COURT FILE NO.: CV-17-569822
DATE: 20190926
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MICHAEL SCUGLIA
Plaintiff
– and –
RBC LIFE INSURANCE COMPANY
Defendant
Jordan Goldblatt and Jordan Katz, counsel for the Plaintiff Barry G. Marta and Andrew Cottreau, counsel for the Defendant
HEARD: August 12, 2019
G. DOW, J.
REASONS FOR DECISION
[1] The plaintiff appeals the decision and order of Master Mills of February 12, 2019 requiring the plaintiff to attend an examination for discovery or cross-examination on his affidavit on terms to accommodate his physical and physiological condition. Further, the plaintiff appeals Master Mill’s award of costs in favour of the defendant in the amount of $64,897.40 inclusive of fees, HST and disbursements which was made subsequently on May 27, 2019.
Background
[2] The facts which led to issuing the Statement of Claim have been detailed in prior decisions by the Master and need not be repeated in the same level of detail. For my purposes, it is sufficient to summarize that the plaintiff was in receipt of long-term disability benefits from the defendant starting in 2006 until he was requested to attend an independent medical examination and interview in 2014. This was after concerns arose about his ongoing entitlement. The contract provided for examinations and interviews “as reasonably necessary”.
[3] The medical examination did not proceed for reasons detailed in the materials until the plaintiff was seen by Dr. McMaster, psychiatrist, on September 19, 2016. It was not completed. The plaintiff was hospitalized two days later with stroke like symptoms requiring investigation. It is not disputed the plaintiff suffers from vascular malformation (brain lesions) and a conversion disorder. The conversion disorder can cause the plaintiff to feel the physical symptoms that are not due to an underlying medical, or, in this case, a neurological condition.
[4] Vascular malformations for this plaintiff involve the less serious cavernous malformations and developmental venous anomalies (“DVA”) with MRI results from November, 2014 showing evidence of a bleed or lesion. The plaintiff refused to attend further examinations by Dr. McMaster and his benefits were suspended. The Statement of Claim was issued February 16, 2017 seeking not only damages for breach of contract but additional damages for the breach of the duty of good faith, intentional infliction of mental suffering, invasion of privacy and breaches of the Ontario Human Rights Code. The amount sought is in excess of $2 million. The Statement of Defence includes a counterclaim to vitiate the claim for benefits and also claims punitive damages. It is dated June 23, 2017.
[5] The plaintiff failed to attend a scheduled examination for discovery and deposed in his affidavit his refusal to be cross-examined.
[6] Before the decision being appealed, the Master heard a motion by the plaintiff on October 16, 2018 to have a summary judgment motion proceed before the defendant’s motion to compel the plaintiff to attend an examination for discovery or be cross-examined. Again, the details are contained in the reasons of the Master and need not be repeated in full detail.
[7] The Master determined this “discovery motion” would proceed first. The discovery motion proceeded January 14, 2019 with reasons released February 12, 2019.
Analysis
[8] The parties agreed the standard of review of the Master’s decision is that contained in Zeitoun v. Economical Insurance Group, 2008 CanLII 20996 (ON SCDC), [2008] O.J. No. 1771 (at paragraph 40) “ … the decision will be interfered with only if the Master made an error of law or exercise his or her discretion on the wrong principles or misapprehended the evidence such that there is a palpable and overriding error”.
[9] The parties also agree the law to be applied on the motion was that set out in Ozerdinc Family Trust v. Gowling Lafleur Henderson LLP, 2015 ONSC 2366, in which the Master accurately quotes that “Oral discovery then is neither an absolute right nor a precondition to fairness and justice”… “If the justice of the case requires it there can be no doubt that the court has the jurisdiction to curtail or modify the discovery rights of the parties or to give direction as to how those rights are to be exercised”. (at paragraph 22).
[10] To that end, counsel for the plaintiff submitted that the Master made a palpable and overriding error in concluding the plaintiff had failed to meet his onus to show the court “cogent and persuasive medial evidence that the party is physically unable to attend for discovery without serious risk of harm. It is a high onus to be met. It is not sufficient to merely state that the process would be too stressful or too emotionally upsetting. The medical evidence must show a real potential for the party to suffer harm as a result of attending” (at paragraph 18 of the Master’s decision).
[11] The Master addressed the medical evidence tendered by both parties which included reports and cross-examination of medical experts. This included the plaintiff’s treating psychiatrist. I note this included an admission this doctor’s notes were incomplete. The Master assessed this physician to be “an advocate for Mr. Scuglia rather than a dispassionate medical witness” and, further, was “prepared to speculate if it would assist his patient” (at paragraph 24 of the Master’s decision). The plaintiff also relied on a neuropsychiatrist who reviewed the material but had not seen or examined the plaintiff. The Master concluded that doctor’s opinion in neurological areas was in areas in which he was not expert (at paragraphs 26 and 27 of the Master’s decision).
