COURT FILE NO.: CV-17-571857
MOTION HEARD: November 27, 2020
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: D’Eon
Plaintiff
AND:
Hosseini, et al.
Defendants
BEFORE: Master J. Josefo
Date of Decision: December 4, 2020
Motion heard: November 27, 2020
Counsel: D. Zarek, counsel for the defendants/moving parties
Email: dzarek@ztgh.com
A. Ismail, counsel for the plaintiff/responding party,
Email: ashu@campisilaw.ca
Endorsement of Master Josefo dated December 4, 2020
What this motion is about: context and background
[1] What underpins this motion is a Tort/Motor Vehicle Accident (“MVA”) case. On September 15, 2016, the plaintiff D’Eon was riding her motorcycle in the City of Toronto when the defendants admit that the “front of their motor vehicle touched the back of the plaintiff’s motorcycle” (from paragraph four of the proposed amendment statement of defence). The defendants assert that this was a low speed collision, leading to plaintiff only to suffer minor property damage. The plaintiff, however, asserts at, inter alia, paragraphs 10 and 11 in her statement of claim (“claim”) dated March 20, 2017, that she suffered significant impairments arising out of the MVA. She claims over four million dollars in damages.
[2] The original statement of defence is dated June 19, 2017. It was prepared by a former lawyer of the defendants, who was since replaced by Mr. Zarek and his firm. As the parties approach trial in approximately five months, the case has become, unfortunately, increasingly acrimonious amongst counsel, as some of the correspondence which forms part of this voluminous record reveals.
[3] Defendants seek the following in this within motion:
• To amend the statement of defence,
• To remove counsel for the plaintiff, Mr. J. Campisi, from the file (purportedly not seeking to remove his law firm),
• To have the plaintiff attend certain Independent Medical (and one non-medical) Evaluations (for convenience, all called “IME’s”), and,
• To have counsel for the plaintiff stop writing to the (IME) evaluators selected by the defendants.
[4] Plaintiff brought a cross-motion. Yet that, along with defendants’ issues pertaining to undertakings and one question refused, was addressed via a process established pursuant to my November 27, 2020 “housekeeping” endorsement, which endorsement followed the all-day argument of the above-listed four issues. In that endorsement, I stated as follows:
As to the cross-motion, the plaintiff will not presently be seeking the removal of the defendant’s law firm. The issue of an outstanding costs reimbursement to plaintiff for disbursements paid seems to have been regulated, given correspondence dated November 25, 2020. One refusal, and a larger issue amongst the undertakings, is: whether the plaintiff may maintain a claim of “litigation privilege” for the video/audio recording she made shortly after the September 15, 2016 MVA. To facilitate that issue being addressed, we today agreed on a process: counsel for plaintiff will send the video and audio recording to ATC Ms. Parris for me to view and listen to the recording. Then, with that context, we will have a short, reconvened hearing for submissions on this item. In the interim, the plaintiff agreed to deliver a sworn affidavit of documents to defendant, listing this item in Schedule B. The parties will attempt to resolve the other undertakings. If not successful in that regard, these also can be raised when we reconvene. Ms. Parris will under separate cover provide some dates for counsel for that purpose.
I. Proposed Amendments to the statement of defence:
[5] At the hearing, Ms. Ismail appropriately conceded that proposed amended paragraph four was proper. That paragraph reads as follows:
- The Defendants deny any liability for the accident described at paragraph 7 of the statement of claim. The defendants do admit the front of their motor vehicle touched the back of the plaintiff’s motorcycle at a low speed and the Defendants state that the property damage to their vehicle and the plaintiff’s motorcycle was minor.
[6] In my view, this is a proper, factually based pleading. There would be no legitimate grounds to oppose it. Accordingly, I grant the amendment for paragraph four, which was belatedly not opposed. I now turn to the contentious proposed amendments.
[7] Paragraphs seven and eight of the proposed amended statement of defence read as follows:
The Defendants state and the fact is that this was a low speed minor property damage accident, The Defendants state that the Plaintiff has been called to the bar as a lawyer in Ontario, Her employment experience has been primarily in litigation arising from accident benefit and tort motor vehicle accident claims, Subsequent to the subject motor vehicle accident, the Plaintiff attended a seminar discussing the diagnosis and treatment of concussions as they relate to litigation as part of her Continuing Professional Development requirements.
The Defendants allege that through education, training and experience, in particular, taking a course from Mr. Joe Campisi on Insurance Law, articling with FSCO and working for TD Insurance as a defence attorney in insurance matters, the Plaintiff is a sophisticated litigant and is in a position to exaggerate, manipulate and/or or over report any alleged injuries and symptoms which were allegedly sustained as a result of the motor vehicle accident (which are not admitted but denied) in order to try to increase the amount that she can claim from this motor vehicle incident.
