Court File and Parties

COURT FILE NO.: CV-3066/14 DATE: 20210322

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Lindsy Coll, Plaintiff AND Firas Alameh, Cara Robertson and Wawanesa Mutual Insurance Company, Defendants

BEFORE: Justice S. Nicholson

COUNSEL: C. Martin, for the Plaintiff, Responding Party W. Woodward, for the Defendant Cara Robertson, Moving Party

HEARD: March 8, 2021

REASONS ON MOTION

Introduction:

[1] The defendant, Cara Robertson, brings this motion to compel the plaintiff, Lindsy Coll, to attend defence medical examinations pursuant to rule 33 of the Rules of Civil Procedure and s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, as amended (“CJA”).

[2] This action arises out of a motor vehicle accident that occurred on May 29, 2013 in the City of London. The plaintiff had also been involved in a separate motor vehicle accident on May 3, 2013. She commenced actions in respect of each of these accidents. The actions have been ordered to be tried together or one after the other.

[3] This motion was initiated in December of 2019. In an endorsement dated January 20, 2020, Grace J. vacated pre-trial and trial dates that had been scheduled for 2020, ordered the plaintiff to sign consent forms and complete questionnaires necessary for the assessments and set the matter to the February 21, 2020 civil assignment court list. The remaining issues were not addressed as the parties had not complied with Rule 53.03(2.2) whereby it is required that parties agree to a schedule for the timely delivery of expert reports within 60 days of setting an action down for trial.

[4] The plaintiff has agreed to attend a physiatry examination with Dr. Berbreyer and that assessment has been scheduled for later this April 2021. The defendants seek additional examinations with a neuropsychologist, Dr. Dowhaniuk, and a psychiatrist, Dr. Williamson. Those examinations are also scheduled for April 2021, depending upon the outcome of this motion. The plaintiff signified her willingness to attend one of those examinations, but not both.

[5] If the plaintiff is required to attend the neuropsychological examination, the parties, in conjunction with CIRA Health Solutions, the company through which the assessments have been scheduled, have agreed upon a draft order by which the raw data from the examination will be released to counsel. The plaintiff only seeks to have the time frame for production of the data reduced from 60 days to 30 days.

[6] As noted, Grace J. vacated the 2020 pre-trial and trial dates. In all likelihood, this matter would not have proceeded to trial in any event due to Covid-19. A pre-trial is currently scheduled for October 19, 2021 and a new trial date is set for January 10, 2022.

Legal Framework:

[7] The relevant subsections of 105 of the CJA provide as follows:

105(2) Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.

(4) The court may, on motion, order further physical or mental examinations.

[8] Rule 33 governs medical examinations of parties. The relevant provisions read as follows:

33.02 (1) An order under section 105 of the Courts of Justice Act may specify the time, place and purpose of the examination and shall name the health practitioner or practitioners by whom it is to be conducted.

(2) The court may order a second examination or further examinations on such terms respecting costs and other matters as are just.

33.03 The court may on motion determine any dispute relating to the scope of an examination.

[9] The purpose of defence medical examinations is to put the parties on equal footing. The defendant is permitted to meet the case advanced by the plaintiff and to respond to the allegations made by the plaintiff (see: Bellamy v. Johnson (1992), 1992 CanLII 7491 (ON CA), 8 O.R. (3d) 591 (Ont.C.A.)).

[10] However, while the plaintiff may arrange for an unlimited number of examinations for the purpose of developing the evidence to prove her damages at trial, the defence is not in the same position. The defence is prima facie entitled to one examination and may have further examinations either on consent of the plaintiff or by court order (see: Chapell v. Marshall Estate, 2001 CarswellOnt 2731, [2001] O.J. No. 3009 (Ont.Sup.Ct)).

[11] Ordering a second or further medical examination is a discretionary matter that is not granted as a matter of course, and on motion, the defendant must present sufficient evidence to persuade a court as to the necessity for a further physical examination (see: Fromm v. Rajani, [2009] O.J. No. 3671, 2009 CarswellOnt 5189 (Ont. Sup. Ct. at para. 9)).

[12] There are many decisions denying further examinations where the ability to maintain scheduled trial dates is compromised by the late request from a defendant. The timeliness of the within motion is not an issue, given the dates that have been arranged and the timing of the currently scheduled pre-trial (7 months from now) and trial (10 months from now).

