33 forms an integral part of the discovery process where the physical or mental condition of a party to the proceedings is in issue. Discovery in civil proceedings is said to be (per Morden A.C.J.O., "An Overview of the Rules of Civil Procedure" (1984), 5 Advocates Quarterly 257, at p. 280):

. . . the most effective procedural device for learning the case one has to meet and, as a result, is an important condition of increased and reasonable settlements and more effective and fairer trials.”

[27] The principles and factors applicable to a motion requesting a second or further medical assessment were summarized by D.M. Brown J. at paragraph 16 in Bonello:

▪ (i) The party seeking the order for a further examination must demonstrate that the assessment is warranted and legitimate, and not made with a view to delaying trial, causing prejudice to the other party, or simply corroborating an existing medical opinion;

▪ (ii) A request may be legitimate where there is evidence that (i) the party's condition has changed or deteriorated since the date of a previous examination, (ii) a more current assessment of the plaintiff's condition is required for trial, (iii) the plaintiff served specialist reports from new assessors after the defendants had conducted their medical assessments, or (iv) some of the party's injuries fall outside the expertise of the first examining health practitioner;

▪ (iii) Some cases take the view that the need for a "matching report" - i.e. a report from a defence expert witness in the same specialty as a plaintiff's expert - is not, in and of itself, a sufficient reason to order a further defence medical. In the circumstances of the present case I need not wade deeply into that question. That said, I would venture that trial fairness should operate as the guiding principle in this area, so if the plaintiff has decided that expert evidence from one specialty based on an examination of the plaintiff is relevant to the adjudication of her claim at trial, courts should be loathe to deny the defence a fair opportunity to respond with expert evidence from the same specialty based on an assessment of the plaintiff. Ordering further examinations may be just where they are necessary to enable the defendant fairly to investigate and call reasonable responding evidence at trial;

▪ (iv) Where the request is for the examination of the plaintiff by a person who is not a health practitioner, such as a rehabilitation expert, the defendant must demonstrate that the proposed examination is necessary as a diagnostic aid to the health practitioner who is conducting the defence medical examination;

▪ (v) A request for a second examination must be supported by sufficient evidence to persuade a court of the need for the further examination. What constitutes sufficient evidence will vary from case to case. Some cases have suggested that need must be established by filing medical evidence, such as an affidavit from the first examining physician recommending a further examination by a health practitioner competent in another specialty. In other instances an affidavit from a lawyer or law clerk attaching medical reports has been utilized by the court. But, at the end of the day, determining whether the nature of the evidence filed is sufficient remains essentially an exercise of judicial discretion;

▪ (vi) While fairness, or "creating a level playing field", may constitute a legitimate reason for ordering a second examination, someone with knowledge of the evidence in the case must provide evidence of unfairness for the court to consider; and,

▪ (vii) A court should consider whether the request for a further examination would impose an undue burden on the plaintiff in light of the number of examinations already conducted of her by the defence.

[28] Delay on the part of a party requesting a medical examination and resulting prejudice to the plaintiff is a basis for refusing such relief (Nguyen v. Kojo, 2017 ONSC 2014 at para. 6; Prabaharan v. RBC General Insurance Company, 2018 ONSC 1639 at para. 19).

[29] The present case is similar to Trilokie v. Lasenby, 2015 ONSC 6376. Similar to the present case, the defence psychiatrist’s first assessment in Trilokie took place almost 5 years before trial. Applying the factors from Bonello, Master Muir ordered the plaintiff to attend a second psychiatric assessment finding as follows at paragraphs 10-11:

“10 The plaintiff argued that the psychiatrist who examined the plaintiff in 2011 could simply review his notes and conduct a paper review of the plaintiff's reports and any other available documents. He would then be in a position to prepare an updated report. Such an argument may have some merit where the earlier report was conducted shortly before the new information became available. However, in my view the fact that the defence examination of the plaintiff took place nearly five years ago militates in favour of a further examination of the plaintiff.

11 It also appears from the medical evidence that the plaintiff's condition may be deteriorating. The evidence shows that the plaintiff has been suffering from significant psychological health issues for many years and certainly prior to 2011. However, the plaintiff's most recent report from Dr. Gerber concludes that the plaintiff's prognosis is very poor and that it is unlikely that his symptoms will significantly improve. Earlier reports concluded that the plaintiff's condition was serious but described the plaintiff's prognosis as guarded and noted that he would continue to struggle with his condition. In my view, Dr. Gerber's report appears to be somewhat more pessimistic and suggests that the plaintiff's psychological health is deteriorating. This factor also supports a second examination.”

[30] The Plaintiff is not opposed to Dr. Waisman delivering an additional report in response to the 2018 Letters based on a paper review. The Plaintiff has also offered to complete an in writing assessment or questionnaire from Dr. Waisman. What the Plaintiff opposes is any form of additional in-person or telephone assessment by Dr. Waisman. Given the circumstances, both counsel acknowledged that a hybrid approach of an in-person and paper assessment may be appropriate.

[31] Having applied the relevant factors and balanced the competing interests, I conclude that it is just in the circumstances for the Plaintiff to attend a limited, second psychiatric examination with Dr. Waisman as part of a combined in-person, in-writing assessment.

