RELEASED: 2021/06/14
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sara Jajjo and Nasrin Danno v. Harmeet Singh
BEFORE: Master Graham HEARD: June 10, 2021
COUNSEL: Alon Rooz for the plaintiffs
Meredith Harper for the defendant (moving party)
REASONS FOR DECISION
(Re: Defendant’s motion for costs thrown away
of aborted defence medical examinations)
1The plaintiffs claim damages arising from personal injuries sustained in a motor vehicle accident that occurred on August 27, 2016. They both allege musculo-skeletal injuries.
2The defendant arranged for both plaintiffs to undergo defence medical examinations on January 13, 2021 with Dr. Erin Boynton, an orthopaedic surgeon. Plaintiffs’ counsel confirmed their attendance in correspondence of November 24, 2020 and requested that an Arabic interpreter be present for the plaintiff Danno.
3When the plaintiffs attended at Dr. Boynton’s office at the scheduled time on January 13, 2021, they were asked to sign medical consent forms. As they had been advised by their counsel not to sign any documents, they attempted to speak with their counsel to seek his advice but were not able to contact him.
4According to the evidence in the defendant’s affidavit, Dr. Boynton’s office informed defendant’s counsel at the scheduled time for the examinations that “the plaintiffs refused to give medical consent for the examination as their counsel advised not to sign anything prior to the examination. The plaintiffs attempted to get in touch with their legal counsel with no success. At that juncture, the plaintiffs left the office of Dr. Boynton unilaterally.” (Para. 12 of affidavit of Jennifer Moore)
5According to the responding affidavit evidence of the plaintiff Jajjo, Dr. Boynton would not conduct the examinations without the plaintiffs signing the consent forms, informed the plaintiffs that the examinations were cancelled, and asked the plaintiffs to leave, which they did.
6Dr. Boynton then sent defendant’s counsel invoices for cancellation fees for both plaintiffs’ examinations in the amount of $1,130.00 each for a total of $2,260.00, which the defendant paid. The defendant also paid the interpreter’s account of $166.62.
7The defendant now brings this motion to recover the total of $2,426.62 in costs thrown away arising from the aborted defence medical examinations. The issue is whether the plaintiffs or defendant should bear these costs. For these reasons, the motion is dismissed.
Submissions of the defendant
8In addition to the evidence summarized in paragraph [4] above, the defendant also relies on an email from an assistant in Dr. Boynton’s office from January 13, 2021, stating that the plaintiffs “both refuse to give consent, they tried to get a hold of their legal with no luck. Apparently he told them not to sign anything. So they left.”
9The defendant submits that the plaintiffs should not have been surprised that they were asked to sign a consent form at Dr. Boynton’s office, based on the plaintiff Jajjo’s own evidence in paragraph 16 of her responding affidavit:
“16 I did previously sign consent forms at medical assessments that were arranged for me as part of my Accident Benefits (“AB”) application. My mother [the plaintiff Danno] advised me that she did too.”
10In their own affidavit in support of the motion, the defendant relies on the plaintiff’s examination by psychologist Fahimeh Aghamohsen, who prepared a report dated May 7, 2017 for the accident benefits insurer, in which she stated: “The purpose of the assessment was to determine if psychological treatment would be reasonable and necessary, and if so, to have the required treatment plan prepared accordingly.”
11On January 21, 2021, subsequent to the aborted examinations with Dr. Boynton on January 13, 2021, a law clerk at the firm representing the defendant wrote by email to Ms. Aghamohsen (although she is described as Dr. Aghamohsen in the materials, she is not an MD or a PhD), requesting that she advise of her fees for a medical-legal assessment and report and “provide me with a copy of any consent forms you require plaintiff to sign in advance of same.” Ms. Aghamohsen’s response of that date included the following:
“Yes we do Med-legal assessments for MVA clients. Our fee starts at $2,500 and can be more depending on the volume of documents we are asked to review and questions asked to answer by the legal in the report. The consent forms are normally consent to be able to forward our reports to the legal and any other consents that legal may want us to have the client sign at the time of the assessment. We required [sic] all documents to be reviewed prior to booking the client. . . .”
