COURT FILE NO.: CV-09-387789
MOTION HEARD: 20210629
REASONS RELEASED: 20210709
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
NAVARATHY CHANDRABABU and NALLAIAH SINNAPPU
Plaintiffs
- and-
SUTHA THARMALINGAM
Defendant
-and -
INTACT INSURANCE COMPANY
Statutory Third Party
BEFORE: MASTER M.P. McGRAW
COUNSEL: N. Wine
-for the Statutory Third Party and the Defendant
E-mail: nwine@laxtonglass.com
R. Plate
-for the Plaintiffs
E-mail: rplate@morseshannon.com
REASONS RELEASED: July 9, 2021
Reasons for Endorsement
I. Introduction
[1] This is a motion by the Defendant and the Statutory Third Party, Intact Insurance Company (“Intact”) to compel both Plaintiffs to attend in-person defence medical examinations with a physiatrist, the Plaintiff Navarathy Chandrababu to attend a defence psychiatric assessment and to extend the time for service of the Defendant’s expert reports.
II. Background
[2] The Plaintiffs allege that they have suffered injuries due to a motor vehicle accident on October 3, 2007 in Scarborough. This action was commenced by Statement of Claim issued on September 24, 2009 in which Ms. Chandrababu and the Plaintiff Nallaiah Sinnappu claim general damages of $850,000 and $350,000, respectively. Both claim $150,000 in special damages.
[3] Examinations for discovery were completed in February 2011. Intact denied coverage to the Defendant and was added as a Statutory Third Party on August 5, 2015. On June 26, 2015, the Plaintiffs commenced an action for underinsured coverage against their insurer. While this companion action has since been dismissed, examinations for discovery of the Plaintiffs were completed on December 13, 2018 and January 25, 2019. Intact subsequently reinstated coverage and counsel has advised that it will be discontinuing the third party proceedings and delivering a Notice of Appointment to act for the Defendant.
[4] Ms. Chandrababu claims damages related to alleged neck and back pain, headaches, insomnia and psychological issues. She has attended one defence medical examination with Dr. Perry Tepperman, a physiatrist, on January 26, 2016. She has not attended a defence psychiatric or psychological assessment. Mr. Sinnappu complains of pain in his right knee, right shoulder, lower back, chest and head. He has not attended a defence medical assessment.
[5] A 15-day trial was initially scheduled for October 2019 with a pre-trial on July 2, 2019. These were adjourned at the request of the Plaintiffs over the Defendant’s objections as 15 days was insufficient. The parties attended Trial Scheduling Court and agreed to a 25-day trial commencing September 27, 2021 with a pre-trial on June 17, 2021.
[6] Prior to July 2, 2019, counsel delivered significant documentation with respect to the Plaintiffs, particularly, Ms. Chandrababu. This included numerous reports of Dr. Joseph Wong, a physiatrist, in which he concluded that Ms. Chandrababu was totally disabled from returning to any type of work, had sustained a serious and permanent impairment of an important physical function due to the accident and experienced deterioration in her condition. Functional assessment reports opined that her functional capacities were not consistent with meeting the essential physical demands of sedentary work. Reports were also delivered from Dr. Kanagaratnam, a psychologist, which disclosed that she was seeing a psychiatrist and had been diagnosed with Post Traumatic Stress Disorder (“PTSD”) resulting from the murder of 2 family members. It also concluded that she had Somatic Symptom Disorder primarily related to the accident and anticipated that she would not recover from the accident. Future care and loss of income reports were also delivered. Numerous reports from Dr. Wong regarding Mr. Sinnappu were also delivered together with reports from Dr. Pierre Kirwin, a physiatrist, who opined that he had sustained serious and permanent impairments of an important physical function including considerable worsening of his left shoulder. Future care and accounting reports were also delivered.
[7] On or about November 16, 2020, Plaintiffs’ counsel delivered updated OHIP summaries for both Plaintiffs and family doctor’s records for Ms. Chandrababu up to April 30, 2020 and Mr. Sinnappu up to July 9, 2020. On December 22, 2020, January 11 and February 11, 2021, Defendant’s counsel requested updated medical records. Plaintiffs’ counsel replied on February 11, 2021, advising that he was updating their records and reports. Defendant’s counsel followed up on March 3, 2021 to request an update citing the upcoming June pre-trial and the need to know whether further experts would need to be retained.
