Court File and Parties

Court File No.: CV-17-000527 Date: 2021-03-02 Superior Court of Justice - Ontario

Re: Annette Brooks, Plaintiff And: Jessica Heath, Catherine Higgins and The Co-operators General Insurance Company, Defendants

Before: Justice J. Di Luca

Counsel: A. Meringolo, Counsel, for the Plaintiff J. Beleskey, Counsel, for the Defendant Co-operators General Insurance Company N. Mukherjee, Counsel, for Defendant Jessica Heath

Heard: February 23, 2021

Endorsement

[1] The plaintiff, Ms. Brooks, was involved in a car accident with the defendant, Ms. Heath. The defendant, Ms. Higgins, is alleged to be the owner of the car driven by Ms. Heath.

[2] The action seeks $950,000 in damages for personal injuries sustained in the accident.

[3] Co-operators General Insurance Company (“Co-operators”) brings a motion seeking an order compelling Ms. Brooks to attend a second independent medical examination, this time with a physiatrist, Dr. Raymond Zabieliauskas.

[4] For the reasons that follow, I am satisfied that the requested order should be granted.

Brief Background

[5] The accident occurred on October 28, 2016. The statement of claim was issued on April 4, 2017. The pleadings were completed on January 31, 2018. The matter was pre-tried on June 17, 2019. A second pre-trial was scheduled for September 21, 2020, but was cancelled.

[6] The matter was originally scheduled for the fall 2020 trial sittings in Barrie which were cancelled due to the COVID pandemic. A new trial date has not been scheduled.

[7] The plaintiff alleges injuries including headaches, pressure inside her head, speech difficulties, difficulty processing information, neck pain and cracking and right shoulder pain. The damages relate, inter alia, to pain and suffering, future care costs, housekeeping assistance and income loss.

[8] To date, the plaintiff has served six expert reports in the following disciplines; physiatry, neuropsychology, chiropractic and life care, occupational therapy, engineering, and neurology.

[9] The physiatry report by Dr. Berbrayer, dated December 4, 2018, opines that the plaintiff continues to suffer physical symptoms as a result of the accident. The future care costs report by Ms. Ghatas relies on the report by Dr. Berbrayer and concludes that the plaintiff will require significant future care costs.

[10] The plaintiff anticipates serving a seventh report from a psychologist. This report stems from an assessment that occurred in June 2020.

[11] Co-operators has already sent the plaintiff for one independent medical examination with Dr. Ranalli, a neurologist and neuro-ophthamologist. Dr. Ranalli’s report assesses the plaintiff’s visual and neurological complaints. It does not respond to the physiatry report of Dr. Berbrayer.

[12] In support of its position on this motion, the plaintiff is prepared to undertake not to rely on the report of Dr. Berbrayer in this litigation.

Analysis and Findings

[13] The parties agree on the legal framework for this motion. Section 105 of the Courts of Justice Act and Rule 33 of the Rules of Civil Procedure permit the court to order a party to attend for an initial and subsequent medical examination, as the case may be. The nature of such an order is discretionary and its goal relates to ensuring the fair determination of disputes through an “even playing field”, see Bellamy v. Johnson (1992), 8 O.R. (3d) 591 (Ont. C.A.).

[14] In Bonello v. Taylor, 2010 ONSC 5723 at para. 16, Brown J. (as he then was), set out the following summary of principles that are to guide the exercise of discretion in ordering subsequent independent medical examinations [citations omitted]:

i. The party seeking the order for a further examination must demonstrate that the assessment is warranted and legitimate, and not made with a view to delaying trial, causing prejudice to the other party, or simply corroborating an existing medical opinion; ii. A request may be legitimate where there is evidence that (i) the party’s condition has changed or deteriorated since the date of a previous examination, (ii) a more current assessment of the plaintiff’s condition is required for trial, (iii) the plaintiff served specialist reports from new assessors after the defendants had conducted their medical assessments, or (iv) some of the party’s injuries fall outside the expertise of the first examining health practitioner; iii. Some cases take the view that the need for a “matching report” – i.e. a report from a defence expert witness in the same specialty as a plaintiff’s expert – is not, in and of itself, a sufficient reason to order a further defence medical. In the circumstances of the present case I need not wade deeply into that question. That said, I would venture that trial fairness should operate as the guiding principle in this area, so if the plaintiff has decided that expert evidence from one specialty based on an examination of the plaintiff is relevant to the adjudication of her claim at trial, courts should be loathe to deny the defence a fair opportunity to respond with expert evidence from the same specialty based on an assessment of the plaintiff. Ordering further examinations may be just where they are necessary to enable the defendant fairly to investigate and call reasonable responding evidence at trial; iv. Where the request is for the examination of the plaintiff by a person who is not a health practitioner, such as a rehabilitation expert, the defendant must demonstrate that the proposed examination is necessary as a diagnostic aid to the health practitioner who is conducting the defence medical examination; v. A request for a second examination must be supported by sufficient evidence to persuade a court of the need for the further examination. What constitutes sufficient evidence will vary from case to case. Some cases have suggested that need must be established by filing medical evidence, such as an affidavit from the first examining physician recommending a further examination by a health practitioner competent in another specialty. In other instances, an affidavit from a lawyer or law clerk attaching medical reports has been utilized by the court. But, at the end of the day, determining whether the nature of the evidence filed is sufficient remains essentially an exercise of judicial discretion; vi. While fairness, or “creating a level playing field”, may constitute a legitimate reason for ordering a second examination, someone with knowledge of the evidence in the case must provide evidence of unfairness for the court to consider; and, vii. A court should consider whether the request for a further examination would impose an undue burden on the plaintiff in light of the number of examinations already conducted on her by the defence.