[8] As I discuss whether these proposed pleadings are appropriate, reference to foundational principles as established by the Rules is helpful. Rule 26, addressing the amending of pleadings, reads as follows:
On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
[9] From the plain language above, while I acknowledge that defendants only quite late in the day pursue this relief (some forty months after the close of pleadings, thirty-three months following discoveries, and twenty-one months following completing a Trial Certification that the pleadings do not require amendments), all that is not necessarily determinative. After all, the Rule provides that “at any stage of an action” the court “shall” grant leave.
[10] Yet pursuant to the case-law, while amendments are often granted, there is not an absolute right to amend pleadings. If the amendments are not legally tenable, then these will not be permitted. Master Sandler in Panalpina Inc v. Sharma et al, 1988 CarswellOnt 459 (at paragraph 31) addressed both jurisdiction, and what is a tenable pleading, as follows:
I wish to make it clear that a Master still has jurisdiction…to strike out a pleading or a part of a pleading which contains an ‘untenable plea’ but it is essential to understand what is meant by ‘untenable’. An untenable plea is one that is clearly impossible of success at law, that has no legal potential whatsoever, that is clearly unviable or unachievable at law… .
[11] Each specific proposed amendment should accordingly be considered to determine if what is asserted is a viable, tenable plea, or if it is “plain and obvious” that the plea cannot stand. Moreover, the counterpoint to the obviously permissive ability to amend pleadings in Rule 26, is Rule 25.11. That Rule states:
The Court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document:
a. may prejudice or delay the fair trial of the action;
b. is scandalous, frivolous or vexatious; or
c. is an abuse of the process of the court.
[12] The competing elements are “relevance”, as the defendants assert these amendments are relevant and tenable, or whether the proposed new paragraphs are “scandalous”, pursuant to submissions for the plaintiff. The plaintiff appropriately did not submit that the amendments were themselves prejudicial due to the tardiness by when these are being proposed, which resulting prejudice could not be compensated for by costs or an adjournment.
[13] It is well known in law that nothing which is relevant can be scandalous. It is also factually correct that the plaintiff is indeed a lawyer who, before the MVA, briefly practiced in the area in which she has subsequently found herself as a client in this within case. Yet, beyond those facts, one must ask, what is the purpose of these proposed pleadings? What is truly being advanced with these proposed pleas? Justice Dambrot in 876502 Ontario Inc. v. I.F. Propco Holdings (Ontario) 10 Ltd., 1997 CanLii 12196 (On SC) discussed and reiterated the definition of “scandalous” as follows:
The concept of scandalousness is well defined. Scandal refers to indecent or offensive matters or allegations made for the purpose of abusing or prejudicing the opposite party, allegations which are unbecoming of the court to hear, or unnecessary allegations bearing cruelly on the moral character of an individual: see Holmested and Gale, Ontario Judicature Act and Rules of Practice, vol. 2, p. 1196. Relevance only enters the picture if the impugned material is otherwise scandalous. If material is relevant, it cannot be scandalous ((Re Erinco Homes Ltd. (1977), 3 C.P.C. 227 (Ont. Master)); but irrelevant material is not, for that reason alone, scandalous.
[14] Keeping in mind the forgoing, in my view, these two proposed paragraphs, seven and eight, must be considered individually, each on their own merit. To that end, the bulk of proposed paragraph seven is unobjectionable. After all, it is true that the plaintiff is a trained lawyer, and that she worked in the field of insurance law. The last sentence, pertaining to a seminar which the plaintiff attended, on its own only recites a fact (as alleged). It, too, is in the main unobjectionable, and defendants can respond to it by way of Reply, including any amendment to the Reply, if desired. I do not, however, permit the first sentence of paragraph seven, as that is essentially repetitive with, so redundant to, paragraph four. Overall, other than that first sentence, paragraph seven is quite likely relevant if either party seeks to raise issues of the employability, or the lack thereof, of the plaintiff. It is not scandalous. Accordingly, other than the first sentence of proposed paragraph seven, this amendment is allowed.
[15] Proposed paragraph eight, however, in my view is a very different matter. This pleading accuses the plaintiff, unflatteringly described as a “sophisticated litigant” so, accordingly, with the knowledge to accomplish her purportedly nefarious goals, as someone who is “in a position to exaggerate, manipulate and/or or over report”[as in original] for the what the plea strongly implies to be an illicit purpose: “to try to increase the amount that she can claim”.
