COURT FILE NO.: 07-CV-341402PD1

MOTION HEARD: 2021-05-12

INTERIM ENDORSEMENT RELEASED: 2021-05-17

REASONS RELEASED: 2021-06-13

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

SHAUN EDWARDS Plaintiff

• and-

JOHN R. MCCARTHY, EDWARD BERGERON, STEVEN RASTIN and CHRIS CLIFFORD, carrying on business under the firm name and style as MCCARTHY, BERGERON, RASTIN, CLIFFORD LLP Defendants

BEFORE: MASTER M.P. McGRAW

COUNSEL: J. Small -for the Defendants E-mail: jpedro@rachlinlaw.com

R. Plate -for the Plaintiff E-mail: dswilson@davidswilsonlaw.com

REASONS RELEASED: June 13, 2021

Reasons for Endorsement

I. Introduction

[1] The Defendants brought a motion to compel the Plaintiff to attend orthopaedic and psychiatric assessments. By Interim Endorsement dated May 17, 2021, I ordered the Plaintiff to attend a virtual psychiatric assessment on May 25, 2021 and an in-person orthopaedic assessment on July 13, 2021 with these Reasons For Endorsement to follow.

II. Background

[2] The Plaintiff was involved in a motor vehicle accident on March 12, 2003. His accident benefits insurer (the “AB Insurer”) terminated his benefits in March 2005. He retained the Defendants on March 23, 2005 to represent him in his accident benefits claim against his AB Insurer (the “AB Claim”) and a tort claim against the other driver. The AB Insurer commenced arbitration proceedings on September 9, 2005. On September 7, 2005, the Plaintiff underwent lumbar surgery and was assessed by an occupational therapist on September 12, 2005 who identified ongoing pain and functional limitations.

[3] At the same time, the Defendant John R. McCarthy negotiated a settlement of the AB Claim which was finalized on October 4, 2005. The AB Insurer agreed to pay $33,000 and the Plaintiff executed a full and final release and settlement disclosure notice (the “Original Settlement”). The Plaintiff alleges that the Original Settlement was improvident and negotiated without his knowledge and consent. In October 2013, the Plaintiff and his AB Insurer agreed to rescind the Original Settlement so that the arbitration could continue. The AB Insurer subsequently made payments to the Plaintiff for, among other things, caregiver, non-earner, housekeeping, attendant care and various medical and rehabilitation benefits. The Plaintiff was successful in the arbitration and reached a settlement with his AB Insurer in August 2017 (the “Final Settlement”).

[4] The Plaintiff commenced this action by Statement of Claim issued on October 9, 2007 claiming $750,000 in damages for breach of contract and negligence. The Plaintiff alleges that the Defendants were negligent in handling his AB Claim and that the Original Settlement was unjust and an unreasonable assessment of his claims in light of the surgery and occupational therapist’s assessment. Paragraph 19 of the Statement of Claim states:

“Further, the plaintiff states and the fact is that his inability to pursue further claims for medical and rehabilitation benefits have resulted in the worsening of his medical condition. As a result of the injuries he sustained in the subject motor vehicle accident, he continued to incur considerable suffering and has continued to be unable to obtain the necessary treatment and therapy to which he is properly entitled. Accordingly, he sustained additional pain and suffering and loss of enjoyment of life which arose solely as a result of his inability to obtain necessary treatment as a result of his financial circumstances.”

[5] The Plaintiff has served medical legal reports from Dr. Pierre Kirwin, a physiatrist, dated May 23, 2010; May 10, 2015 and January 17, 2016 and Dr. Henry Rosenblat, a psychiatrist, dated April 5, 2010 and September 12, 2016. The Defendants have not conducted any medical assessments or delivered any expert medical reports.

[6] In preparing his first two reports, Dr. Kirwin interviewed and examined the Plaintiff in person. In his first report, Dr. Kirwin opined that there had been a substantial degeneration of the Plaintiff’s condition, decreased functional level and a substantial increase in his use of analgesic medication. In his second report, Dr. Kirwin concluded that the Plaintiff’s conditions were caused by the 2003 accident, his condition had worsened and that pre-existing lumbar and thoracic pain was aggravated by the accident. In his third report, Dr. Kirwin stated:

“Based on my assessments if Mr. Edwards had been able to access reasonable treatment….during the ten-year period following the accident, it is likely that his quality of life would have been substantially improved. With access to above noted reasonable treatment it is likely that his pain level would have been reduced…With access to above noted reasonable treatment, it is likely that his functioning would have been increased” (pp.1-2).

