Court File and Parties

COURT FILE NO.: CV-17-424 DATE: 2021 02 22 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Johanna Van Dijk-Alac and John Alac Plaintiffs

– and –

Aviva General Insurance Company, and Frederick Samuel Mollison and Frederick James Mollison Defendants (Moving Party)

BEFORE: Justice G.D. Lemon

COUNSEL: Alden M. Dychtenberg and Yasar Saffie, for the Plaintiffs Christopher Missiuna, Counsel for the Defendant Aviva Insurance Dyer Brown, Counsel for the Defendants Mollison (not in attendance)

HEARD: January 18 and 25, 2021

Endorsement

The Issue

1 The defendant, Aviva General Insurance Company, moves for an order:

1. permitting Aviva to amend its Statement of Defence;

2. requiring the plaintiffs to attend and participate in defence medical examinations as follows:

   Psychiatry Examination a. that the plaintiff Johanna Van Dijk-Alac attend at a complete psychiatric examination with psychiatrist Dr. Hy Bloom or psychiatrist Dr. Chaimowitz beginning on a date to be agreed upon; b. that, at the discretion of the psychiatrist in order to develop his opinion, the examination may be extended to take place across multiple days to allow for a fulsome and complete assessment; c. that the plaintiff John Alac be available to be examined by the psychiatrist in relation to the claims of Ms. Van Dijk-Alac and in relation to their joint claim of damage to their marriage;

   Neuropsychological Examination a. that Ms. Van Dijk-Alac attend at a complete neuropsychological examination in-person with neuropsychologist Dr. Larry Freedman on dates to be agreed to and across as many days as is required to complete the examination; b. that, at the discretion of the neuropsychologist in order to develop his opinion, the examination may be extended to take place across multiple days to allow for a fulsome and complete assessment; c. that the plaintiffs do not take any action that will contaminate or prejudice the neuropsychological examination; and

   Orthopaedic Examination a. that Ms. Van Dijk-Alac will attend at the office of Dr. Erin Boynton (orthopaedic surgeon) on February 24, 2021 at 11:00 am for a physical examination. b. that in the event any of the specific experts described in the paragraphs above become unavailable, the plaintiffs still attend at the respective examination(s) but that the expert conducting the examination may be changed to another physician with expertise in the same field and at the discretion of Aviva.

3. if necessary, relieving Aviva of its obligation to serve its expert reports prior to the pre-trial of this action.

The Background

2 The plaintiffs claim damages arising out of a motor vehicle accident that took place on March 13, 2017. Ms. Van Dijk-Alac claims that she has psychiatric, neuropsychological, and physical injuries from that accident. Mr. Alac has advanced a claim for lost guidance, care, and companionship as a result of the injuries claimed by Ms. Van Dijk-Alac.

3 The plaintiffs were both named insureds pursuant to a policy of insurance with Aviva and they claim that they are entitled to compensation from Aviva as a result of the contract of insurance. The plaintiffs’ insurance policy includes coverage for damages caused by an unidentified motorist. The evidence to date suggests that there may have been an unidentified motorist who caused the accident.

4 The plaintiffs also claim from the Mollison defendants, but those defendants take no part in this motion.

5 The plaintiffs have retained and served the opinions of a:

(a) kinesiologist and occupational therapist dated September 16, 2019; (b) psychiatrist dated September 25, 2019; (c) neuropsychologist dated December 3, 2019; (d) physiatrist dated May 20, 2020.

6 Aviva has provided notice of its requirement that the plaintiffs attend and participate in medical examinations. Aviva says that in mid 2020, the plaintiffs refused to comply with attendance at examinations as required by their contract of insurance. The plaintiffs deny that.

7 Ms. Van Dijk-Alac has agreed to attend an examination by the defence psychiatrist, but not in the manner alleged to be required by Aviva.

8 Aviva says that the plaintiffs have refused to attend or participate in an examination by the defence neuropsychologist.

9 The plaintiffs have agreed to participate in an evaluation by orthopaedic surgeon, Dr. Boynton.

Authorities

10 Section 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and Rule 33 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, permit the court to order a plaintiff to attend at defence medical evaluations.

11 Aviva says that this is in addition to the contractual obligation of the plaintiffs to participate in such an examination. That term reads:

5.3.6 Medical Examinations May Be Required

You or other insured persons may be required to undergo examinations by a qualified medical or psychological advisor at reasonable intervals. When we require an examination, we will give reasonable notice. We will pay for any examination we require. The person making the claim, or their representative, is entitled to a copy of the medical report, if requested.