[13] On reviewing the cases, it is clear the overriding goal is trial fairness. As noted by D.M. Brown J. (as he was then) in Bonello v. Taylor, 2010 ONSC 5723, [2010] O.J. No. 4432 (ONSC) at para. 15:

…The right to respond to a plaintiff’s expert report is a substantive one, involving principles of trial fairness, as the Court of Appeal made clear in Rysyk v. Booth Fisheries Canadian Co:

It is plain that, if the defence proceeds to trial without the advantage of the examinations sought, it could be seriously prejudiced. Fairness in the conduct of this litigation seems to demand the defendants have the right now contended for, as, otherwise, the opinion of the plaintiff’s expert in psychiatry and the plaintiff’s own evidence would not be subjected to what is probably the best test and to a very great extent go unchallenged.

[14] Brown J. then noted seven principles for the court to consider when determining whether to exercise its discretion to permit a second or further examination. I note his comments in items (iii) and (v) as follows:

…(iii) Some cases take the view that the need for a “matching report”—ie. 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.

…(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 the 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.

Relevant Facts:

[15] I begin with the amended statement of claim in this action. The plaintiff seeks damages in the amount of $2.3 million plus interest and costs. The injuries allegedly suffered by the plaintiff include a traumatic brain injury, a concussion, headaches, dizziness, concentration difficulties, fatigue, anxiety, memory difficulties and various physical injuries to the neck, shoulder and back.

[16] On her examination for discovery, conducted on May 31, 2017, the plaintiff reported ongoing difficulties with concentration and focus, visual issues with balance problems. She reported anxiety, including vehicular anxiety. She reported that she had been diagnosed with post-traumatic stress disorder and depression. She feels very sad.

[17] The moving party has filed as exhibits expert reports that the plaintiff will rely upon to prove her damages at trial. These include a February 1, 2016 chronic pain assessment report by Dr. Gofeld, and two Occupational In-Home Assessments by OT Ms. Schembri. I have reviewed those reports.

[18] It appears that Dr. Gofeld is an anesthesiologist and an active consultant in chronic pain at St. Michael’s and Women’s College Hospitals. He has an active practice in chronic pain management. On review of Dr. Gofeld’s review of the clinical notes and records, I simply note that there are reported symptoms shortly after the May 29, 2013 which give rise to a possible diagnosis of concussion. The plaintiff reported striking her head with a bruise and swelling on her forehead. It appears that treating doctors refer to post-concussion symptoms frequently.

[19] Importantly, Dr. Gofeld describes that anxiety has continued to be an ongoing severe problem. Psychological intervention helped with her driving anxiety and fear. Nevertheless, anxiety consistently affects her life. She also has panic attacks.

[20] Especially noteworthy in the context of this motion, Dr. Gofeld states:

“Given he (sic) reported head impact at the time of the second accident, and some of the client’s reported symptoms of dizziness and impaired memory that can be associated with post-concussive symptoms, there is a possibility of traumatic brain injury that requires further Neuropsychological assessment.”

[21] Dr. Gofeld then provides a lengthy opinion about non-head injury accidents possibly resulting in minor traumatic brain injury or persistent post-concussive symptoms.

[22] It is important for me to note that I do not have a CV of Dr. Gofeld and am unfamiliar with him. It is impossible for me to say on the evidence before me whether he is qualified to provide an opinion with respect to concussions or post-concussion symptoms. During oral argument, counsel for the plaintiff confirmed that their current intention was to present this evidence through Dr. Gofeld. Whether he is permitted to give this opinion evidence is not for me to determine on this motion.

[23] Similarly, Dr. Gofeld indicates that through self-assessment, questionnaires and his general impression, the plaintiff’s symptoms were suggestive for severe anxiety. He states “a formal psychiatric assessment is required to more specifically delineate any mental health diagnosis”. Later in the report, he states “The client’s history and PHQ-4 results suggest a strong degree of psychological impairment, which should be assessed by a Psychologist or Psychiatrist.” Again, whether Dr. Gofeld would be permitted to give opinion evidence regarding psychological impairment is a decision for the trial judge.