[16] This pleading thus portrays the plaintiff in a very negative light, “bearing cruelly on [her] moral character”. What is being advanced is essentially calling the plaintiff the next thing to a civil fraudster, alleging that she is trying to obtain more in compensation than to which she arguably may be entitled from an insurer, and that she is purposely doing this by way of exaggeration and manipulation. This proposed pleading seeks to colour the plaintiff negatively, in order to cause her prejudice. These are allegations which, in my view, are unbecoming for the Court to hear.
[17] The pleading also does not advance the case. I find it a pleading with no legal potential other than to besmirch the plaintiff through innuendo. The innuendo is that because she trained as a lawyer, and took a course in insurance law from Mr. Campisi, she is asserted to be using her professional skills to try to obtain, by way of exaggeration and manipulation, more than to which she would otherwise be entitled. This again portrays the plaintiff in a very negative fashion, abusing her by implying that she will pervert the truth and justice, especially given her legal training, for her own self-enriching ends. It is, I find, a highly prejudicial plea.
[18] In my view, if such had been originally pleaded by defendants, on a motion to strike the plaintiff would have succeeded under Rule 25.11(b). For reasons above, I find proposed paragraph eight of the amended statement of defence to be untenable, with no legal potential. It is also a scandalous plea, fitting well within the above definition from Justice Dambrot. Thus, it is not a permitted amendment.
II. To remove counsel for the plaintiff, Mr. J. Campisi, from the file:
[19] Defendants seek to remove the plaintiff’s lawyer Mr. Campisi from the file. Defendants assert that this is because they intend to call Mr. Campisi as a witness, given that, in his role as an adjunct professor at Osgoode Hall law school, in 2014 he taught the plaintiff insurance law. Defendants seek Mr. Campisi to offer testimony (from paragraph three of defendants’ factum):
“…the best evidence with respect to the scope and breadth of the course in relation to personal injury claims, what factors could lead to a more significant result for a plaintiff.”
[20] Defendants further claim that (in paragraph three and reiterated in paragraph 47 of defendants’ factum):
“…the significance of the evidence to be led by Mr. Campisi, as a witness, is paramount, as it will address the Plaintiff's approach and handling of the entire file (my emphasis)”.
[21] There is no dispute that Mr. Campisi, who holds several graduate law degrees, has taught insurance law at Osgoode Hall. The syllabus for his insurance law course is part of the materials. Appearing to me to be quite balanced, not favouring either side of the insurance divide, it reads as follows:
Are personal injury lawyers ambulance chasers? Are insurance companies only interested in denying claims and generating profits for their shareholders? There are many misconceptions about the insurance industry despite the important role that insurance law plays in regulating so many areas of our lives. Through this course, students will achieve a better understanding of the role that an insurance law lawyer plays in advancing and defending claims arising out of a motor vehicle collision, a slip and fall accident, or a long term disability claim. Through a case study approach, student simulations and by tending litigation events involving real litigants, students will experience first-hand the application of insurance law and procedure. This will also involve an analysis of the Rules of Civil Procedure, the Dispute Resolution Practice Code and case law generated by both the Financial Services Commission of Ontario and multiple levels of the Superior Court of Justice. Students are required to participate in at least two of the following insurance litigation events throughout the term: an examination for discovery, a mediation session, a pre-arbitration hearing, a pre-trial hearing and a day of trial. The course instructor will facilitate this process. Students will be required to prepare a paper of 5 pages at the end of their first real world Litigation experience before embarking on their second event. Evaluation: Participation (10%), Reflective Paper (20%) and final examination (70%).
[22] There is also no dispute that the plaintiff was one of his students, amongst thirty, in his class in the Fall of 2014.
[23] Based on all this, it is the premise of the defendants that Mr. Campisi’s testimony will be “paramount” because, as is asserted above, his testimony will reveal all what the plaintiff learned in his class, to further her own interests, presumably, in her pursuit of this within litigation. This assertion is notwithstanding the evidence from the plaintiff, albeit second-hand through Mr. Campisi’s associate Mr. Peter Murray, that Mr. Campisi had no independent recollection of this one student from several terms and almost two years previous to the MVA.
[24] The professed critical need of the defendants to have Mr. Campisi testify about either the nature of his insurance law course and what he teaches his students including the plaintiff, or about the plaintiff’s approach to her file, strikes me, at this preliminary stage, as thin and speculative gruel in and of itself. It seems a reach. Yet, it is possible that, as other evidence goes in at trial, the trial judge may, at that later stage, view the matter differently. Why Mr. Campisi’s disqualification as counsel in this matter is ostensibly currently sought, however, is because defendants have presently made clear that they will definitely seek to call Mr. Campisi as a witness at trial. As such, defendants assert that a conflict would be created as relates to (from paragraph 35 of their factum):
…the administration of justice, creating a conflict between counsel’s obligation of objectivity and detachment, which are owed to the court, and his obligations to his client to present evidence in as favourable a light as possible.