12 Sections 105(2) and (4) of the Courts of Justice Act state that where the physical or mental condition of a party to a proceeding is in question, the court may order the party to undergo a physical or mental examination by one or more health practitioners. The order is a discretionary one. The court may order further medical examinations on such terms as are just, but the defendant is not entitled to multiple medical examinations as of right.

13 In Nelson v. Thiruchelvam, [2005] O.J. No. 743, Master Haberman stated:

21 ...[T]he general principle that appears to emerge from the cases is that the moving party must provide evidence that add resses why they seek particular examinations and the basis for seeking that relief must be clear and compelling. The courts tend to allow additional examinations where it appears necessary to “level the playing field”. For example, where a plaintiff has been seen and/or treated by a series of specialists, the court may determine that it is appropriate for the defendant to have the plaintiff seen by the physicians of their own choosing who practice in the same areas. However, even that is not automatic. There must still be some effort made to demonstrate why an examination by that particular specialist is needed.

22 The evidence on these motions is critical, and the results will vary from case to case depending on the nature and quality of the evidence filed … At the very least, the evidence must explain why the particular examination is required. This means setting out the nature of the specialty of the proposed physician; indicating the type of evidence they can provide and explaining why it is necessary in the context of the injuries and symptoms complained of and the evidence already tendered by the plaintiff. In other words, what evidence will the plaintiff be calling at trial that must be add ressed by this particular defence expert?

14 In the leading case of Bonello v. Taylor, 2010 ONSC 5723, Brown J. (as he was then), said:

[16] Although the determination of whether to order a second or further examination by a health practitioner must turn on the specific facts and equities of a case, a body of case-law has developed around when a second or further examination may be ordered under CJA s. 105 and Rule 33. The leading principles can be summarized as follows:

(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. . . 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. . .

(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. [Citations Removed]

Analysis

Amendments to Pleadings

15 The plaintiffs issued their claim on October 13, 2017. At that time, Aviva was the only named defendant. Aviva prepared and filed a Statement of Defence in March of 2018.

16 In January of 2019, the plaintiffs issued an Amended Statement of Claim to add Frederick Mollison as another defendant. They allege that he may have been the driver at fault. The plaintiffs then issued an Amended Amended Statement of Claim on January 22, 2019 to make both Frederick Samuel Mollison and Frederick James Mollison defendants as the driver and owner of the at fault vehicle.

17 Aviva wishes to amend its Statement of Defence to add allegations concerning the Mollison defendants and to add the defence that the plaintiffs have been noncompliant with their insurance policy. Aviva says that it has not had the opportunity to address the addition of the new parties.

18 The plaintiffs consented to the amendment after Aviva made its submissions on the second day of the motion. It is not readily apparent why they waited to do so until that moment. This part of the motion was brought because plaintiffs’ counsel wrote on September 16, 2020: “We will not consent to your amendment.” The plaintiffs’ factum reads:

Regarding Aviva’s wish to amend its Statement of Defence, the plaintiffs did not consent to the proposed amendment because they did not understand the allegation being made. They have no obligation to consent to the amendment which would signify agreement to the allegation.

19 Rule 26.01 of the Rules of Civil Procedure states:

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.

20 The plaintiffs do not allege any such prejudice. Counsel provided no legal authority to support the submission that consenting to an amendment signifies agreement. Common sense suggests otherwise. Counsel has provided no evidence of what steps had been taken to understand the proposed amendment.

21 All counsel have an obligation to consent to that which should be consented. Such a consent saves the court’s time and client’s money. Both are valuable. The failure to consent to this amendment can be dealt with in the costs decision arising out of this endorsement.

22 On that basis, Aviva is granted leave to amend its statement of defence in accord with the notice of motion.

Defence Medical

23 Some of the requested orders can be dealt with without much comment.

24 Pre-trials can only be effective or useful with full preparation by all parties. Late filing of expert reports will only serve to delay this long drawn out proceeding. Each party blames the other for that delay. I need not resolve that except to avoid adding further delay. All parties shall comply with the rules of filing prior to the pre-trial.

