COURT FILE NO.: 15-66761
DATE: November 1st, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DENIS ROY Plaintiff/Respondent
– and –
PRIMMUM INSURANCE COMPANY Defendant/Moving party
Joseph Obagi and Elizabeth Bratton for the plaintiff
Charlene Kavanagh and Chris Macaulay for the defendant
RULING by justice s. gomery ON the DEFENDANT’S MOTION TO COMMUNICATE WITH WITNESSES
[1] The defendant Primmum Insurance Company seeks an order permitting it to communicate with three occupational therapists - Louise Hardy, Stéphanie Harvey and Chris Costello - prior to calling them to the stand in the trial of this action.
Background
[2] On April 24, 2004, the plaintiff Denis Roy was seriously injured in a motorcycle accident. Primmum was his accident benefits’ insurer.
[3] On December 20, 2010, Mr. Roy applied for a determination that he was catastrophically impaired as a result of the accident. Although it initially denied his application, in July 2014 Primmum conceded that Mr. Roy met the statutory criteria for catastrophic impairment and was therefore eligible to receive attendant care benefits, housekeeping and home maintenance benefits (“CAT benefits”). It has since paid him retroactive CAT benefits from December 20, 2010 forward. It denies, however, that he is entitled to any CAT benefits prior to this date, or interest on any retroactive benefits already paid or payable. That is what is at issue in this lawsuit and what will be determined as a result of this trial.
[4] To establish the existence of his catastrophic impairment since the accident and his need for the CAT benefits from April 24, 2004 forward, Mr. Roy relies on a retrospective assessment prepared by his current treating occupational therapist, Julie Cousineau. Ms. Cousineau has completed forms, known as Form 1s, detailing the types and quantifies of attendant care services that, in her view, Mr. Roy needed in various periods after the accident, depending on his level of functionality at any given time.
[5] In support of its contention that Mr. Roy was not eligible for any additional benefits for the period between April 24, 2004 and December 20, 2010, Primmum relies on reports prepared by Hardy, Harvey and Costello in 2004 and 2005. Hardy, Harvey and Costello are occupational therapists who treated Mr. Roy between April 24, 2004 and the end of 2005. Each of them prepared assessments of his ability to perform the activities of daily living at the time and completed Form 1s that were submitted to Primmum. Based on these Form 1s, Primmum paid for some attendant care services and housekeeping/home maintenance services for Mr. Roy following the accident, although not to the level that he now alleges that he needed and that he was entitled to receive if he was, at the time, catastrophically impaired.
[6] During the same periods that Harvey and Costello were treating Mr. Roy, they also prepared reports pursuant to s. 42 of the Statutory Accident Benefits Schedule, a regulation to the Insurance Act, R.S.O. 1990, I.8. These assessments were arranged through Sibley & Associates (“Sibleys”), disability management consultants retained by Primmum. Under the version of the Schedule then in force, s. 42 permitted an insurer, as often as is reasonably necessary, to require an insured to be examined by a health professional, for the purpose of assisting in determining if the insured was or continued to be entitled to an insurance benefit. Hardy was not retained to prepare any s. 42 assessments.
[7] Prior to the trial, counsel for Primmum served a copy of the reports and forms completed by Hardy, Harvey and Costello in 2004 and 2005, whether as treating occupational therapists or pursuant to s. 42, along with a notice under s. 52 of the Evidence Act. In response, Mr. Roy’s lawyer, Mr. Obagi, has indicated that he wishes to cross-examine the authors of these reports. Hardy, Harvey and Costello will accordingly be called to testify during the trial now underway.
Primmum’s motion
[8] At a trial management conference held the day before this hearing began, counsel for Primmum advised that it wished to speak to Hardy, Harvey and Costello to prepare them for their testimony. Mr. Obagi took the position that defence counsel could not communicate with them because they were Mr. Roy’s treating occupational therapists. At the conference, I instructed counsel to exchange motion materials so that the issue could be argued.