[25] Counsel for defendants do acknowledge, at paragraphs 37 of their factum which refers to MacCharles v IS5 communications Inc., 2020 ONSC 525 at paragraphs 25-26, that:
It has been held that an advocate's credibility can be impeached where the advocate has a common interest with a witness in the accuracy of that witness' evidence. As such, where a lawyer is determined as a necessary witness, he/she should testify and entrust the conduct of the case to someone else. The prohibition against a lawyer acting as a counsel where a member of his or her firm is likely to be a witness is not absolute, and the Court has adopted a flexible approach that considers a number of factors including: the stage of the proceeding, the likelihood that the witness will be called, the good faith of the party making the application, the significance of the evidence to be led, the impact of removing counsel on the party's right to be represented by counsel of choice, the likelihood of a real conflict arising or that the evidence will be tainted, who will call the witness and the connection or relationship between counsel, the prospective witness, and the parties involved in the litigation (my emphasis) .
[26] On that basis, only Mr. Campisi, and not his firm, is presently sought to be disqualified. Whether that distinction in this case is practical, however, is another question. I do not see how, for example, Mr. Campisi could be cross-examined and, in front of a jury, contradicted by one of his associates. Yet devising appropriate safeguards, should it be found necessary for trial fairness and permitted that Mr. Campisi testify, would be for the trial Judge.
[27] The seminal Supreme Court of Canada decision of MacDonald Estate v. Martin 1990 CanLii 32 (SCC) addresses the importance of maintaining the integrity of the justice system. Yet the obligation to maintain the high standards of the profession, and the integrity of the justice system, must be factored in with the also very important, yet not absolute, right of a party to their own choice of counsel in whom they have trust and confidence.
[28] Regarding those competing obligations, both parties referred me to Mazinani and Bindoo 2013 ONSC 4744, and the test therein enunciated. This test was recently summarized in Rudan v. Chapman et al., 2019 ONSC 6247 as follows (at paragraph 28):
The case-law in this regard was thoroughly summarized by Master Glustein (as he then was) in Mazinani and Bindoo 2013 ONSC 4744. At paragraphs 60 and 61, Justice Glustein posed the following question: would a fair-minded, reasonably informed member of the public conclude that the proper administration of justice requires the removal of the lawyer? He added that “such determination is objective, fact-specific and based on an examination of all factors in the case”(my emphasis).
[29] Accordingly, objectively considering further the specific facts and all factors in this matter, I observe that the plaintiff is not related to Mr. Campisi. The plaintiff never worked for Mr. Campisi. She neither was a summer student nor an articling student, let alone an associate, at his firm. There is also no evidence of any social relationship between them, such as being neighbours or being casually acquainted. There is therefore certainly no inherent actual or potential conflict on that basis.
[30] The sum total of any possible knowledge which Mr. Campisi had of the plaintiff, before she retained him in his professional capacity, was only when she took his insurance law course while she was a student at Osgoode Hall. As noted, the evidence is that he has no memory of her from his class. I find this unsurprising given the passage of years and that there were 30 students, that term, in the class. Yet, the premise of defendants is that, because he taught her insurance law, “the evidence to be led by Mr. Campisi, as a witness, is paramount, as it will address the Plaintiff's approach and handling of the entire file” (my emphasis; again, from paragraphs three and forty seven of defendants’ factum).
[31] Factually, I find that rationale of the defendants for seeking to call Mr. Campisi to be unlikely to generate whatever information defendants hope to obtain. That is because I doubt Mr. Campisi, from teaching the plaintiff, along with the many other students in his class, knows her all that well, or well enough at all to opine on her “approach and handling of the entire file”. The evidence, again, is that he had no independent recollection of her from his class.
[32] Yet, even if Mr. Campisi can shed such light, by offering his opinion on the purported motives of the plaintiff as pertains to her file, and even if such opinion evidence would be proper for a fact-witness (I doubt that it would be), would not what he knows about her approach and handling of this file be in any event cloaked by solicitor-client privilege? It would be I suggest difficult, if not impossible, to parse out what Mr. Campisi may have known about her from when the plaintiff was in his class, to what he understands to be the theory of her case as he years later developed it, quite possibly with the plaintiff being more active in that regard given that she is a lawyer, than would be most of his other non-legally trained clients. Yet just because the plaintiff in this case is a lawyer does not mean that her motives are more relevant than are those of any other plaintiff in an MVA case. Moreover, just as in most other such cases, the lawyer of the plaintiff is not called upon to testify as to the motives of his or her client, or what his or her client knows about any particular subject, legal or otherwise. The plaintiff can likely be questioned on such issues (subject to the trial judge), yet not her lawyer.