25 To assist, on January 21, 2021, Central West RSJ Ricchetti posted:

Central West Region Notice to Counsel Late Electronic Filing of Materials The electronic filing of court documents must comply with the Rules and the Regional Notice to the Profession. The late filing of electronic materials, such as pre-trial conference briefs; conference briefs, factums, and supplementary affidavits, has become a serious problem in the Central West Region. Late-filing of documents takes an already overworked court staff away from other pressing responsibilities. Staff must first find the late filed documents, record the receipt of the documents, store the document and then forward it to the presiding judge. Quite often, the document either cannot be found or the presiding judge gets the document too late to review. Changes need to be made to encourage counsel to file documents in time. This Notice is intended to inform members of the Bar that, in the future, late-filed documents will not be forwarded to the presiding judge prior to the hearing. Counsel will have to seek leave at the hearing from the presiding judge to file the materials. Leave may or may not be granted. In any event, even if leave is granted, the presiding judge will not have had an opportunity to review the document prior to the hearing. The presiding judge will have the discretion to proceed with the hearing, subject to any directions, or to adjourn the hearing and impose cost consequences on the party filing the late document. If a hearing is adjourned in these circumstances, absent a court order, the hearing will not be given priority in rescheduling. This may result in a serious delay in rescheduling of the hearing.

26 The plaintiff specifically consented to the examination by Dr. Boynton. If necessary, an order will go in terms of the notice of motion.

27 Aviva exaggerates when it says that the plaintiffs have refused to attend the examinations. Such hyperbole is not of assistance to anyone. Instead, the one examination that was agreed upon was cancelled by Aviva. The parties have otherwise had legal and factual arguments about how the examinations were to occur. There has been no outright refusal by the plaintiffs.

28 Aviva wishes to have the following medical examinations conducted:

a. A psychiatric/psychological evaluation of the complaints of Joanna Van Dijk- Alac as well as of the complaints of John Alac (either Dr. Hy Bloom or Dr. Chaimowitz). b. A neuropsychological evaluation of the complaints of Joanna Van Dijk-Alac concerning her complaints of cognitive issues (Dr. Lawrence Freedman).

29 To date, the plaintiffs have claimed that Johanna Van Dijk-Alac will agree to attend at a physical examination and at “one psychological examination”. The plaintiffs have so far refused to attend at two or three shorter evaluations with a psychiatrist. The plaintiffs have so far refused to have John Alac participate at all. The plaintiffs have so far refused to participate in separate evaluations by a psychiatrist and a neuropsychologist.

30 The issues between the parties essentially boil down to five questions:

1. Can the defence choose and change the doctor who carries out the examination at its discretion?
2. Can the examining doctor carry out an extended examination at the discretion of the doctor?
3. Is Aviva entitled to both a psychiatric and neuropsychological assessment?
4. Can a plaintiff who has a claim for lost guidance, care, and companionship be required to attend an examination, either of his own self or as a participant in the examination of the injured plaintiff?
5. Do the plaintiffs have an obligation to attend a defence medical examination pursuant to the provisions of its insurance contract with Aviva?

i. Choice of Expert

31 As set out above, the analysis of a defence medical request considers the “particular specialist” or the “proposed physician” in order to “enable the defendant fairly to investigate and call reasonable responding evidence at trial.” Without knowing who is to do the examination, I cannot carry out that analysis. To the extent that Aviva seeks to have the discretion to change the assessor in question, that request is denied.

ii. Extended Examination

32 Aviva had initially moved for a psychiatric examination by Dr. Bloom. Only in its factum and part way through argument, did it ask for an examination by either Dr. Bloom or Dr. Chaimowitz. The motion was adjourned, and a new notice was served and filed.

33 The plaintiffs’ reports suggest that Ms. Van Dijk-Alac had difficulties completing her assessments by her own doctors. In scheduling its psychiatric assessment, Aviva says that it attempted to accommodate the plaintiff and the challenges posed by the COVID-19 pandemic. Aviva says that Dr. Bloom commented that it would be more effective to conduct a series of shorter discussions (some virtually) rather than one long discussion.

34 The plaintiffs originally objected to Dr. Bloom because they said, in effect, that he was not qualified; however, they decided to “get on with it.” That was the examination that was cancelled by Aviva. The plaintiffs do not object to an examination by a psychiatrist; only the manner in which it is carried out.

35 In the record, there is no evidence from Dr. Bloom. I have only a curriculum vitae for Dr. Chaimowitz.

36 The plaintiffs advised Aviva that “If the attendance on September 10 [with Dr. Bloom] cannot be completed because our client advises of fatigue, she would of course come back for a second day.”

37 Further, “We have no idea what Dr. Bloom plans to do that will take 3 sessions but if you care to provide details, we will take the issue up with our client again”. From my review of the record, Aviva has given no answer to that question except for Aviva’s counsel to say:

It is quite costly for us to have Dr. Bloom “on deck” for a full day that may or may not be possible and then to pay him again for another day. We’ve offered to split this up which I think will lead to more success. We’ve also offered to ask Dr. Bloom to make the trip out if that is simpler.