[9] In its notice of motion, Primmum seeks an order “confirming that counsel for the defendant is entitled to discuss the subject matter of this action” with Hardy, Harvey and Costello. Mr. Roy contests the motion, on the basis that information provided to Hardy, Harvey and Costello were confidential, and he has not consented to the proposed discussions with the insurer’s counsel.
Should Primmum be granted leave to bring this motion?
[10] The trial date for this action was set on May 10, 2017. Primmum did not take any steps to seek a court order permitting communication with witnesses until October 22, 2019. The motion was served on October 25, 2019, two days after the trial started, further to my direction at the trial management conference.
[11] In its notice of motion, Primmum seeks leave to bring this motion under rule 48.04(1). Rule 48.04(1) provides that, once an action is set down for trial, a party shall not initiate “any motion or form of discovery” without leave of the court, subject to certain exceptions.
[12] The principles and criteria applicable to rule 48.04 motions are discussed at length by Master M.P. McGraw in Maria-Anthony v. Ivaschenko, 2019 ONSC 4731, at paras. 11 to 22. The purpose of the leave requirement is to ensure, insofar as possible, that parties are ready for trial when they set matters down.
[13] Courts have debated about the specific test that applies for granting leave under rule 48.04. The traditional test requires the moving party to demonstrate that there has been a substantial or unexpected change in circumstances; see, for example, Flynn v. Wijay, [2004] O.J. No. 266, at para. 5. A more flexible and less stringent approach has emerged in some recent cases. It permits a court to grant leave under rule 48.04 where the interlocutory step is necessary in the interests of justice considering all of the circumstances and Rule 1.04(1); Maria-Anthony at para. 12, citing BNL Entertainment v. Ricketts, 2015 ONSC 1737, at para. 12.
[14] In my view, a more flexible approach should be used in this case. The overarching purpose of rule 48.04 is to promote certainty and minimize the potential for requests for adjournment. These purposes are not really at issue here; if Primmum is granted the order it seeks, this will not give rise to any delay in the prosecution of the action.
[15] In considering whether to grant leave, I will therefore consider whether Primmum’s motion is in the interests of justice, considering all of the circumstances.
[16] I will begin by considering what is at stake.
[17] Counsel for Primmum argued, with conviction, that the communication it seeks through this motion is critical to its defence. He asserted that the evidence of Hardy, Harvey and Costello is required for the court to assess whether Mr. Roy’s claim, based on a retrospective analysis, is consistent with contemporaneous records of his condition in 2004 and 2005. He pointed out that it has been fifteen years since the interactions at issue, and argued that the therapists’ evidence will be compromised if defense counsel is not permitted to speak to them before they are cross-examined, because they will not have the opportunity to refresh their memory of their interactions with Mr. Roy and understand the context in which they are being compelled to testify.
[18] I agree that the evidence of Hardy, Harvey and Costello is very important. In order to find in the plaintiff’s favour in the action, I will have to conclude that the occupational therapists who treated him in 2004 and 2005 were incorrect in their assessments of his condition, or failed to properly assess functional limitations caused by his cognitive or physical deficits, or failed to consider his needs as a result of those limitations, or some combination of all of the above. In short, I will have to prefer Ms. Cousineau’s retrospective assessment of Mr. Roy over their contemporaneous assessments.
[19] This motion is not, however, about whether the court will have the benefit of the evidence of these witnesses. The assessments and Form 1s completed by Hardy, Harvey and Costello at the time have been filed in the court record with a s. 52 notice, and counsel for the defence has undertaken to call them as witnesses so that Mr. Obagi may cross-examine them. The court will therefore be able to consider and give weight to their reports, and their explanations of their methodology in preparing them, whether or not leave is granted to Primmum for this motion.