[33] As to “evidence with respect to the scope and breadth of the course in relation to personal injury claims”, it is seemingly not in dispute what Mr. Campisi taught the plaintiff and others in his course. The course syllabus and other materials are available to be admitted into evidence, as are the texts on insurance law on which the course material is at least in part based. None of that information is controversial should defendants wish to lead such evidence as to what the plaintiff likely learned in her insurance law class. The plaintiff can also be, subject to rulings by the trial judge, likely questioned about what she learned, with her being pointed to such relevant material if and as may be required. Yet defendants do not, at least in my view and always subject to the trial judge later concluding otherwise, likely need Mr. Campisi’s testimony about this. The evidence about the course material can be admitted in various efficient ways as the Rules permit, without a witness necessarily testifying.
[34] Overall, in this case, for these reasons I find that Mr. Campisi will at best be a quite tangential and insignificant witness at trial, if defendants carry through on their stated intention to summons him as a witness, and if he is allowed to testify.
[35] I again reference above-excerpted paragraph 37 of the defendants’ factum (at paragraph 25, herein). To bring this application for removal now, approximately five months before trial, when Mr. Campisi has been counsel for the plaintiff from the outset of this action, is very late. While there are no doubt members of Mr. Campisi’s firm who could help ready the case for trial, depriving the plaintiff of her choice of lead lawyer I find is likely very prejudicial to her. Being only made at this late stage, in my view there is likely more than a whiff of tactics to this quite thinly based application for removal.
[36] For all these reasons, accordingly, I do not order Mr. Campisi removed as plaintiff’s solicitor. Yet this is without prejudice to the defendants to re-visit this issue, if they so desire, with the trial judge. The trial judge will be, as discussed in the Mazinani and in the Rudan decisions referenced above, in the best position to determine, first, if Mr. Campisi must testify and, if so, how this will be accomplished to preserve both trial fairness and the integrity of the justice system.
III & IV. To have the plaintiff attend certain Independent Medical (and one non-medical) Evaluations (for convenience, called “IME’s”), & To have counsel for the plaintiff stop writing to the evaluators selected by the defendants:
[37] These next two items are, in my view, linked, so I address them together. Defendants, pursuant to Section 105 of the Courts of Justice Act and Rule 33, seek the plaintiff to attend three IME’s: orthopaedic surgeon Dr. Marks, Neuropsychologist Dr. Wiseman, and a vocational assessor, Ms. Clady. Defendants also seek to stop counsel for plaintiff from further writing to these individuals, given what defendant claims is the likely harassment of them, which tactics of the plaintiff has already led a prior defence expert to quit the file. It is submitted that allowing the plaintiff to communicate with defendants’ experts will continue to frustrate the defendants’ opportunity to have these experts perform their respective assessments.
[38] At paragraph 20 of plaintiff’s factum, it is asserted that, “Ms. D'Eon wishes to attend at any examination that serves a legitimate purpose, once she has been properly informed as to the purpose for the examination with enough specificity so that she can provide informed consent (as in original)”. Yet, seeking that supposed “informed consent” has led various lawyers for plaintiff on this file to write to the medical professionals engaged by defendants, purporting to impose strict terms upon these evaluators and, in one case, in advance admonishing them against the use of “ghost-writing”. I will set out that example of inappropriate correspondence subsequently.
[39] Contrary to the plaintiff professing to be willing to attend at an IME, the actual conduct of counsel for the plaintiff is, in my view, one of imposing road-blocks and barriers in an effort to thwart such examinations from happening, unless on plaintiff’s own very limited and favourable terms which they have attempted to dictate. Yet, it is not their examination to control. The plaintiff does not thus set the terms. The Court, however, may do so if there are legitimate concerns.