I would prefer to at least have two shorter visits scheduled which presents a more reliable way for this to proceed and avoids all sorts of risk about unnecessary disputes about the plaintiff's fulsome participation, etc. and means we only have to fund Dr. Bloom for actual assessments rather than, potentially, a cut assessment where he already has blocked off the rest of the day. I would think this would ultimately lessen the burden on the plaintiff ultimately. This step seems to be the more practical and cautious approach.

38 From that, I take it that the only reason for the requested order is Aviva’s hope to save costs and reduce Ms. Van Dijk-Alac’s stresses. The cost to the party is not a factor I would find determinative. There is nothing in the record that would confirm the medical necessity for three attendances. Ms. Van Dijk-Alac completed her own psychiatric assessment in one day and has confirmed her requirement to reattend if she is unable to complete the defence examination in one appointment.

39 While Ms. Van Dijk-Alac must attend and participate in a psychiatric examination, without evidence of a medical requirement in advance, I am not prepared to order that she attend a specific number of times.

[40] Despite the plaintiffs’ expressed concerns about Dr. Bloom, Aviva chose Dr. Bloom. Ms. Van Dijk-Alac agreed to attend upon Dr. Bloom. The first notice of motion specified Dr. Bloom. I have little information with respect to Dr. Chaimowitz other than his curriculum vitae. Barring agreement of the parties, the examination shall be by Dr. Bloom.

iii. Examination of Mr. Alac

[41] Aviva’s first notice of motion sought an order that John Alac:

Attend at an approximately half day evaluation with psychiatrist Dr. Hy Bloom either virtually or in-person after the meeting described in paragraph 2a(i) and at the request of Dr. Hy Bloom

[42] On the second attendance, that request was amended to read:

That the plaintiff John Alac be available to be examined by the psychiatrist in relation to the claims of Johanna Van Dilk-Alac and in relation to the Plaintiffs’ claim of damage to their marriage.

[43] Aviva specifically withdrew a request for an assessment of Mr. Alac. Rather, it says that it wishes to have Mr. Alac available at the assessment “because Mr. Alac participated in a number of the Plaintiffs’ produced expert reports.” Aviva submits that it simply wants the same information that the plaintiffs’ expert had with respect to the effect of the accident on the marriage and to fill in collateral information that Ms. Van Dijk-Alac could not provide.

[44] It is agreed that both plaintiffs obtained psychological counselling and claimed martial stress as a result of the accident. Both plaintiffs were involved in the reports by their psychologist and psychiatrist. It is the extent of that marriage counselling and Mr. Alac’s participation in the assessment that is the crux of the issue here.

[45] While the harm to the plaintiffs’ marriage is relevant, there is no need for an assessment of that by Aviva’s medical expert. The parties can testify and be cross-examined about it. They have been examined for discovery. The counselling records – if any – can be produced for consistent or inconsistent evidence. Not every allegation requires expert evidence.

[46] The reports appear to set out all of the information provided by Mr. Alac. Aviva does not point out any information that needs to be added by Mr. Alac.

[47] In Jones v. Ashprior Charitable Foundation, 2011 ONSC 5467, Master Sproat dealt with a similar situation. The plaintiff was a 5-year-old child and the defence wished her mother to attend a defence examination with the child. There, Master Sproat said:

. . . I am of the view that the decision in Barnes v. London (City) Board of Education stands for the proposition that parents can be ordered to attend to answer relevant questions to assist the expert in evaluation [of] the plaintiff’s medical condition where the plaintiff is not in a position to provide the assessor with necessary and relevant information. [Citation removed]

[48] In Barnes v. London (City) Board of Education (1994), 34 CPC(3d) 51 (Div. Ct.), the Divisional Court ordered the attendance of the parents of a developmentally challenged child plaintiff. I agree with the summary set out by Master Sproat.

[49] While certainly Ms. Van Dijk-Alac is neither a child nor as challenged as in Barnes, the plaintiffs’ medical professionals had the assistance of Mr. Alac at Ms. Van Dijk-Alac’s examinations. That input appears in the records to date. Mr. Alac’s memory and clarity of thought will likely assist the defence doctors as much as the plaintiffs’ doctors.