12The defendant submits that Ms. Aghamohsen’s response confirms that the plaintiffs would have had to sign consent forms for her assessments so they should have known that signing consent forms was a standard part of the assessment process.
13The defendant further submits that Dr. Boynton’s Consent form is simple and straightforward and there was no reason that the plaintiffs should have hesitated to sign it. This is the entire content of the form:
“I (Client Name)_____
understand that I have been referred to Dr. Erin Boynton for the purpose of undertaking an independent Orthopaedic assessment.
I hereby authorize Dr. Boynton, to release the report to the referring agency and any sources specified by them. This authorization includes allowing both written and verbal communication with the referring agency, and may include communication with my treating professional relating to my assessment.
I understand that Dr. Boynton will be collecting personal health information for the purpose of completing an assessment and will be providing a report to the referring agency which may include personal health information related to my assessment, x-ray reports, hospital records, treatment records, medical records, progress notes and/or diagnostic tests.
(Signature of Client) (Witness) (Date) ”
14The defendant also submits that the fact that Dr. Boynton would be required to sign and submit with her reports an Acknowledgment of Expert’s Duty (form 53), should address the issue of her impartiality such that the plaintiffs’ concerns that their defence medical examinations were part of an adversarial process are unfounded.
15Finally, the defendant argues that plaintiffs’ counsel should have told the plaintiffs before the date of their defence medical examinations that they would be required to sign consent forms so that they would have been prepared to do so on arrival at Dr. Boynton’s office.
Submissions of the plaintiffs
16The plaintiffs rely on Ms. Jajjo’s affidavit evidence, summarized in paragraph [5] above and set out verbatim as follows:
“I understood that the defence medical assessments were something the Defendant is entitled to require of us and that the doctor we are asked to see is retained by the Defendant.” (Jajjo affidavit para. 3)
“The person that we spoke to at Dr. Boynton’s office, whose name I do not know, required that Nasrin [Danno] and I sign what I understood were consent forms. We were told that we must sign the forms before the medical assessment can commence.” (para. 6)
“I advised Dr. Boynton’s office staff that we will not sign the forms without our lawyer’s input and advice. We were not previously advised by anyone that we would be required to execute authorization form for the Defendant’s doctor.” (para. 8)
“After multiple unsuccessful attempts to reach Mr. Rooz, we were advised by Dr. Boynton’s office that we must sign the consent forms before starting the defence medical examinations.” (para.10)
“Dr. Boynton’s office was adamant that we sign the consent form despite receiving no legal advice from our lawyer about the legal forms they presented us with.” (para. 11)
“I advised Dr. Boynton and the office staff that neither I nor my mother would sign the forms without our lawyer’s input and advice.” (para. 12)
“In response, Dr. Boynton’s office advised that the defence medical examinations are cancelled as we did not sign the consent form.” (para. 13)
“Dr. Boynton’s office asked us to leave the premises.” (para. 14)
17Plaintiffs’ counsel submits that the plaintiffs have provided a reasonable explanation for their refusal to sign the consents presented to them at Dr. Boynton’s office, as set out in Ms. Jajjo’s affidavit (para 17):
“17 The assessment at Dr. Boynton’s office was the first ever defence medical we attended and we were both concerned as it was all done for the benefit of the Defendant, unlike the AB assessments. We did not want to sign something without our lawyer. We believed we had a right to be represented and did not want to sign anything without our lawyer’s input.” [emphasis added]
18Plaintiff’s counsel submits that the evidence of Ms. Jajjo, that the plaintiffs were told to leave Dr. Boynton’s office, is from her first hand knowledge of what transpired at Dr. Boynton’s office and should be accepted over that of the law clerk Ms. Moore who relies on what she was told by Dr. Boynton’s staff. A further point is that Ms. Jajjo’s evidence was not challenged by cross-examination.