[24] The Occupational Therapy In-Home Assessment reports are dated April 25, 2019 and September 25, 2020. Parenthetically, Ms. Schembri is not a “Health Practitioner” as that term is defined in s. 105 of the CJA. The latter report provides a more recent understanding of the plaintiff’s complaints. The plaintiff continued to report headaches occurring several times per week. She completed the Rivermead Post-concussion Symptoms Questionnaire, scoring in the moderate range. The plaintiff continued to report ongoing anxiety and stress which have led her to feeling very over-whelmed and having panic attacks. She reported cognitive symptoms as well.

[25] From the index of the records available to Ms. Schembri, it is apparent that the plaintiff had psychological treatment from Dr. Coates. According to the OT report, she was continuing to see a psychologist, Dr. Ross, twice per month. Ms. Schembri recommends ongoing psychological treatment. She also recommends 1 hour of daily attendant care due to ongoing psycho-emotional symptoms.

[26] Although the material is not explicit, from the oral arguments it appears that the plaintiff has not retained a psychiatric or psychological expert. Furthermore, other than possibly Dr. Gofeld, and any treating physicians or therapists, there do not appear to be any experts retained by the plaintiff addressing the concussion and/or possible post-concussion syndrome. In their correspondence to defence counsel, plaintiff’s counsel advises that they are considering retaining and serving reports of a vocational expert, accountant and a future care cost report.

Analysis:

[27] I presume that the plaintiff has not arranged any further examinations with any other experts other than set out above and has served the expert reports that she intends to rely upon at trial. If there is anything further in hand, or planned, it ought to have been disclosed on this motion. That is not to say that the plaintiff cannot respond to any reports generated by the defendant.

[28] Accordingly, it appears that the plaintiff intends to establish her damages primarily through her own testimony, Dr. Gofeld and Ms. Schembri, as well as through “participant experts” as defined in Westerhof v. Gee Estate, 2015 ONCA 206. In Westerhof, the Court of Appeal held that participant witnesses and non-party experts may give opinion evidence, within certain parameters, without complying with rule 53.03. The participant experts that might reasonably be anticipated to testify at this trial would include the family physician, the treating psychologists, Dr. Coates and/or Dr. Ross.

[29] Thus, in my opinion, in determining how to maintain trial fairness I accept that the defendant should anticipate having to respond to evidence in respect of the plaintiff’s physical, emotional and cognitive impairments. I agree with counsel for the moving party that being forced to choose between a neuropsychological or a psychiatric assessment leaves the other area of injury uncontested. That can hardly be described as providing a level playing field.

[30] A number of cases have rightly noted the distinction between a psychiatrist and a psychologist. Thus, many courts refused to permit a defendant to have a psychiatric examination where the plaintiff’s experts, participant and retained, were psychologists.

[31] Accordingly, the plaintiff relies upon Karbasion v. Batorowicz, 2015 ONSC 6502, 2015 CarswellOnt 15909, in which Rady J. noted the distinction between psychiatrists and psychologists and refused to order that the plaintiff attend a psychiatric assessment. In doing so, she relied upon Pinelli (Litigation Guardian of) v. Chmura, 2006 CanLII 34277. I note in that case, the defendant had already had a psychological examination and the court refused a further psychiatric examination. Justice Rady also cited concerns regarding delay and endless expense if a psychiatric assessment was ordered, as the plaintiff would feel compelled to respond. Justice Rady was well within her discretion to come to the conclusion she reached.

[32] In Ismail v. Ismail, 2018 ONSC 6489, 2018 CarswellOnt 18151, Grace J. ordered that the plaintiff attend a defence psychiatric examination even though her expert was a psychologist. Unlike Karbasion, the plaintiff in Ismail was prescribed medication for her depression. Justice Grace distinguished the cases on that basis. However, he also noted the case of Abu-Yusuf v. Foster, 2006 CarswellOnt 6240, 36 C.P.C. (6th) 150 (Ont.Sup.Ct.).

[33] In Abu-Yusuf, Granger J. stated at para. 18 as follows:

A plaintiff has a right to select the physicians that he will rely on just as the defendants have a right to select the physicians that they wish to have examine the plaintiff. A court should not interfere with such a selection so long as the physician…selected by the defendants is a qualified medical practitioner with expertise in the field relating to the injuries alleged by the plaintiff…A court should never allow a medical examination to take place when its sole purpose is really a fishing expedition.