[20] What is really at stake here is the ability of defence counsel to prepare witnesses whose evidence is vital to its case. This is standard part of trial preparation in most cases. Lawyers generally expect that, before they give evidence, non-party witnesses will meet with counsel for whichever side their evidence is expected to favour. A witness who has been briefed about the issues in a lawsuit, and taken through the materials with a lawyer, may arguably have more complete recall and focus, and therefore be better able to assist the court. Giving counsel a chance to prepare witnesses is consistent with a philosophy that discourages trial by ambush.
[21] I therefore conclude that Primmum has a genuine interest in obtaining the ability to communicate with Hardy, Harvey and Costello. Its substantive rights are not at issue, but it will benefit from recognized, widely practiced litigation strategy by being allowed to prepare its witnesses. The justice system arguably may gain as well from witnesses who are better informed and more forthcoming. There are clearly countervailing policy arguments against granting the substance of the motion, which I will discuss below. The defendant’s interests, however, weigh in favour of granting leave.
[22] Weighing against granting leave is the presentation of this motion at a very late date.
[23] The question of whether Primmum’s counsel has the right to speak to Hardy, Harvey and Costello has been live since at least December 2016. The s. 42 assessment reports completed by Harvey and Costello refer to an attached “Signed Waiver and Consent to Assessment”. Despite this, as of December 2016, no consents or waivers signed by Roy in 2004 and 2005 had been produced by Primmum. During a cross-examination of Primmum’s representative on December 13, 2016, it undertook to disclose them.
[24] Primmum had still not produced any written waivers or consents more than two years later, when its representative was examined for discovery on January 16, 2019. During this discovery, Primmum once again undertook to produce these documents. Counsel for Primmum also undertook not to communicate with Hardy, Harvey and Costello until the consents had been produced, and Primmum either obtained an order permitting communications, or reached an agreement with Roy, through his counsel, authorizing the communications.
[25] On February 15, 2019, counsel for Primmum wrote to Sibleys to request a copy of their file. There is no evidence that Primmum made any effort, prior to this date, to fulfill its undertakings to produce any consents or waivers signed by Roy.
[26] There is also no evidence of when counsel for Primmum obtained the consents executed by Roy in 2004 and 2005, on which it relies in this motion. Ms. Kavanagh told the court that the Sibleys file was received by her office in May 2019, but that her office did not provide a copy to the plaintiff’s counsel until October 1st, 2019, three weeks before the commencement of trial. The consents in any event were not contained in the Sibleys file. She is unsure of where and when her office obtained the consents but acknowledged that they were provided to Mr. Obagi until October 8, 2019, less than two weeks prior to trial.
[27] Primmum’s counsel argued that they did not know that they would have to bring this motion until the consents were located and produced to Mr. Obagi. Its counsel believed that Roy might permit them to communicate with Harvey, Hardy and Costello, depending on the nature of the documents that he had executed years earlier.
[28] I think it highly unlikely that plaintiff’s counsel would ever have agreed to allow defence counsel to engage in off-the-record communications with a treating health practitioner, absent a court order. During argument on the motion, however, Mr. Obagi did not rule out the remote possibility that he might have agreed to such communications. He wanted to see the written consents before reaching a final decision.
[29] It is this concession alone that persuades me that leave ought to be granted. Defence counsel did not, on the evidence before me, act diligently either in attempting to locate the consents or in providing them to Mr. Obagi. There was never any prospect of a signed consent emerging that might permit counsel for Primmum to communicate with Hardy, since she never did a s. 42 assessment of Mr. Roy. All counsel however proceeded on the understanding that they would have to see the consents before deciding whether a motion was necessary.
[30] Given the absence of any prospect of trial adjournment as a result of the motion, given the interest that the defence legitimately asserts in communicating with Hardy, Harvey and Costello prior to their testimony, and given the implicit consensus between counsel that Primmum might not have to seek judicial authorization once the consents were produced, I conclude it is in the interests of justice to grant the defendant leave to present its motion.
Is defence counsel entitled to speak to Hardy, Harvey and Costello?