[7] Dr. Rosenblat also assessed the Plaintiff in person concluding in his first report as follows:

“Essentially, his diagnoses of alcohol dependency/abuse, major depressive episode and pain disorder associated with both psychological factors and a general medical condition have all been present since the index accident and have been caused by the accident…Even with treatment, improvement is still unlikely. Indeed, [it] is most likely that his psychiatric condition will deteriorate over time.” (p. 13)

[8] In the second report, Dr. Rosenblat concluded:

“It is reasonable to opine that the termination of all benefits by his motor vehicle insurer contributed to his overall psychiatric status. It is reasonable to expect that his psychiatric impairments would have substantially reduced but the specific extent is impossible to determine.” (p.2)

[9] Counsel appeared before D.A. Wilson J. at Trial Scheduling Court on October 21, 2020. They advise that no Endorsement is available from this attendance. Wilson J. scheduled a pre-trial conference for November 22, 2021 with trial to commence on January 10, 2022. The parties have agreed to exchange expert reports 60 days before the pre-trial. While there is some dispute over what happened at Trial Scheduling Court, the Defendants consented to or did not oppose the fixing of pre-trial and trial dates, the parties agree that Wilson J. did not grant leave and Defendants’ counsel indicated that they had requested the assessments, Plaintiff’s counsel advised that they would not consent and the possibility of this motion was raised. The Defendants brought this motion on January 18, 2021.

[10] On April 8, 2021, due to the ongoing COVID-19 pandemic and in particular concerns regarding increased cases and Intensive Care Unit capacity related to the spread of variants of concern, the Province of Ontario implemented a Stay-At-Home Order (Emergency Management and Civil Protection Act (Ontario), Ontario Regulation 265/21). The Stay-At-Home Order was set to expire on May 19, 2021, however, on May 13, 2021 it was extended to June 2, 2021.

[11] The parties first appeared before me on April 14, 2021. At that time, the Defendants were seeking an order compelling the Plaintiff to attend an in-person examination by Dr. Joel Finkelstein, an orthopaedic surgeon, on May 19, 2021 at 8:30 a.m. at Sunnybrook Health Sciences Centre in Toronto and an in-person examination by Dr. Patricia Rosebush, a psychiatrist, on May 26, 2021 at 10:00 a.m. at St. Joseph’s Healthcare in Hamilton. The Plaintiff’s position was, and continues to be, that a paper assessment of his existing medical records is sufficient. The Plaintiff further submitted that due to the heightened concerns with the pandemic, the distance he would be required to travel and other personal circumstances, the assessments should be conducted virtually, if ordered.

[12] My Endorsement dated April 14, 2021 reads as follows:

“This is a motion by the Defendants to compel the Plaintiff to attend orthopaedic and psychiatric assessments on or about May 18/19 and May 26/28, 2021. If, as is currently the case, the Defendants seek an order compelling the Plaintiff to attend in-person assessments on these dates, then more time is needed to consider the true state of the COVID-19 pandemic closer to these dates. More specifically, given the rapidly evolving situation with respect to the pandemic, I am unable to fully and properly consider the parties’ positions and submissions and all related considerations involved with the order sought.

Accordingly, in my view it is reasonable and appropriate to adjourn this motion to May 12, 2021 for 2 hours virtually before me. By then, more should be known for a proper consideration of all issues.

I shall remain seized of this motion and counsel may schedule a telephone case conference with me at any time to speak to alternate terms of an assessment, timing of the motion, obtain case management or speak to other issues or directions…”

[13] Counsel attempted to schedule a telephone case conference however it did not proceed. In their Amended Amended Notice of Motion dated April 30, 2021, the Defendants are still seeking an in-person orthopaedic assessment with Dr. Finkelstein. However, to address concerns related to COVID-19, Defendants’ counsel advised today that they are prepared to have the Plaintiff attend an in-person orthopaedic assessment conducted by Dr. Jeremie Larouche, a colleague of Dr. Finkelstein at Sunnybrook, on July 13, 2021 at 10:00 a.m. Further, in their Amended Amended Notice of Motion, the Defendants are now requesting an order compelling the Plaintiff to attend a virtual psychiatric assessment with Dr. Zohar Waisman on May 25, 2021 at 12:00 p.m.