19The defendant submits that the plaintiffs were familiar with the practice of signing consent forms based on their experience with the psychologist Ms. Aghamohsen. Plaintiff’s counsel submits that the involvement of Dr. Boynton was in the context of the adversarial process of litigation, unlike the circumstances of Ms. Aghmohsen’s assessments, which were for the plaintiffs’ first party insurer to determine whether they needed any psychological treatment.
20With respect to the relative brevity of Dr. Boynton’s consent form, plaintiff’s counsel submits that the plaintiffs were not aware that they would be asked to sign anything and they were justified in refusing to sign unfamiliar documents in the context of a step in an adversarial process.
21Plaintiff’s counsel further submits that the plaintiffs were not informed that they would be required to sign a consent form when the defence medical examinations were arranged or at any time before they attended at Dr. Boynton’s office. If the consent forms that Dr. Boynton required were provided for plaintiffs’ counsel’s review before the date of the appointment, the issue could have been avoided.
22Plaintiff’s counsel also submits that Dr. Boynton could have sought the plaintiffs’ oral consent. I do not accept that this was a realistic option because the point of the signed consent is that Dr. Boynton would have a written record of it.
Statute and Case Law
23The relevant Courts of Justice Act provisions with respect to defence medical examinations are s. 105 (2) and (5):
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.
(5) Where an order is made under this section, the party examined shall answer the questions of the examining health practitioner relevant to the examination and the answers given are admissible in evidence.
24Although s. 105(2) gives the court jurisdiction to order that a party attend a medical examination, the examination of a personal injury plaintiff by a health practitioner chosen by the defendant is routinely arranged on consent of the parties without the defendant having to obtain an order. The examinations of the plaintiffs in this case by Dr. Boynton were arranged on consent.
25Much of the legal argument from both sides centred on the decisions of Valin J. in Chapell v. Marshall Estate, [2001] O.J. No. 3009 and Tanguay v. Brouse, [2002] O.J. No. 4711 and the more recent decision of Grace J. in Coll v. Robertson, 2020 ONSC 383. All three decisions addressed the issue of whether a plaintiff about to undergo a defence medical examination is required to sign a consent. In Chapell, the court held that “the plaintiff is not required to sign any authorization, consent or agreement presented” by the defence medical examiner. In Tanguay, the court came to the same conclusion both with respect to a consent and a document titled “Background Information”.
26Grace J. in Coll considered whether the plaintiff should be required to sign consents for the defence psychologist, psychiatrist and physiatrist, as well as any questionnaire required by the psychologist and/or psychiatrist. With respect to completing the questionnaire, the court relied on the provision in s. 105(5) of the Courts of Justice Act stating that “the party examined shall answer the questions of the examining health practitioner relevant to the examination”, in concluding that “the plaintiff cannot simply refuse to complete any portion of a questionnaire provided by a health practitioner referred to in s. 105 of the Act.”
27With respect to the question of the plaintiff being required to sign a consent, Grace J. noted that the court “has the inherent jurisdiction to control the discovery process”, which includes defence medical examinations, and that plaintiff’s counsel acknowledged that this included jurisdiction to require the plaintiff to sign a consent in relation to an examination by a health care practitioner. In ordering that the plaintiff execute a consent if requested by a defence medical examiner, Grace J. commented: “[I]t is entirely appropriate to document the parameters of the relationship of persons involved in an “intrusive” examination – whether as examiner or patient. In fact, I would go further and say it is essential that same be reduced to writing” (Coll, para.31).
28Grace J.’s comments in paragraph 32 of Coll are also helpful:
32 On two occasions, Ms. Coll’s solicitors declined the request that M. Coll execute documents requested by the health practitioners proposed by the moving party. No explanation was given. There is nothing in the factual record before me that provides any reason for the plaintiff’s refusal to complete a questionnaire or execute a consent. Based on the material filed, the plaintiff places complete reliance on the decisions in Chapell or Tanguay. In my respectful view, those cases do not establish any legal principle that governs this part of the parties’ dispute.