[8] On March 17, 2021, Plaintiffs’ counsel served an expert report from Dr. Wong dated March 3, 2021 with respect to Mr. Sinnappu. On March 18 and 22, 2021, Defendant’s counsel requested updated family doctor’s notes for both Plaintiffs. On March 22, 2021, Plaintiffs’ counsel served an expert report from Dr. Wong dated March 3, 2021 with respect to Ms. Chandrababu and updated records of Dr. Choi-Fung (her family doctor) which referenced records from her psychiatrist, Dr. Regina Ching Yin Liu, and that she was suffering from a Major Depressive Disorder (“MDD”) due to the murder of her husband and son in 2016. Dr. Wong’s report noted that she had been receiving psychiatric treatment from Dr. Liu since 2017. During her examination for discovery on December 13, 2018, Ms. Chandrababu advised that she was seeing a psychiatrist, however, she could not recall her name. An undertaking to provide Dr. Liu’s clinical notes and records was given, however, they were not produced.
[9] Defendant’s counsel requested Dr. Liu’s complete file on March 22, 2021. Plaintiffs’ counsel did not respond and on April 4, 2021, Defendant’s counsel advised that he had received instructions to arrange for physiatry assessments of both Plaintiffs and a psychiatric assessment of Ms. Chandrababu. On April 5, 2021, Plaintiffs’ counsel provided OHIP summaries for each Plaintiff and Dr. Liu’s records. Plaintiffs’ counsel had received Dr. Liu’s records on July 26, 2018 and January 29, 2021 and has advised that the delayed delivery was due to inadvertence. Plaintiffs’ counsel advised on April 12, 2021 that they would object to any further defence medical assessments. On April 20, 2021, Defendant’s counsel confirmed the Plaintiffs’ refusal for Mr. Sinnappu to attend an in-person physiatry assessment with Dr. Shariff Dessouki on April 27, 2021 and Ms. Chandrababu to attend a psychiatric assessment with Dr. Robert Weinstein on April 27, 2021 and a physiatry assessment with Dr. Tepperman on a date to be determined. At the time, the Plaintiffs objected to attending in-person assessments due in part to the ongoing COVID-19 pandemic particularly since both had received their first vaccinations in March 2021.
[10] On May 11, 2021, the Plaintiffs served additional future care reports and on May 13, 2021 a functional capacity evaluation report. On June 3, 2021, Plaintiffs’ counsel then served 7 additional expert and addendum reports with respect to both Plaintiffs including a psychological report by Dr. Kanagaratnam dated May 30, 2021 with respect to Ms. Chandrababu.
[11] The Defendant seeks an order compelling both Plaintiffs to attend in-person medical assessments with Dr. Dessouki, a physiatrist, on July 13, 2021 and for Ms. Chandrababu to attend an in-person psychiatric assessment with Dr. Weinstein on July 20, 2021.
III. The Law and Analysis
[12] For the reasons that follow, leave is granted to bring this motion and the Plaintiffs are ordered to attend the defence examinations requested.
[13] 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.
[14] Rule 33.02 states:
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.
33.02(2) The court may order a second examination or further examination on such terms respecting costs and other matters as are just.
[15] 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. 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).
[16] There are two approaches to the court’s exercise of its discretion to grant leave under Rule 48.04(1): i.) a 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; Walti v. Ellahi, 2021 ONSC 3914 at para. 7); and ii.) a broader, more liberal and flexible approach which does not require the finding of a substantial or unexpected change in circumstances but 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; Walti at para. 7). In my view, the Defendant has satisfied both tests.
[17] Chalmers J. recently held in Walti, a case similar to the present one, that, although leave was unopposed, the volume of expert reports delivered since the action was set down for trial constituted a sufficient change in circumstances to grant leave for a cross-motion seeking additional medical examinations (Walti at paras. 10-11). In the present case, the Plaintiffs delivered 12 expert reports between March 17, 2021 and the pre-trial on June 17, 2021. While 4 of these 12 reports were non-medical, and some were addendums, I am satisfied that the volume and timing of the additional reports, together with my conclusion below that the recent reports and records demonstrate a significant and unexpected change in the Plaintiffs’ conditions, supports the granting of leave.