III. The Law and Analysis

[14] For the reasons that follow, I conclude that leave should be granted for the Defendants to bring this motion and that the Plaintiff shall attend a virtual psychiatric assessment with Dr. Waisman on May 25, 2021 at 12:00 p.m. and an in-person orthopaedic assessment with Dr. Larouche on July 13, 2021 at 10;00 a.m.

[15] There is substantial agreement between the parties with respect to the applicable law on this motion.

[16] Section 105 of the Courts of Justice Act (Ontario) provides that the court may order a party to undergo an examination by one or more health practitioners where the physical or mental condition of a party to a proceeding is put in question.

[17] Rules 33.01 and 33.02 state:

33.01 A motion by an adverse party for an order under section 105 of the Courts of Justice Act for the physical or mental examination of a party whose physical or mental condition is in question in a proceeding shall be made on notice to every other party.

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.

[18] A defendant’s right to respond to a plaintiff’s expert report is a substantive right involving principles of trial fairness (Bonello v. Taylor, 2010 ONSC 5723 at para. 15). The Court of Appeal has recognized the importance of defence medical assessments:

“The "defence medical" provided for by s. 105 and rule 33 forms an integral part of the discovery process where the physical or mental condition of a party to the proceedings is in issue. Discovery in civil proceedings is said to be (per Morden A.C.J.O., "An Overview of the Rules of Civil Procedure" (1984), 5 Advocates Quarterly 257, at p. 280):

. . . the most effective procedural device for learning the case one has to meet and, as a result, is an important condition of increased and reasonable settlements and more effective and fairer trials.” (Bellamy v. Johnson, (1992) 1992 7491 (ON CA), 8 O.R. (3d) 591(C.A.) at para. 16)

[19] Rule 48.04(1) provides that any party who has set an action down for trial or who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court. Wilson J. did not grant leave, the Defendants consented to pre-trial and trial dates and the understanding at Trial Scheduling Court was that the Plaintiff would not consent to the medical assessments and that the Defendants would be required to bring this motion. Therefore, I am proceeding on the basis that the Defendants require leave to bring this motion.

[20] The purpose of Rule 48.04 is to promote certainty, minimize the potential for adjournment requests and ensure that matters are not set down for trial until they are ready (Roy v. Primmum Insurance Company, 2019 ONSC 6361 at paras. 12-14; BNL Entertainment Inc. v. Ricketts, 2015 ONSC 1737 at para. 11; Maria-Antony v. Ivaschenko, 2019 ONSC 4731 at paras. 11-14). Two approaches have emerged with respect to the court’s exercise of its discretion to grant leave: i.) the more established test which requires the moving party to demonstrate that there has been a substantial or unexpected change in circumstances which may include information in reports that varies significantly from earlier reports (Tanner v. Clark, [2009] O.J. No. 581 at paras. 10-12; Paranitharan v. Alex Irvine Motors Ltd., 2011 ONSC 3104 at para. 7; Babcock v. Destefano, 2017 ONSC 276 (Div. Ct.) at para. 48); and ii.) a broader, more liberal and flexible approach which does not require the finding of a substantial or unexpected change in circumstances but rather provides that the court may grant leave and make the order that is just in all of the circumstances where the interlocutory step is necessary in the interests of justice considering all of the circumstances of each case and Rule 1.04(1)(BNL Entertainment at paras. 12-14).

[21] The more flexible approach is appropriate where, as here, there is no evidence or suggestion that granting leave and ordering the examinations might jeopardize the fixed trial date, which is still approximately 8 months away (Roy at para. 14). Further, it would not affect the pre-trial date or the deadline for expert reports which counsel confirms is flexible and would provide the Plaintiff with sufficient time to deliver reply reports. Cases where leave is denied due to late requests for examinations are generally in circumstances where the pre-trial or trial is imminent and/or significantly closer than the present one (2116656 Ontario Inc. v. Grant and LLF Lawyers LLP, 2018 ONSC 1080; Prabaharan v. RBC General Insurance Company, 2018 ONSC 1639; Nguyen v. Kojo, 2017 ONSC 2014). In some cases, leave has been granted where trial was as close as 3-4 months away (Ortiz v. Sharma, [2007] O.J. No. 2984 at paras. 2-5; Rohit v. Nuri, 2010 ONSC 17 at paras. 24-29).