[50] Accordingly, Mr. Alac shall be available to the psychiatrist to provide information with respect to the assessment of Johanna Van Dilk-Alac that she is unable to provide.

iv. Psychiatric/Neuropsychiatrist assessment

[51] It is agreed that the psychiatric field and the neuropsychological field cover different components of medicine. Ms. Van Dijk-Alac has been examined in both areas of expertise. The plaintiffs have served reports in both areas.

[52] As set out above, Ms. Van Dijk-Alac will be examined by psychiatrist Dr. Bloom.

[53] While “matching reports” are not always necessary, the plaintiffs do not object to the possibility that a defence neuropsychiatric assessment may be necessary in the future “after we receive Dr. Bloom’s report.”

[54] In particular, Ms. Van Dijk-Alac submits that she “f ound previous neuropsychological testing tortuous and required 6 visits by the psychometrist working with Dr. Fulton. This was done at her home to make her more comfortable. She found the testing draining and humiliating because she was asked to do tasks that she was able to do before the accident and remind her of her deficits. The testing left her entirely drained and in her words it “brings on a brain crash”. She does not want to experience this again unless absolutely necessary.”

[55] In submissions, counsel for the plaintiffs did not object to the assessment by Dr. Freedman. There is no dispute as to Dr. Freedman’s qualifications. The plaintiffs’ submission is that the combination of both Dr. Bloom and Dr. Freedman is, or may be, unnecessary.

[56] I have reviewed the record put forward by Aviva to justify this examination. I am satisfied that the examination by Dr. Freedmen is warranted and legitimate. While Aviva has been slow in responding to this claim, this examination is not made with a view to delaying trial, causing prejudice to Ms. Van Dijk-Alac or simply corroborating an existing medical opinion.

[57] The plaintiffs submit that the examination by Dr. Freedman should take place after Dr. Bloom determines that it is necessary. That submission loses credence when I note that plaintiffs’ counsel had his psychiatrist and neuropsychiatrist carry out their investigations at the same time through the summer of 2019.

[58] While matching reports are not always necessary, the plaintiffs are relying on a neuropsychiatrist. Aviva should be given a fair opportunity to respond with expert evidence from the same specialty based on an assessment of the plaintiff. I am satisfied that ordering the examination by Dr. Freedman is just and necessary to enable Aviva to investigate and call reasonable responding evidence to that served by the plaintiffs.

[59] The parties both complain about delay and I agree with them. While not ignoring Ms. Van Dijk-Alac’s concerns, I do not find them sufficient to offset the need to move this matter forward rather than wait for Dr. Bloom’s report. Given the history of this action, I see no reason to think that counsel will agree on the next step without further motions and delay.

[60] On that basis, I order that Ms. Van Dijk-Alac shall attend for a complete neuropsychological examination with neuropsychologist Dr. Larry Freedman on dates to be agreed.

[61] Aviva also asks for an order that, at the discretion of the neuropsychologist in order to develop his opinion, the examination may be extended to take place across multiple days to allow for a fulsome and complete assessment and that the plaintiffs not take any action that will contaminate or prejudice the neuropsychological examination.

[62] As above, while Ms. Van Dijk-Alac must attend and participate in a neuropsychiatric examination, without evidence of a medical requirement in advance, I am not prepared to order that she attend a specific number of times. I make no order, one way or the other, as to the length of the examination.

[63] There is no evidence or submissions with respect to any concern about “contamination” of the examination; I make no order in that regard.

v. Insurance Contract

[64] Aviva’s counsel invites me to leave this issue to see if the plaintiffs will attend in accordance with my order. I have no reason to think that the plaintiffs will not comply with my orders. In that event, I accept Aviva’s invitation to leave this issue to another day.

[65] If there are further difficulties, I will remain seized of these issues for the next six months.

Costs

[66] It would appear to me that success has been divided and costs would not be requested, but there may be arguments or facts of which I am not aware. If costs cannot be agreed upon, the party requesting costs shall provide costs submissions within the next 15 days. The respondent shall provide a response within 15 days thereafter. No reply submission will be accepted unless I request it.

[67] Each submission shall be no more than three pages, not including any Bills of Costs or Offers to Settle. If I have not received any submissions within the time frames set out above, I will assume that the parties have resolved the issue and I make no order as to costs.

[68] Neither party need include the authorities upon which they rely so long as they are found in and the relevant paragraph references are included.

[69] Any costs submissions shall be forwarded to my office in Guelph by electronic transfer to GuelphOffice.SCJ@ontario.ca or by mail to Guelph Superior Courthouse, 74 Woolwich St., Guelph, N1H 3T9.

Justice G.D. Lemon Date: February 22, 2021