[18] Given my conclusions below that fundamental issues of trial fairness and pre-trial discovery are at issue and that ordering the assessments will not jeopardize the fixed trial date, I am satsified that that the more liberal, flexible approach is also applicable and has been met in the circumstances (Roy at para. 14; 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; Ortiz v. Sharma, [2007] O.J. No. 2984 at paras. 2-5; Rohit v. Nuri, 2010 ONSC 17 at paras. 24-29; BNL Entertainment at para. 15).
[19] Rule 53.03(1) provides that a party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1). Rule 53.02(2) provides that a party who intends to call an expert witness at trial to respond to the expert witness of another party shall, not less than 60 days before the pre-trial conference, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1). The court may, on a motion, extend or abridge the time for service of an expert report or supplementary report (Rule 53.03(4)).
[20] 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 long recognized that defence medical assessments are an integral part of the discovery process (Bellamy v. Johnson, (1992) 1992 CanLII 7491 (ON CA), 8 O.R. (3d) 591 (C.A.) at para. 16).
[21] 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).
[22] In Walti, Chalmers J. held as follows:
51 The Defendants state that they require a further examination by Dr. Kleinman and a new examination by a psychologist. The Defendants argue that the Plaintiff produced a significant amount of medical evidence since her initial defence medical assessment with Dr. Kleinman in 2019. On February 26, 2021, the Defendants received updated psychological records from Dr. Bodenstein, which provide that the Plaintiff is continuing to receive psychiatric treatment.
52 A party seeking the order must demonstrate that the assessment is warranted and legitimate and not made with a view to delaying the trial or causing prejudice to the other party. A request may be legitimate where there is evidence that:
i. the party's condition has changed 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 after the defendant conducted its assessment; or,
iv. some of the parties' injuries fall outside of the expertise of the first examining doctor: Bonello v. Taylor, 2010 ONSC 5723, at para. 16.
53 The Plaintiff argues that the Defendants failed to establish that the medical examinations are necessary. In the alternative, the Plaintiff argues that even if the Defendants establish that the examinations are necessary, the request should be denied because the Defendants failed to proceed diligently and in accordance with the timetable for the delivery of expert reports. The parties agreed to a timetable that included a deadline of December 25, 2020 for the service of Defendants' expert reports. The Plaintiff's reports were served in accordance with the timetable. The Plaintiff argues that there are no extraordinary circumstances in this case that would justify granting the Defendants' request for medical assessments on the eve of trial.
54 For the reasons set out above, the trial in this matter will not take place in June 2021. The parties are no longer on the eve of trial.
55 I am satisfied the Defendants have established that further medical examinations are necessary. Although the Plaintiff alleged a psychological injury in the Statement of Claim, it was only with the production of the records from Dr. Bodenstein in February 2021 that the Defendants learned the Plaintiff was continuing to receive psychological treatment.
56 There is now sufficient time before trial to conduct the medical examinations. The Defendants argue that there is no prejudice to the Plaintiff to proceed with the medical examination but the Defendants may suffer prejudice if they are not given an adequate opportunity to meet the Plaintiff's case: Galea v. Firkser [2013] O.J. No.. 1251, at para. 14. The Plaintiff focused her argument on the fact that the request for medical examinations was being made too close to the commencement of trial. No other allegations of prejudice were raised.
57 I am satisfied that there is no prejudice to the Plaintiff to submit to a further examination by Dr. Kleinman and a first examination with a psychologist. She has put her physical and psychological condition in issue in the action. She recently delivered records which provide that she is continuing to attend treatments with Dr. Bodenstein. The examinations can be conducted at this time without delaying the trial.”
[23] In Bonello, D.M. Brown J. (as he then was) held that whether a further examination is warranted and legitimate is an exercise of discretion which depends on the specific facts and equities of each case, where the court may consider, among other things: if the plaintiff’s condition has changed or deteriorated since the date of a previous examination; a more current assessment is required for trial; the plaintiff has served specialist reports from new assessors after the defendants had conducted their medical assessments; and whether the request for a further examination would impose an undue burden on the plaintiff in light of the number examinations already conducted (Bonello at para. 16).