Analysis and decision
29The plaintiffs, on attending at the defence physician’s office for their defence medical examinations, refused to sign consent forms of which they had no prior notice, and had no opportunity to consult their counsel prior to signing. As a result, the medical examinations did not proceed and the defendant had to pay Dr. Boynton’s cancellation fees and an interpreter’s account. I accept that Grace J.’s ruling in Coll, that the court may order that a plaintiff sign a consent prior to a defence medical examination, is the correct approach. However, the issue before me is not whether the plaintiffs can or should be ordered to sign a consent prior to defence medical examinations. Rather, the issue is whether the refusal of the plaintiffs Jajjo and Danno to sign the consents presented to them at Dr. Boyton’s office, without being able to review them with their counsel, should result in any costs consequences to them.
30The defendant relies on the fact that in May, 2017, the plaintiffs had signed consent forms for psychological assessments with Ms. Aghamohsen in relation to their accident benefits claims arising from the same motor vehicle accident giving rise to this tort action. However, the purpose of the assessment with Ms. Aghamohsen was to determine what if any psychological treatment the plaintiffs’ first party insurer should pay for, as opposed to the examinations with Dr. Boynton which were in the context of an adversarial claim for damages. Also, the plaintiffs’ assessments with Ms. Aghamohsen were conducted almost four years before their appointments with Dr. Boynton, and there is no evidence as to the form and content of the consent signed for Ms. Aghamohsen and whether it was in any respect similar to Dr. Boynton’s consent. The fact that the plaintiffs signed forms in relation to that assessment does not mean that they should have been expected to unquestioningly sign Dr. Boynton’s forms.
31The defendant submits that Dr. Boynton’s consent form was not complex, so the plaintiffs did not need to consult counsel before signing it. The form identifies the individual signing the form as a “client”, but the plaintiffs are only clients of the lawyer representing them in this action, and not of Dr. Boynton as the form suggests. In the second paragraph, the form authorizes Dr. Boynton to release the report to and communicate with “the referring agency” without identifying who or what “the referring agency” is. In the third paragraph, the form refers to Dr. Boynton “collecting personal health information for the purpose of completing an assessment” but it is unclear whether Dr. Boynton will be doing this on her own initiative or will simply be relying on information provided to her. Therefore, although not lengthy, Dr. Boynton’s consent form is not as straightforward as the defendant maintains, and it is not reasonable to suggest that the plaintiffs should have agreed to sign it without consulting their counsel.
32The defendant also submits that when submitting her reports, Dr. Boynton would be required to sign a “Form 53 – Acknowledgment of Expert’s Duty” in which she would acknowledge that it is her duty “to provide opinion evidence that is fair, objective and non-partisan”. This is certainly the case, because under rule 53.03(2.1) the defendant could not rely on Dr. Boynton’s report if the Acknowledgment were not provided with it. However, the plaintiffs, when attending Dr. Boynton’s office, would only know that they were there for medical assessments to be conducted on behalf of the defendant in their legal action. They could not be expected to be aware of the intricacies of rule 53.03 or the content of the Acknowledgment.
33Finally, the defendant argues that plaintiffs’ counsel should have been aware that the plaintiffs would be asked to sign consents before their defence medical examinations, and should have advised them accordingly before their attendance. This misplaces the onus with respect to who should address the requirement for the consents. It is the defendant arranging the defence medical examinations who requires the consents to be signed, and who should therefore make the consents available for review by the plaintiffs and their counsel before the date of the appointment. The defendant should not simply assume that the plaintiffs, on arriving at the defence medical appointment, will sign a document prepared by the opposing expert that they have never seen before.
34Plaintiff’s counsel submits that in this case, there has been no general refusal to sign a consent, but only a refusal to sign the consent presented to the plaintiffs without the opportunity to consult counsel. Counsel submits that because there was no order to pay cancellation fees made in Coll v. Robertson, supra, even though the plaintiff Coll’s lawyers refused to have her sign the consent requested, there should be no order to that effect in this case. Given that there is nothing in the Coll decision indicating that the defendants were seeking reimbursement of cancellation fees, or even that there were any cancellation fees incurred, this argument fails.