[31] Despite the general rule that there is no property in a witness, Ontario courts have long recognized that special rules apply where counsel for one party seeks to interview a physician who treated another party.
[32] In Burgess (Litigation guardian of) v. Wu, 2003 CanLII 6385 (ON SC), [2003] O.J. No. 4826, Justice Ferguson reviewed the legal and policy considerations in play in this situation. At paras. 69 to 77, he identified the rules concerning access to confidential medical information outside the courtroom, which can be summarized as follows:
(1) Unless the patient consents, counsel for another party may not have any communication at all with the patient’s health care professionals concerning the patient. A plaintiff’s health care professionals have a corresponding duty to refuse to disclose information about their patient unless required to do so by law.
(2) In the absence of consent, access to confidential medical information before trial can be obtained in only two ways: (a) by obtaining pre-trial discovery pursuant to the rules of the court, notably rule 31.10, or (b) by seeking a special disclosure order from a judge exercising inherent jurisdiction.
(3) Even where access is permitted, the person under a duty of confidentiality cannot be asked for opinions beyond those formed during treatment of the patient unless this is specifically consented to or ordered.
[33] The rules set out in Burgess v. Wu have been consistently applied by Ontario courts where counsel has sought authorization for pre-trial communications with treating health care providers. Primmum does not suggest that they are inapplicable where the health practitioner involved is an occupational therapist, as opposed to a physician.
[34] Primmum argues, however, that its counsel should nonetheless be free to communicate with Hardy, Harvey and Costello about their proposed evidence. It advances two arguments in favour of its position.
Argument 1: The duty of confidentiality does not apply
[35] Primmum argues that the usual duty of confidentiality recognized in Burgess v. Wu does not apply here, or at least not to Harvey and Costello, because they were retained by the insurer to provide s. 42 assessments. In at least one other case, counsel for a defendant insurer has been authorized to meet with s. 42 assessors to prepare them prior to calling them to the stand; Lacroix v. Federation Insurance Co. of Canada, 2014 ONSC 6002.
[36] More broadly, Primmum argues that Hardy, Harvey and Costello are merely being called to testify about what they observed in 2004 and 2005, and that they will not be disclosing any information that Mr. Roy did not implicitly agree to provide, through his participation in the s. 42 assessment process.
[37] I do not accept this argument.
[38] Hardy, Harvey and Costello played dual roles. On the one hand, they provided therapeutic services to Mr. Roy, and assisted him by completing Form 1s, so he could get funding for attendant care. On the other hand, Harvey and Costello were also retained, on several occasions, to perform s. 42 assessments for the insurer.
[39] The dual role played by the occupational therapists does not give Mr. Roy fewer rights, or the insurer greater rights. The treatment relationship gave rise to a patient/health practitioner relationship. This is a relationship in which confidential information is provided by the patient, with the expectation that it will be kept confidential. Primmum’s decision to retain treating occupational therapists as s. 42 assessors cannot and does not imply that the patient suddenly loses the protection that the law otherwise extends with respect to the relationship between patients and health care professionals.
[40] Primmum argues that, by participating in the s. 42 process and signing consents, Mr. Roy waived his right to object to the disclosure of confidential information by Harvey and Costello. Mr. Roy had no role in the decision to have his treating occupational therapists perform s. 42 assessments. This choice was made by the insurer. In fact, in its September 27, 2004 letter advising him of the upcoming s. 42 assessment, Primmum warned Mr. Roy that his failure to participate in the assessment it had arranged would “result in refusal of any future benefits you may qualify for”. There is no hint in this letter, or in Ms. Harvey’s letter the next day, that Mr. Roy could have asked that the assessment be performed by another therapist. Although Mr. Roy was required, under s. 42, to attend assessments reasonably required by his insurer, in doing so he was not required to waive his right to the confidentiality with his treating health practitioners, nor can such waiver be implied.