[12] The Master preferred the evidence of a neurologist retained by the defendant who opined the vascular malformation, while “it is possible for an intracerebral hemorrhage to occur as a result of a sudden and acute increase in blood pressure, the risk would be very small and non-quantifiable”. Further, the Master accepted the risk of “physical or neurological damage was “exceedingly low and non-quantifiable” (at paragraph 28 of the Master’s decision).
[13] The Master also accepted the opinion of Dr. McMaster that Mr. Scuglia was “psychiatrically capable of undergoing a psychiatric assessment in 2016 provided certain accommodations were implemented” (at paragraph 31 of the Master’s decision).
[14] Counsel for the plaintiff submitted additional statements accepted by the Master of Dr. McMaster’s opinion that attendance at an examination for discovery “while unquestionably stressful for Mr. Scuglia, may well assist in his recovery” (at paragraph 33 of the Master’s decision) supported and fulfilled the legal test required to not attend such an examination. The Master went on to state “if there was any damage, it would be temporary in the natural course of this illness which is characterized by a course of relapse and recovery”. The plaintiff’s counsel submitted this met the requisite legal test of palpable and overriding error.
[15] I disagree. My conclusion is that the Master carefully considered the evidentiary matrix as required and reached a conclusion that the Master was entitled to make. That decision is entitled to deference. As submitted by defence counsel, my reaching the opposite conclusion on the same evidence is not a basis to overturn the Master’s decision.
[16] In fact, particularly given the accommodations included in how the examination for discovery is to be conducted, I agree with it.
[17] I am reinforced in this conclusion by the issue of credibility raised in this action. The plaintiff’s counsel submitted no credibility issue arose given this is a breach of contract matter predicated on interpreting if the measures sought by the defendant were “reasonably necessary”. This position is undermined by the additional damages and allegations contained in the Statement of Claim and in the Counterclaim about how the parties have treated each other and their reaction to such treatment.
Appeal of Costs Award
[18] The plaintiff appealed the award of costs given the circumstances by which it was made. The reasons of Master Mills released on February 12, 2019 provided in the final paragraph that the defendant was entitled to its costs on a partial indemnity basis. If the parties could not agree, written submissions were to be made to the Master within 30 days. The 30 days expired without delivery of submissions by the defendant. Plaintiff’s counsel wrote to the Master by letter dated March 15, 2019 requesting the record be endorsed “each party bear its own costs of the motion”. An email was sent from the Master’s office providing an extension date to April 15, 2019. Counsel for the defendant served material on or about April 9, 2019. Plaintiff’s counsel responded on April 23, 2019. The Master released an endorsement on costs on May 27, 2019.
[19] The Master rejected the plaintiff’s submission of having become functus officio and that the Master had no authority to extend the time for making submissions and rendering a decision on quantum. The Master relied on authority that a judicial officer’s role has not ended because no formal order had been taken out. That statement of the law is open to debate given the analysis in Brown (Trustee of) v. Municipal Property Assessment Court, 2014 ONSC 7137 (Div. Ct.). It would appear that while the judicial official is clearly functus officio if the order has been taken out, the opposite is not necessarily the case. Justice Nordheimer, as then was, on behalf of the court details the functus officio principle being finality and “the right to expect that once a matter is determined by a judge, it is over” (at paragraph 19). Here the original substantive order was for RBC Life to be paid “its costs of this motion, on a partial indemnity basis” (at paragraph 41). That did not change. It was the manner or time frame by which those costs were quantified which was extended.
[20] Justice Nordheimer also noted the “fairly broad power, in a judge, to change an order after it has been announced but before it has been signed and entered” (at paragraph 20). Such changes “must be fully explained to ensure that the authority is not abused” (at paragraph 20). I conclude that is what occurred here.
[21] RBC Life was entitled to its partial indemnity costs. The Master extended the time for the parties to make submissions about the quantum. The plaintiff had full opportunity to make submissions and appears to have had significant success in reducing the claim by RBC Life for the sum of $149,450.65, all inclusive, to the Master’s assessment and fixing costs in the amount of $64,897.40.
[22] I agree with the Master’s reasoning that, in addressing the plaintiff’s submission that the Master had become functus officio, a motion to vary or extend the time could have been brought and was within the Master’s discretion to grant. The absence of such a motion did not vitiate the Master’s discretion to extend the time and complete the determination of the quantum of costs to be awarded.
[23] As a result, this aspect of the appeal is dismissed. I also decline to alter the Master’s determination of the appropriate quantum. I do so because the Master, having been involved in hearing the motion on a substantive basis, was in the best position to determine the appropriate quantum.
Conclusion
[24] The plaintiff’s appeal is dismissed. The parties agreed at the conclusion of submissions that the successful party recover from the unsuccessful party the sum of $8,655.00 inclusive of fees, HST and disbursements and same is payable by the plaintiff to the defendant forthwith.
Mr. Justice G. Dow
Released: September 26, 2019
COURT FILE NO.: CV-17-569822 DATE: 20190926
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
MICHAEL SCUGLIA
Plaintiff
– and –
RBC LIFE INSURANCE COMPANY
Defendant
REASONS FOR DECISION
Mr. Justice G. Dow
Released: September 26, 2019