[40] In this case, the defendants seek to have their evaluators assess the plaintiff. Given the nature of the process, notions of doctor-patient relationships or confidentiality do not apply to these examinations. Yet counsel for plaintiff has nevertheless referred to these notions in some of their correspondence. Obviously, the assessor will provide his or her findings to the defendants. Information arising from the assessment, which would otherwise be confidential but for the exceptions as provided for in the Rules and the relevant section of the Courts of Justice Act, is sent to the defendants, who are opposite in interest to the plaintiff in this litigation. So, clearly, confidentiality does not arise as between the defendants’ counsel and the party being evaluated, the plaintiff. Nor does a doctor-patient relationship arise between plaintiff and the evaluators. Yet, pursuant to Rule 33.06(2), defendants must send the assessments received to counsel for the plaintiff. Whatever the defendants obtain in this regard, the plaintiff equally sees it.
[41] To provide context as to why counsel for defendants are concerned, and wish to have plaintiff cease writing to its retained experts, herewith the May 1, 2019 letter of Mr. Campisi to Neuropsychologist Dr. P. Comper, who was originally to perform that IME on the plaintiff:
I hope you are well. You will be performing a defence medical examination on my client on Friday, September 13, 2019. Can you please forward any forms my client is required to complete to my attention so that they can be reviewed in advance. I will also forward you my client's consent prior to the scheduled examination. My client will not sign any waiver form. If you do require any documents to be signed, please forward them to me for my review. Also, we ask that you will not prepare any supplementary reports or addenda without obtaining further written consent from my client in writing. Sections 1.3 and 1.11 of the Professional Misconduct Regulation, O. Reg. 801/93 states that performing a professional service for which consent is required by law is an act of professional misconduct, and I will not allow my client to be assessed by a physician in violation of this Regulation. Also, please confirm that you will not disclose any information to any persons other than counsel for the Defendant, myself and members of my firm, and my client. Section 1.11 of the Professional Misconduct Regulation, O. Reg. 801/93 states that it is an act of professional misconduct to give information concerning the condition of a client or any services rendered to a patient to a person other than the client or his or her authorized representative except with the consent of the patient or his or her authorized representative as required by law. I have a particular concern about the possibility of the resulting defence medical report being "ghostwritten" or altered by third parties, which, as you know has been a newsworthy issue of late, As such, I will not agree for my client to be assessed unless this condition is complied with. I understand that you may require the use of a typist. If that is the case, we ask that you maintain an audit trail of any person that handles my client's personal information as per your professional obligations. We note that the College of Psychologists of Ontario's Standards of Professional Conduct (2017) defines "client" as "an entity receiving psychological services, regardless of who has arranged or paid for those services" and that "client is synonymous with a "patient" with respect to the administration of the Regulated Health Professions Act (1991)." Finally, please advise if you will consent to the videotaping of the defence medical assessment.
[42] In my view, this letter was extremely heavy and high-handed in its various admonishments and diktats; and fairly would be perceived as threatening in tone and content. Referring to professional misconduct, and to ones regulatory body, for example, can in the context of this letter clearly be seen, reasonably, as a threat or as an attempt to intimidate.
[43] After Dr. Comper declined to perform an IME on the plaintiff, one of the lawyers for the defendants wrote Dr. Comper to ascertain his position. Dr. Comper responded on October 26, 2020, as follows:
Thank you for your email of October 23, 2020 with respect to the above matter. I recall this very well. I had accepted the referral of this client from Ms. Hannigan. The neuropsychological assessment was to take place on September 13, 2019. On May 1, 2019, I received the letter from Mr. Campisi, in which he laid out various 'ground rules' for the assessment beforehand. I felt that Mr. Campisi's direct contact with me, unbeknownst to Ms. Hannigan beforehand, was inappropriate, and that his demands were untenable. For example, he requested that I forward "any forms" that his client would be required to complete "so they can be reviewed in advance", In the context of a neuropsychological assessment, which relies heavily on validated, proprietary test manuals, forms and response sheets (for documentation/scoring purposes), his demand would have been, 1) ridiculously impractical, 2) unethical and, due to copyright laws, 3) illegal. Other demands, such as his stipulating conditions regarding report writing, supplementary reports, and an "audit trail" of "any person that handles my client's personal information", while perhaps understandable, I nevertheless felt was an attempt to intimidate me (which it did not). Mr. Campisi's last request, i.e., whether I would consent to have the assessment videotaped - especially considering the totality of his other stipulations - I felt was patently ridiculous. Consequently, with all of Mr. Campisi's demands and veiled threats laid out months before I had even met his client, I became concerned about remaining impartial. As such I called Ms. Hannigan and informed her I would not proceed with the assessment. I also considered filing a complaint with the Law Society, but in the end did not want to waste further time on the matter. Therefore the answer to your question, as to whether Mr. Campisi's correspondence impacted my decision to participate in the assessment, is an unqualified "yes".
[44] Dr. Comper’s decision to quit the file was in my view justified; and his above explanation for why he did so, not surprising.