[34] Justice Granger concluded that the defence proposal that a psychiatrist respond to a report prepared by a psychologist was a “perfectly legitimate request”. Justice Grace explicitly agreed with that statement and applied it in Ismail. Further, both judges agreed that the triers of fact could weigh the evidence of a psychologist against a psychiatrist.

[35] Plaintiff’s counsel points out that her client is not taking medication. Although Grace J. did reference Ismail’s use of medication in distinguishing that case from other cases, I do not accept that it was the determining factor in that case. In my opinion, a psychiatrist is an appropriate choice of expert to respond to a claim involving anxiety, post-traumatic stress and depressive symptoms, regardless of whether the plaintiff is using medication for emotional symptoms.

[36] I note that Dr. Gofeld suggested a psychiatric assessment in his report. I also note that the plaintiff had expressly agreed to attend either a neuropsychological or a psychiatric examination, but not both. Plaintiff’s counsel did not raise any concern about the distinction between a psychologist and a psychiatrist in her correspondence to defence counsel. Accordingly, it cannot be said that a psychiatrist would be unqualified to render an opinion in this case.

[37] In their responding affidavit, it is noted that the plaintiff will be required to respond to both reports, increasing the costs and possibly delaying the trial. This was an important factor in Karbasion. However, the apparent trial strategy of the plaintiff is to attempt to prove their case through participant experts, as well as Dr. Gofeld. The plaintiff chose not to retain experts in these areas, but evidently still intends to pursue all three areas of damages. In my view, fairness dictates that the defence be afforded the ability to respond to the plaintiff’s allegations. It is difficult to accept the plaintiff’s complaints given that they opted to present their case in this manner.

[38] Plaintiff’s counsel also points out a defect with the moving party’s evidence. While the affidavit states, at paragraph 23, that “I verily believe that the Defendant will be prejudiced if forced to proceed to trial without a neuropsychological opinion regarding the Plaintiff’s alleged concussion and cognitive complaints”, it does not make any similar statement regarding the proposed psychiatric examination.

[39] Respectfully, the statement in paragraph 23 is not helpful evidence in any event and need not be repeated in respect of a psychiatric assessment. I do not require counsel to make a conclusory statement regarding prejudice to see that if a psychiatric assessment is not permitted the plaintiff’s evidence regarding damages relating to her mental/emotional impairment would go unanswered. On its face it is prejudicial.

[40] The amended statement of claim, the references to the plaintiff’s evidence during her examination for discovery about her symptoms as well as the reports of Dr. Gofeld and Ms. Schembri were adequate for me to conclude that the plaintiff intends to adduce evidence at trial concerning damages flowing from physical, emotional/mental injuries as well as a concussion. In my view, fairness dictates that the defendant be permitted to address all three elements of the claim.

Conclusion:

[41] For the foregoing reasons, I order that the plaintiff shall attend, at the reasonable expense of the defendant, the examinations scheduled with the physiatrist, psychiatrist and neuropsychologist, as arranged by the defendant. To be clear, the neuropsychologist, Dr. Dowhaniuk, is not to perform a psychological assessment in addition to the neuropsychological assessment.

[42] I have reviewed the draft order provided in respect of the raw data from the neuropsychological assessment. With the exception of changing the time for delivery of the data in paragraph 4 from 60 days to 30 days, an order shall issue in that form.

[43] Plaintiff’s counsel asked that if I were to order that the plaintiff attend any of the assessments, that I also order a quick turnaround time for delivering the report. I decline to do so. The assessors ought to be permitted to complete their reports in the ordinary course. Having said that, defence counsel should remind them that the reports are supposed to be served well in advance of the pre-trial scheduled for October 2021.

[44] There were costs submissions in the material provided to me, which I have purposefully not reviewed. If the parties cannot agree on the costs of this motion, they can seek my ruling on costs. The defendant shall have until April 9, 2021 to provide new submissions or to advise me that they are relying upon the submissions previously filed. The plaintiff shall have until April 19, 2021 to file written submissions or advise me that they are relying upon the submissions previously filed. Some guidance should be provided by counsel with respect to how costs were dealt with by Justice Grace.

Justice Spencer Nicholson

Date: March 22, 2021