[24] Both Plaintiffs have put their physical condition and, in the case of Ms. Chandrababu, her mental condition, at issue. In my view, the assessments sought by the Defendant are warranted and legitimate in the circumstances and there is no evidence that they are being sought for tactical reasons such as delaying trial. I conclude that the recent reports and documentation delivered by the Plaintiffs demonstrate, in timing, volume and substance, that there have been material, unexpected changes in the Plaintiffs’ conditions and that trial fairness requires that the Plaintiffs attend the medical assessments so that the Defendant can properly respond.
[25] With respect to the proposed psychiatric assessment of Ms. Chandrababu, the Plaintiffs submit that the content of Dr. Liu’s records and Dr. Kanaaratnam’s report are not unexpected since the Defendant has been aware since Ms. Chandrababu’s examinations for discovery in December 2018 that she has been receiving psychiatric care related to her family tragedy and not the accident. However, the Defendant did not learn of the MDD diagnosis or the true scope and nature of Ms. Chandrababu’s psychiatric treatment until April 5, 2021. These are significant and unexpected changes in her condition raising causation and damages issues which cannot be characterized as an ongoing discussion of matters or a continuation of what was already known (Sivagnanasuntharam v. Wong, 2021 ONSC 2100 at para. 35; Ramrup v. Lazzara, 2014 ONSC 130 at para. 48; Walti at para. 55). This is in addition to the report of Dr. Kanagaratnam not served until 14 days before the pre-trial. I also reject the Plaintiffs’ argument that the assessment should be denied because the Defendant is requesting a psychiatric assessment in response to a psychological report. The present case is distinguishable from Daggitt v. Campbell, 2016 ONSC 2742 where the plaintiff had never been treated by a psychiatrist, was improving and no longer receiving psychological care or counselling. The request for a psychiatric assessment is also consistent with the Defendant’s right to choose its expert and is being made for substantive, not tactical reasons (Ismail v. Ismail, 2018 ONSC 6489 at paras. 33-47).
[26] With respect to the proposed physiatry assessments, the recent reports and medical records reflect material deteriorations of both Plaintiffs’ conditions which in my view are more than a continuation of what was already known. In Dr. Wong’s most recent report dated March 3, 2021, he opines that Ms. Chandrababu’s shoulder and back pain has worsened since her last examination in 2019. Specifically, the pain and impairment, previously limited to her right shoulder, is now limiting the range of motion and causing rotator cuff pain in her left shoulder. This conclusion is supported by the most recent Future Cost of Care Report dated May 10, 2021 in which Ms. Chandrababu advises that her overall functioning has “deteriorated” and that she has been unable to resume her pre-accident housekeeping tasks or complete personal care tasks with ease. I am satisfied that a second examination is necessary and warranted. Since Dr. Tepperman recently retired, it is not possible for him to conduct her second assessment as the Plaintiffs insist. With respect to Mr. Sinnappu, Dr. Wong states in his most recent report dated March 3, 2021 that the myofascial injury to his neck has “deteriorated” since his last examination in 2019, the range of motion in his shoulder, normal in 2019, is limited, and that his “condition has worsened when compared with his last examination”. The Plaintiffs submit that Mr. Sinnappu’s deteroriation is not an unexpected material change but rather natural deterioration associated with someone who is 88 years old. In my view, there are causation issues related to these alleged deteriorations which the Defendant is entitled to assess.