[45] Moreover, this was, unfortunately, not the only letter. In other words, it was not an exception but rather, a modus operandi of the plaintiff’s firm for this file. On July 22, 2020, for example, counsel for the plaintiff Mr. Murray wrote to Dr. Wiseman, who was next in line as the Neuropsychologist assessor after Dr. Comper quit the file. Without further elongating these reasons by excerpting the entire letter, I observe that counsel again attempted to spell out to Dr. Wiseman the purpose of the evaluation, which counsel purported to limit, and he also described what Dr. Wiseman would do as part of the assessment in quite pejorative and negative terms. This letter was equally inappropriate as was the one which Mr. Campisi sent to Dr. Comper.
[46] Simply put, if a party is entitled to an IME, if the Court so orders or if (as can regularly be the case) it is on consent, then the party requesting the examination gets to set the terms. If there is disagreement, that is when the court performs its function pursuant to the Rules. Yet it is not appropriate for counsel opposite to write diktats and imply threats of professional misconduct complaints to the medical professionals whom the other side has involved.
[47] In this case, too, in addition to inappropriate correspondence to the evaluators, counsel involved exchanged emails which became increasingly discourteous. These were in the context of counsel for plaintiff claiming to acquiesce to the plaintiff attending evaluations, yet at the same time providing a laundry-list of conditions which made the “consent” a sham. Counsel should recall that, while this is obviously an adversarial process, counsel still have an obligation to act with courtesy and respect to each other. Unfortunately, some of the emails, by Mr. Murray, were anything but respectful or courteous. For example, sent on 6/04/2020, Mr. Murray wrote to Mr. Chorley of the defendants’ firm, in part the following:
We look forward to your response in a matter indicating an escalating aggressive tone and context seeking to use the rules as a weapon to vex the plaintiff. I trust this was not your intent and you know your place sir (my emphasis).
[48] If correspondence in the record is written when tempers are high, or when someone is being unduly aggressive, such may paint an unflattering portrait of the writer. Care should be taken by counsel to treat each other as they would wish to be treated: with courtesy and respect.
[49] Before turning to the specific request of the defendants for these IME’s, I address whether I have jurisdiction to preclude counsel for plaintiff from writing to the defendant’s selected experts. Plaintiff argues that this would be akin to an injunction, and thus beyond my jurisdiction. Plaintiff relies on PIPEDA and some case-law from the Federal Court which, after review, I find to be of no applicability or relevance to this issue.
[50] In my view, the question in this Tort/MVA case is governed by the Rules and the Courts of Justice Act. It is very much a stretch for plaintiff to import federal Acts into this matter, despite the admittedly creative argument made in that regard. Instead, I find that Rule 33.03 is a good place to begin. That Rule provides that:
The court may on motion determine any dispute relating to the scope of an examination.
[51] As such jurisdiction is to “the court”, it clearly is within the jurisdiction of a Master. Moreover, “any dispute” is very expansive language. Clearly, the intent was to allow any such dispute that could conceivably arise be addressed at one level, in one place, efficiently, without necessarily having to send parties back and forth between a Master and Judge. Efficiency in processing civil actions to obtain “the just, most expeditious and least expensive determination”, after all, is an underpinning premise of the Rules as set out in Rule 1.04.
[52] A dispute over the scope of an examination, issues regarding who can write to the examiner and thus thwart the exam by causing the doctor to conclude that the matter is all too fraught (as actually occurred in this case with Doctor Comper), are I find clearly within my jurisdiction. It is, as was discussed by Justice Doherty of the Court of Appeal in Bellamy v. Johnson, 1992 CanLII 7491, pages 3, 8, within the power of a Master to order how the IME is conducted. The Court found that:
the plaintiff has no right to determine how the examination is to be conducted or whether it is to be recorded. However, the judgment of the doctor…is not final and the court has jurisdiction to set terms and conditions… .
[53] Again, the Court of Appeal noted that it is for “the court” to set terms and conditions, not “a Judge”. This is akin to other decisions wherein the Master controlled such processes. See, in that regard, Sousa v. Akulu, 2006 CanLII 25417 (ON SC), 2006CanLii 25417, at paragraph 16, and Jilla v. Ribeiro, 2009 CanLii 13630, paragraph 17, quoting therein another decision.
[54] Accordingly, as it is for me to set the terms and conditions in this case, I find that I have jurisdiction to direct all counsel for plaintiff to not communicate further to or with defendants’ experts. Given the actual and further potential deleterious impact of such communications, and that it is frankly improper for the plaintiff to attempt to impose terms on the defendants’ experts, I so direct that all such communications cease.