[22] This more flexible approach is also appropriate, and leave is frequently granted, where substantive rights such as trial fairness are at issue (Ortiz at paras. 2-5; Rohit at paras. 24-29; Kernohan et al v. The Corporation of the Regional Municipality of York, 2009 9422 (ON SC), [2009] O.J. No. 886 at para. 22; Tanner at para. 15; Mason v. MacMarmon Foundation, 2011 ONSC 5823 at para. 35). It is also consistent with full pre-trial disclosure and discovery rights which promote trial efficiencies and settlement (BNL Entertainment at para. 15; Ortiz at paras 2-5; Rohit at paras. 24-29). As set out below, I have concluded that both trial fairness and the Defendants’ pre-trial discovery rights are at issue on this motion.

[23] Given that an adjournment of trial would not be required and the fundamental issues of trial fairness and full discovery are at issue, it is appropriate in the circumstances to adopt the more flexible approach and grant leave for the Defendants’ motion to proceed.

[24] Turning to whether the assessments should be ordered, the Plaintiff submits that there is no unfairness in limiting the Defendants to a paper review of his medical records. Following the rescission of the Original Settlement in October 2013, the Plaintiff received significant payments from his AB Insurer. Therefore, he submits that his claims against the Defendants have been narrowed and are now largely limited to the period from 2003-2013 when, due to the absence of benefits and his financial circumstances, he was unable to obtain treatment (though Plaintiff’s counsel suggested it might extend to the Final Settlement in August 2017). Accordingly, the Plaintiff argues that consideration of his medical condition is limited to whether the delay in obtaining treatment from 2005-2013 caused additional pain and suffering for which the Defendants are liable. The Plaintiff asserts that, as a result, the proposed assessments in 2021 cannot shed any light on the deterioration of the Plaintiff’s condition from 2005 to 2017 particularly where the Defendants have already been provided with voluminous medical documentation. The Plaintiff also claims, at least with respect to his physical condition, that there have been no changes since at least 2017.

[25] The purpose of a defence medical examination is to achieve trial fairness and a level playing field by putting the parties on a basis of equality as near as it is possible (Ortiz at paras. 2-5; Rohit at paras. 24-29; Vanderidder v. Aviva Canada Inc., 2011 CarswellOnt 8811 at para. 35). Allowing a plaintiff to adduce expert evidence of damages while denying the defendant the ability to test and challenge that evidence through its own expert is inconsistent with trial fairness, unduly restricts the defendant’s pre-trial preparation and risks creating a perceived imbalance (Moore v. Wakim, 2010 ONSC 1991 at para. 4; Vanderidder at para. 35).

[26] In my view, trial fairness demands that the Defendants be provided with an opportunity to respond to the Plaintiff’s reports. It is not disputed that the Plaintiff’s physical and mental condition are at issue. Although the Plaintiff concedes that his claims and the issues to be tried have been narrowed by the payments he received from his AB Insurer starting in 2013, he is still claiming $750,000 for physical and psychiatric damages resulting from his inability to obtain treatment from 2005-2013. He has not amended his Statement of Claim, he has not reduced his damage claim related to physical and psychiatric loss and he intends to rely on the reports of Dr. Kirwin and Dr. Rosenblat at trial. No explanation has been provided as to why, if the Plaintiff’s claims have been reduced due to the payments and treatments he received, he is still claiming the same amount as when he commenced this action almost 15 years ago. There are no particulars and no formal commitment regarding the limitation of the Plaintiff’s claims and as such, it remains as pleaded for the purposes of discovery.

[27] I also do not accept that a line can be drawn with respect to the Plaintiff’s condition such that any assessments after 2013 or 2017 are irrelevant. In fact, Plaintiff’s counsel conceded during oral submissions that the Plaintiff’s psychiatric condition after August 2017 remains a live issue. While the Plaintiff insists that his physical condition remains unchanged, this does not render the proposed in-person physical examination moot. The Defendants should be permitted to challenge the Plaintiff’s assertions about his condition, including those in Dr. Kirwin’s reports and the suggestion that it remains unchanged. Further, the proposed in-person assessment will also be probative of any lasting or long-term effects of the Plaintiff’s inability to obtain treatment during the period after the Original Settlement until 2013.