[41] Counsel for Primmum argued that its decision to retain treating occupational therapists to perform s. 42 assessments should be applauded, because they had much better insight into Mr. Roy’s condition than an independent expert would have had. Whatever Primmum’s motive was for retaining Harvey and Costello as assessors, this does not give it the ability to circumvent the usual rules applicable to communications with treating health practitioners.
[42] The circumstances in the cases relied upon by the defendant are distinguishable from the circumstances here. In Lacroix, the s. 42 assessors were never in a therapeutic relationship with the plaintiff. Labrosse J. recognized, at para. 16 of his decision, that this was not a situation where the witness was a former treating physician, as in Burgess v. Wu. This is likewise a different situation than in Bourtnikov v. Rakitova, 2015 ONSC 1163, where the witness at issue was not a health practitioner and there was no evidence of any confidential information that had been provided to him.
[43] I conclude that Hardy, Harvey and Costello have a duty of confidentiality to Mr. Roy as a result of their role as treating occupational therapists. I further conclude that, by participating in the s. 42 assessments, Mr. Roy did not waive his right to confidentiality with respect to information they obtained from him.
Argument 2: Mr. Roy consented to disclosure
[44] Primmum argues that Mr. Roy agreed to disclosure of information by his treating occupational therapists by executing written consents, and that this means he waived any objection to pre-trial communications between them and defence counsel in an eventual lawsuit. This argument fails, for two reasons.
[45] First, this argument only applies to disclosure by Harvey and Costello, as no consents have ever been produced with respect to Hardy’s interactions with Mr. Roy.
[46] Second, these consents were limited in scope. On a straightforward review of their terms, they do not permit Primmum to obtain information from Harvey or Costello beyond the assessment reports they prepared. They are furthermore limited in time and revocable.
[47] Mr. Roy signed three types of consents: a consent to a treatment plan, a consent to an evaluation, and a “Permission de déclarer l’information médicale et d’emploi”.[^1]
[48] Mr. Roy signed consents to a treatment plan on five separate occasions between July 14 and November 18, 2004, when Stephanie Harvey was his occupational therapist. The consents are all identical and contain two references to the disclosure of information. First, they say that Mr. Roy consents to the collection and disclosure of information in compliance with the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (“PIPEDA”). Second, they say that a report on his progress would be completed by Harvey and provided to those persons identified on “FRM 2590”.
[49] Leaving aside the absence of any evidence of Mr. Roy’s knowledge, when he signed each consent, about the names listed on “FRM 2590”, the consents do not permit Primmum to have discussions with Harvey about any observations or information she may have as a result of her interactions with Mr. Roy. The only thing that the consents might permit, read together with a “FRM 2590” signed in the same time period, is disclosure of reports prepared by Harvey to Primmum. This does not assist defence counsel in obtaining the order sought on this motion.
[50] The consents to an evaluation, signed by Mr. Roy on July 15, 2004 with Ms. Harvey, and with Mr. Costello on three occasions, largely reproduce the terms of the consents to treatment. Only one of them explicitly mentions s. 42. The consents counter-signed by Mr. Costello all mention Mr. Roy’s right to revoke his consent to the collection and disclosure of information. Unlike the other consents, however, they do not state that Costello’s reports will be disclosed to anyone. There is no reference to the insurer or to any other form that might identify the insurer. These consents are accordingly of even less assistance to the defendant.
[51] Finally, Mr. Roy signed two authorization forms, one in July 2004, countersigned by Harvey, and a second on January 2005 countersigned by Costello. Based on the footer that appears on each, these are the “FRM 2590s” mentioned earlier. In each form, Mr. Roy authorizes listed entities and individuals to provide information to his occupational therapist or to a representative of Sibleys, and he authorizes Sibleys in turn to disclose information to listed entities and individuals.
[52] The first authorization corresponds to the consent to treatment plan signed by Mr. Roy on July 15, 2004. Read together, these two forms provide that Mr. Roy consented to the disclosure of Harvey’s report to all parties listed on the authorization form, including an unnamed “ajusteur d’assurance”. Primmum is not specifically mentioned on either form. In any event, as already mentioned, the authorized disclosure is limited to Harvey’s reports.