[32] Specifically, I am satisfied that the Defendants’ request is warranted, legitimate and not sought simply to corroborate Dr. Waisman’s 2015 Report. The Defendants are also not simply seeking to deliver a matching report or delay trial which is still 15 months away.

[33] Similar to Trilokie, the 2015 Report and Dr. Waisman’s notes will be over 5 years old by the time of trial. They were almost 3 years old when he reviewed the 2015 Letters. In my view, there is a significant risk that that the Defendants will suffer prejudice and the playing field will not be level at trial if Dr. Waisman is required to conduct a paper assessment of the Plaintiff and respond to the 2018 Letters based on his outdated notes from 2015. Trial fairness demands that the Defendants be provided with an opportunity to conduct an updated in-person assessment. Given the passage of time, such a report, together with the Plaintiff’s reply reports, will enhance trial fairness while assisting the trier of fact, who will have more recent assessments at trial. An additional assessment and report may also facilitate settlement discussions.

[34] Consistent with my conclusions above and similar to Trilokie, it also appears that the Plaintiff’s psychological condition may have deteriorated since the 2015 Report. Namely, the June 12 Letter states that the Plaintiff experienced an escalation in depressive episodes in the summer of 2017 which in my view is a material change. Dr. Manohar’s conclusion in the July 9 Letter that the Plaintiff is permanently unemployable also supports this conclusion. Previous reports from Dr. Hoff and Dr. Manohar were pessimistic about the Plaintiff’s prognosis for future employment. However, Dr. Manohar’s conclusion that she is now permanently unemployable is the first time this opinion has been advanced. In my view, this is significant and material given that the Plaintiff’s alleged psychological condition is central to her damages claim and further supports the need for an updated assessment by Dr. Waisman.

[35] I reject the Plaintiff’s submission that the Defendants’ evidence is insufficient to support their request for an additional assessment. Applying Bonello, I am satisfied that in the circumstances, Dr. Waisman’s request in the August 8 Letter is sufficient. The August 8 Letter is evidence from a qualified health practitioner who has previously assessed the Plaintiff expressing his inability to properly respond to the 2018 Letters without an additional in-person assessment. This is not like the cases cited by the Plaintiff where the only evidence in support of the request was from a lawyer.

[36] I also cannot conclude that the Defendants’ delay in bringing this motion and ordering a second in-person assessment will cause any prejudice to the Plaintiff. The trial is still 15 months away. The Plaintiff will have sufficient time to deliver responding reports from both Dr. Manohar and Dr. Hoff and the trial date will not be jeopardized. While the Defendants’ delay and failure to raise the possibility of an additional assessment at the pre-trial or sooner should not be condoned, I cannot conclude that it has or will result in any actual prejudice to the Plaintiff. This is consistent with my conclusions above in granting leave and distinguishable from the case law referred to me by the Plaintiff.

[37] In the cases relied on by the Plaintiff, the assessments sought were not denied solely because of delay or a party’s failure to raise the possibility of an additional assessment or reserve their rights. In Babcock and Prabaharan, the courts also found that the assessments were unnecessary. In Nguyen and Prabaharan, the courts made findings of prejudice. This is also not a case like Kechnie where requiring the Plaintiff to attend an in-person assessment will disrupt trial preparation, impose undue hardship on the Plaintiff or jeopardize the trial date. In the present case, to the extent to which there is any prejudice to the Plaintiff, it can be compensated for with costs.

[38] Having applied the relevant factors and balancing the competing rights and interests, I conclude that the guiding principle of trial fairness, in the absence of prejudice to the Plaintiff, calls for a limited second in-person psychiatric assessment of the Plaintiff. The Defendants provided no guidance with respect to the terms of the in-person assessment including length. When pressed, Defendants’ counsel suggested 2 hours but without specifics. In my view, given the written reports, Dr. Waisman’s previous assessment and the option to have the Plaintiff complete written assessments, a 1-hour in-person assessment with Dr. Waisman is sufficient and appropriate. Limiting the in-person assessment to 1 hour will also address concerns raised by Plaintiff’s counsel regarding the stress of the Plaintiff having to attend an assessment given her psychological condition. In any event, while I am sympathetic to the Plaintiff’s condition, there is no evidence that having to attend an additional assessment would cause her any particular undue hardship or disruption, particularly an assessment limited to 1 hour.

[39] I conclude that the combination of a limited in-person assessment and written assessment is just in the circumstances and represents the most efficient, cost-effective and proportionate result. If the parties cannot agree on the terms of the written assessments including any questions in writing or questionnaires, they may schedule a telephone case conference with me for further directions and case management.

IV. Disposition

[40] Order to go on the terms set out above. Counsel may file a form of order with me for my review and approval.

[41] If the parties are unable to agree on the costs of this motion, counsel may file written costs submissions not to exceed 3 pages (excluding costs outlines) on a timetable to be agreed upon by counsel. If the parties cannot agree on a timetable, a telephone case conference may be scheduled with me to speak to one.

Released: August 9, 2019

Master M.P. McGraw