[28] The Plaintiff’s position is largely premised on the fact that significant medical records have been provided to the Defendants. I am not satisfied that a paper review of the Plaintiff’s medical records, however voluminous, is sufficient to achieve trial fairness. The Plaintiff has had the benefit of multiple in-person assessments and delivered 5 expert reports. It would be inconsistent with trial fairness, create an unlevel playing field and impair the Defendants’ pre-trial discovery rights to deny the Defendants the opportunity to have their experts conduct assessments and deliver reports. Updated reports from both sides would assist the parties and the trier of fact at trial and may facilitate settlement discussions (Trilokie v. Lasenby, 2015 ONSC 6376 at paras. 10-11; Maria-Antony at para. 33). As set out above, there is no basis to deny the assessments based on the timing of this motion as they would not delay trial and the Plaintiff will have sufficient time to deliver reply reports and therefore is not prejudiced (Nguyen at para. 6; Prabaharan at para. 19).

[29] The Plaintiff’s convenience is a relevant consideration on this motion (McGowan v. Green, 2020 ONSC 686 at para. 10). Since the Defendants are now requesting that the psychiatric assessment take place virtually with Dr. Waisman, the issues raised by the Plaintiff regarding his convenience are only relevant to the proposed in-person orthopaedic assessment.

[30] The Plaintiff is 67 years old and lives in Coldwater, approximately 148 km from Sunnybrook. While he expressed concern about the length of the drive, most of his concerns relate to COVID-19. He is not due to receive his first vaccination until May 23, 2021 and has been reluctant to leave home except for an appointment with his family doctor in Oshawa on March 26, 2021. The return trip from his home to Oshawa is approximately 80 km further than Sunnybrook and the Plaintiff states that it caused significant pain. The Plaintiff has also raised an issue regarding the availability of his son to drive him, however, the Defendants have agreed to arrange and pay for a commercial ride service.

[31] Ontario courts have held that requiring a plaintiff to attend an in-person defence medical assessment during the COVID-19 pandemic does not impose an undue hardship where the examination will be conducted with COVID-19 safety protocols (Mierzejewski v. Brook, 2021 ONSC 2295 at para. 10; Severin v. Barker, 2020 ONSC 7784 at para. 72). However, given the extraordinary and rapidly evolving circumstances with respect to the pandemic when this motion came before me, including the Stay-At-Home Order, it was incumbent upon the court to take all safety concerns into consideration. In my view, the Plaintiff’s concerns regarding COVID-19 can be addressed by having Dr. Larouche conduct the assessment on July 13, 2021. It is expected that a Stay At Home Order will not be in effect, the Plaintiff will have had his first vaccine and Sunnybrook, a major hospital and health care facility, has comprehensive COVID-19 protocols in place. If the status of the pandemic in July calls for it, the parties can arrange a telephone case conference with me to speak to any concerns. I am also satisfied that the distance from the Plaintiff’s home to Sunnybrook is not inconvenient and distinguishable from the circumstances in McGowan where the plaintiff was being asked to travel 450 km, 3 times the distance in the present case. The ride service has COVID-19 protocols in place and the Plaintiff is free to make his own arrangements for which the Defendants will reimburse him.

IV. Disposition

[32] Order to go as follows:

i.) the Plaintiff shall attend a virtual psychiatric assessment with Dr. Zohar Waisman on May 25, 2021 at 12:00 p.m. or such other date and time as the parties may agree;

ii.) the Plaintiff shall attend an in-person orthopaedic assessment with Dr. Jeremie Larouche at Sunnybrook Health Sciences Centre in Toronto on July 13, 2021 at 10:00 a.m. or such other date and time as the parties may agree;

iii.) if necessary, the parties may schedule a telephone case conference for further case management and directions.

[33] If the parties are unable to agree on the costs of this motion, counsel may file written costs submissions not to exceed 3 pages (excluding Costs Outlines) on a timetable to be agreed upon by counsel. If the parties cannot agree on a timetable, a telephone case conference may be scheduled to speak to one.

Released: June 13, 2021

Master M.P. McGraw