35A defence medical examination is part of the adversarial process of litigation. In Coll, supra, Grace J.’s acceptance of the plaintiff’s counsel’s characterization of the proposed assessments as “intrusive” was a recognition of this reality. To reiterate the plaintiff Jajjo’s evidence in paragraph 17 of her affidavit, the plaintiffs were unwilling to sign Dr. Boynton’s consents to the examinations because “we were both concerned as it was all done for the benefit of the Defendant” and “we believed we had a right to be represented and did not want to sign anything without our lawyer’s input”.
36I accept that the plaintiffs’ concerns about being asked to sign documents at the defence physician’s office immediately before their examinations were reasonable. This is not to say that there was anything sinister in Dr. Boynton’s request that the plaintiffs sign the forms, but rather that the plaintiffs should have been given the opportunity to seek the guidance of their lawyer before doing so. If the defence expert was going to require the plaintiffs to sign documents prior to conducting the defence medical examinations, it was incumbent on defendants’ counsel to give the plaintiffs an opportunity to review those documents with their counsel before signing them.
37For these reasons, I conclude that the plaintiffs acted reasonably in refusing to sign Dr. Boynton’s consent forms without the opportunity to consult counsel prior to doing so. The defendant’s motion for an order that the plaintiffs pay the cancellation costs of the defence medical examinations is therefore dismissed.
38In paragraph 17 of his factum, plaintiff’s counsel states that “The Plaintiffs remain willing and able to attend rescheduled medical examinations in this matter.” I asked plaintiffs’ counsel to confirm that the plaintiffs would attend defence medical examinations and sign the consent provided by Dr. Boynton, regardless of the outcome of this motion. Plaintiff’s counsel responded that the plaintiffs would attend, subject to agreeing to a form of consent, but then took exception to the wording in Dr. Boynton’s consent describing her examination as “an independent Orthopaedic assessment.”
39Defendant’s counsel is now concerned that plaintiff’s counsel’s possible objections to the form of consent will be an impediment to re-scheduling the defence medical examinations. My preliminary view, which is not likely to change, is that agreeing to an acceptable form of consent to be signed by the plaintiffs, as contemplated by Grace J.’s decision in Coll v. Robertson, supra, should not be an insurmountable problem. However, if the form of the consent becomes an obstacle, counsel may arrange a chambers appointment with me at which the issue will be resolved quickly and summarily and no doubt to someone’s dissatisfaction.
Costs
40Counsel have provided costs outlines and they made costs submissions at the conclusion of the hearing. Defendant’s counsel submitted that, in deciding whether costs should follow the event, the court should consider the fact that plaintiffs’ counsel would not agree to the form of Dr. Boynton’s consent. However, the only issue on the motion was responsibility for the costs of the aborted defence medical examinations, so the costs should be awarded to the plaintiffs, who successfully argued that issue, subject to considering when the costs should be paid.
41Plaintiffs’ counsel seeks partial indemnity costs of $6,165.00 based on a total of 24.8 hours of time. Defendant’s counsel’s costs outline sets out total partial indemnity costs of $5,153.98 based on a total of 30.9 hours, but obviously at lower hourly rates. Defendant’s counsel acknowledges that there was some duplication with respect to the time spent by two different junior associate lawyers, owing to a change in personnel at her firm.
42I raised the issue of the proportionality of costs of $5,000.00 to $6,000.00 for a motion in which less than $2,500.00 was in dispute but neither counsel suggested that the costs should not exceed the amount in issue on the substantive part of the motion. Based on the parties’ costs outlines, fair and reasonable costs of the motion are hereby fixed on a partial indemnity basis at $5,000.00 inclusive of all fees, disbursements and HST.
43With respect to the timing of the payment of costs, plaintiff’s counsel submitted that any award against the plaintiffs should not be payable forthwith but instead, after the conclusion of the trial. However, it is difficult to reconcile this submission with the plaintiffs’ expectation that any costs payable to them should be payable within the presumptive 30 days under rule 57.03(1)(a). Accordingly, the defendant shall pay to the plaintiffs the costs of the motion fixed at $5,000.00 payable in any event of the cause.
MASTER GRAHAM
June 14, 2021