[55] This direction is in my view consistent with Bellamy, supra, wherein the Court of Appeal discusses the unique nature of what was then called a “defence medical”. More recently, my colleague Master Jolley in Valente v. City of Toronto, 2018 ONSC 4991, in a comprehensive decision, discusses that the plaintiff cannot impose conditions on the assessor, including that the assessor not prepare a supplementary report absent the plaintiff’s further consent (which is what the plaintiff in this within matter also purported to ask Dr. Comper, and has made various similar demands of Dr. Wiseman).
[56] Notably, Master Jolley found that Rule 33 and Section 105 of the Courts of Justice Act:
…operate as a complete code and procedure for the conduct of court ordered IMEs and the consent of a party is not required when a court has ordered the examination to take place (my emphasis).
[57] In my view, that is on its own a full answer to the plaintiff’s creative attempt to link in federal Acts. Rather than those federal Acts, one looks to the applicable provincial “complete code”.
[58] Master Jolley further addresses the issues, after referencing the Bellamy decision, in part as follows (paragraphs 17-19 of her decision):
The plaintiff argues that her consent to an initial independent medical examination or a court order requiring such an examination does not cover the preparation of a supplementary report by that same health practitioner and the plaintiff’s further consent or a further court order is required. I do not accept this position for three reasons. First, the requirement that a health practitioner who prepares a medical report may be called on to provide a supplementary report is implied in the Rules. An independent medical examination report prepared at the outset of litigation may become out of date by the time the matter gets to trial. The Rules mandate that an expert may not testify with respect to an issue unless the substance of that testimony is with respect to an issue set out in the initial report or in a supplementary report that is served not less than 30 days before the commencement of trial. Absent such a report, the health practitioner is significantly restricted in the evidence he or she can provide on the stand to assist the court. Second, in cases of supplementary reports, the court will have already ordered the plaintiff to undergo a specific examination with a specific health practitioner or the plaintiff will have consented to such an examination. From a policy perspective, it would be unwieldy and expensive to require a defendant to return to court simply to permit the health practitioner to prepare the supplementary report that he or she likely needs to do to be permitted to testify at trial. I find that such an interpretation leads to the opposite of the “just, most expeditious and least expensive determination of every civil proceeding on its merits” as required by Rule 1.04. Third, such an interpretation effectively gives the plaintiff a veto over the introduction of evidence from a health practitioner whom the court has already found is appropriate. This does not just “level the playing field”, as was suggested. In such a scenario, the defendant would be faced with the choice of hiring a new health practitioner acceptable to the plaintiff with that attendant expense, or going back to court for a further order allowing his or her health practitioner of choice to prepare the supplementary report.
[59] In my view, Valente is very similar to the facts of the case before me. I find the analysis of my colleague applicable to this matter, and it well addresses completely the issues which the plaintiff has raised before me. Again, it is not for the plaintiff to try to impose terms upon these evaluators, or on the evaluations and how these occur.
[60] Should the requested IMEs sought in this case be allowed to proceed? In my view, the defendants are within their rights to seek such examinations. Paragraph 10 of the claim clearly puts in issue the “cognitive and organic impairments” of the plaintiff, asserting that “the full extent of injuries are not yet known”, but will be before trial. Paragraph 11 refers to “permanent and serious impairments of physical, mental, and psychological functions” of the plaintiff. Orthopaedic and neuropsychological issues are thus seemingly likely relevant, and areas to be appropriately evaluated by defendants.
[61] As pertains to the vocational assessor, this too is reasonable, given the claim of the plaintiff that she is fully disabled from working as a lawyer for the long-term, and thus entitled to over four million dollars in damages. What work, as a lawyer or otherwise, can she do, if any at all? This is a reasonable question for the defendants to pose in the circumstances of this case, and an issue which they are entitled to investigate.
[62] I thus order the three IME’s sought by the defendants to proceed, without conditions.
Remaining Issues:
[63] The remaining issue is that of “litigation privilege” for the video/audio taken by the plaintiff shortly after the MVA having occurred. Costs will also have to be addressed. Turning briefly to costs, it appears that success was somewhat divided. Defendants were able to amend the defence, yet only in part, they failed in removing Mr. Campisi from the record, while the defendants succeeded in obtaining direction for the IME’s to proceed, and for plaintiff to cease communicating with those conducting the IME’s. One reasonable outcome may well be no costs to either party, given that both parties engaged in some tactical overreach as I have found herein.
[64] Yet Costs will be addressed when this motion is returned to argue the remaining issues.
Master J. Josefo