[53] The second authorization, dated January 31, 2005, could notionally correspond to a consent to an evaluation signed the same day. This is however unclear, since that consent does not refer to any disclosure except to say that Mr. Roy consents to collection and disclosure of information collected during the evaluation consistent with PIPEDA.
[54] Reading the January 31, 2005 authorization as a stand-alone document, Mr. Roy consents in it to the transmission of information by Primmum, his family physician, his psychologist, his physiotherapist, and the Ottawa Civil Hospital to Costello or a representative of Sibleys. He further consents to the disclosure of all of this information to Primmum or any other agency, institution or individual involved in his rehabilitation programme.
[55] Neither of the authorizations explicitly permit either Harvey or Costello to disclose information to Primmum. Defence counsel argued that, in reading these forms, the therapists should be considered Sibleys’ agents or representatives, such that Mr. Roy’s authorization for Sibleys to disclose information to the adjuster or Primmum should be read as consent for Harvey or Costello to do so. This interpretation would require me to overlook the use of the disjunctive “or”, in the reference to Harvey and Costello “ou un/une représentant(e) de Sibley & Associates Inc.” I furthermore have no evidence about the relationship between these therapists and Sibleys.
[56] Primmum urged me, during argument on the motion, to take a “holistic” rather than a technical view of the consents and authorizations. In doing so, they effectively conceded that the forms do not explicitly provide for communication between the occupational therapists and Primmum, beyond transmission of written reports.
[57] Beyond the fact that the forms do not actually authorize Primmum to do what its counsel now seeks to do, the authorizations provide that Mr. Roy’s authorization will only be in effect for twelve months from the date of signature. Since this term of the last authorization signed by Mr. Roy expired almost fourteen years ago, it cannot be used for any disclosure by the occupational therapists at this point.
[58] I therefore conclude that Mr. Roy did not consent to the communication of information by Hardy, Harvey and Costello to Primmum, beyond the sharing of any written reports.
Conclusion
[59] Primmum is not seeking further discovery. Although it cites rules 31 and 37 in its notice of motion, it is not asking for the right to examine Hardy, Harvey and Costello. Its counsel is instead seeking to engage in off-the-record discussions with them. They want to refresh their memory of Mr. Roy’s case, they want to get a better understanding of how these individuals will present as witnesses, and they want to prepare them for cross-examination by Mr. Obagi. All of this would be innocuous were it not for the past relationship between these witnesses and Mr. Roy.
[60] Very few, if any, procedural rights are absolute. Our law protects the confidentiality of the relationship between individuals and treating health professionals, even where this relationship limits a defendant in a lawsuit from engaging in otherwise standard witness preparation.
[61] In Flynn v. Wijay, Master Beaudouin (as he then was) rejected a motion by a defendant to obtain information from one of the plaintiff’s treating physicians prior to a trial. He noted at para. 9 that, pursuant to Burgess v. Wu, a defendant may not seek to interview a treating physician absent either consent or some form of judicial supervision. I agree with his observation that “Even though the defendant maintains that he is not seeking confidential information, it is the confidentiality of the relationship that must be respected”. I also agree with his observation that a defendant’s natural desire to ensure that witnesses will say what they expect (or want) them to say is not a justification for authorizing unsupervised access to the information gained during that relationship.
[62] The defendant’s motion is accordingly dismissed.
Justice Sally Gomery
Released: November 1st, 2019
COURT FILE NO.: 15-66761
DATE: November 1st, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DENIS ROY Plaintiff/Respondent
– and –
PRIMMUM INSURANCE COMPANY Defendant/Moving party
REASONS FOR JUDGMENT
Madame Justice S. Gomery
Released: November 1st, 2019
[^1]: I have reproduced this title exactly as it appears on the document, which is clearly a translation from a document originally drafted in English.