[15] The plaintiff’s position is that in view of its offer to not rely on the report of Dr. Berbrayer, the defence position on the need to obtain a “matching” physiatry report evaporates. The plaintiff further argues that in the absence of Dr. Berbrayer’s report, the defence request is either duplicative of existing medical evidence or intended to advance a new defence theory, see Labadie v. Barry, 2012 ONSC 5306. Given that the matter is ready to be listed for trial, the plaintiff argues that the request for a further independent medical examination is prejudicial and will unnecessarily add to the costs of the litigation, see Stonehouse v. The Corp. of the Town of Lakeshore, 2017 ONSC 3617.

[16] I agree with the moving party that as a matter of “evening the playing field”, the plaintiff should be required to submit to an independent physiatry examination. The nature and extent of the plaintiff’s injuries are central to the trial. Whether the plaintiff suffers ongoing physical symptoms related to the accident will need to be determined in order to assess the extent of damages. While I consider the potential mitigating effect of the plaintiff’s offer to not rely on its physiatry report, I find that it is not sufficient to foreclose the order sought. First, the plaintiff’s physiatry report is relied upon in the report of Ms. Ghatas, the occupational therapist, who in turn opines on the plaintiff’s alleged future care needs as a result of the injuries suffered. As such, the offer to not rely on the physiatry report does not solve the problem. In any event, I do not view the tactic of offering to withdraw an expert report as invariably shutting down a request based on “matching.” There is no issue that the opinions of the various experts called in personal injury cases can, at times, overlap and/or work in concert. On the material before me, I am not satisfied that the mere offer to not rely on a physiatry report should disentitle the defendant from obtaining the order sought. Indeed, implicit in this position is an acknowledgement that the defence would otherwise be entitled to obtain the examination sought.

[17] In terms of the stage of the litigation, I agree with the plaintiff that the proposed medical examination is coming late in the day. While I agree that it may stem from a change in lead counsel as the plaintiff suggests, I do not see that as problematic in this case. On the material before me, I view the request as a legitimate effort to assess and respond to the live issues at trial, particularly the nature and degree of injuries sustained by the plaintiff. I accept that to some degree, it appears that current counsel has re-assessed how it is approaching this case. However, I am satisfied that this is not an instance where new counsel is, late in the day, seeking to divert the process by introducing a new defence theory into the equation. This is also not an instance where the proposed assessment will produce evidence that is duplicative of already existing evidence. The first independent medical assessment was a neurological and neuro-ophthalmological report aimed assessing a specific aspect of the plaintiff’s alleged injuries. The proposed medical assessment does not directly or indirectly duplicate this assessment.

[18] Moreover, I do not view this request as an attempt to unfairly derail the trial process. In view of the COVID pandemic, this case is not realistically going to be heard before a jury any time soon. Even if the jury notice is struck, it will take some time before the case is heard before a judge alone. The plaintiff has yet to produce a psychiatric report based on an assessment that has already been completed. It appears artificial for the plaintiff to complain about the timing of the defence request when the plaintiff is awaiting completion of its seventh expert report. Lastly, I am satisfied that the proposed examination can be completed in short order. Indeed, during argument, counsel suggested that dates for the assessment are available in early March of this year.

[19] When I consider the principles that guide my exercise of discretion, I am satisfied that it is an appropriate case in which to make the order sought. I am satisfied that the fair determination of this matter will be served by an order that the plaintiff attend for an independent medical examination as proposed by Co-operators. I am not satisfied that there is any realistic prospect of prejudice to the plaintiff.

[20] In order to address the plaintiff’s concerns about the possibility of delay, I am prepared to order that the assessment be completed no later than March 31, 2021.

[21] I urge the parties to agree on the issue of costs. If they are unable to do so, counsel for the moving party shall file submissions no longer than 3 pages in length within 14 days of the release of this endorsement. Counsel for the plaintiff shall have 21 days to provide its submissions, again no longer than 3 pages in length. The submissions can be emailed to my judicial assistant at Diane.Massey@ontario.ca.

[22] The motion is allowed.

Justice J. Di Luca Date: March 2, 2021