[27] I do not accept the Plaintiffs’ submissions that the Defendant did not act with reasonable diligence and that the assessments could and should have been requested sooner. Defendant’s counsel did not receive Dr. Liu’s records until April 5, 2021 and Dr. Kangaratnam’s report until June 3, 2021, just 2 weeks before the pre-trial contrary to Rule 53.03(1). Without Dr. Liu’s records, the Defendant could not have known or fully appreciated the nature and scope of Ms. Chandrababu’s ongoing psychiatric treatment or condition to determine if an assessment was required and did not have the necessary records to provide to its own expert in any event. Dr. Wong’s reports were received on March 17 and 22, 2021, the latter also less than 90 days before the pre-trial. This was after Defendant’s counsel requested an update regarding productions on March 3, 2021 specifically raising the forthcoming pre-trial and the need to determine if any further experts were required. The Defendant first requested that the Plaintiffs attend defence assessments on April 4, 2021, approximately 75 days before the pre-trial, which was reasonable in the circumstances given the timing of the Plaintiffs’ delivery of additional reports and records. Had the Plaintiffs agreed, the Defendant would unlikely have been able to complete the assessments and serve reports more than 60 days before the pre-trial. However, even late, they could have been served for use at the pre-trial similar to the Plaintiffs’ late delivery of Dr. Kanagaratnam’s report. Even with 10 of 12 reports served on time, some being non-medical, the Plaintiffs’ choice to serve reports and records with substantial changes of condition when they did put the Defendant in a position where counsel did they best they could in the circumstances.
[28] The fact that the Defendant was prepared to go to trial in 2019 with only Dr. Tepperman’s 2016 report does not foreclose ordering assessments in advance of the new trial date and Plaintiffs’ counsel could not refer me to any authority for this proposition. The Defendant is entitled to assess whether it believes additional reports are required in light of the current circumstances and additional reports and records delivered by the Plaintiffs.
[29] In balancing the parties’ rights, the actual prejudice to the Defendant outweighs the potential prejudice to the Plaintiffs. The Defendant’s proposed assessments and reports are in response to the reports and information delivered by the Plaintiffs reflecting material and significant changes in the Plaintiffs’ conditions. To deny the relief sought and force the Defendant to trial without the ability to respond to the new reports and information, including no defence psychiatric report for Ms. Chandrababu and no defence physiatry report for Mr. Sinnappu, would result in prejudice by depriving the Defendant of an adequate opportunity to meet the Plaintiffs’ case (Walti at para. 56). In my view, this would be contrary to trial fairness especially in circumstances largely caused by timing choices made by the Plaintiffs. While the Plaintiffs submit that ordering the assessments will not leave them with sufficient time to file their own responding reports, there are approximately 11 weeks, almost 3 months until trial. Given the proposed timing of the assessments and the Defendant’s undertaking to request expedited reports, I am satisfied that ordering the assessments will not jeopardize the fixed trial date and will provide the Plaintiffs with sufficient time to file further reports. The reasoning of Seppi J. in Ortiz, cited in Rohit, is equally applicable to the present case:
“3 In the case at bar there is no report or assessment available for trial from the defence perspective. A defence medical conducted a few months before trial causes no prejudice to the plaintiff and will be of assistance to the trier of fact at trial. Without such a report there would be a concern about unfairness to the defendant, and an imbalance at trial. The plaintiff has produced 3 medical reports from orthopaedic specialists, and the defence quite appropriately wants its own independent orthopaedic assessment before trial.
4 As stated in Crone v. Blue Cross Life Insurance Co. of Canada 2001 ABQB 787, [2001] A.J. No. 1234, "the purpose of defence medical examinations is to put the parties on a basis of equality as nearly as it is possible in terms of collecting evidence of the injuries. There is still time for the defendant's report to comply with Rule 53.03, and the defendant reasonably explains waiting until later in the proceedings to allow for the most up-to-date medical assessment. The defendant is typically only allowed one defence medical and an assessment over 2 years before the trial would not be as helpful to the trier of fact as is an up-to-date assessment.
5 The request for a defence orthopaedic medical made in June 07, was necessary and appropriate in the circumstances of this case. The trial date is not jeopardized, and there is no prejudice to the plaintiff. If the request is not allowed, there could be prejudice to the fairness of the trial due to a perceived imbalance, and prejudice to the defendant in being unduly restricted in his pretrial preparation.”
[30] To the extent that the Plaintiffs are unable to file all of the responding reports they wish to rely on at trial, the Defendant’s right to respond at all to the significant number of the Plaintiffs’ existing reports outweighs the Plaintiffs’ right to deliver even more reports. Further, this is a risk the Plaintiffs’ assumed given the timing of the delivery of their reports and updated records, some of which did not comply with Rule 53.03(1) (Babcock v. Destefano, 2017 ONSC 276 (Div. Ct.) at para. 48).
[31] Finally, there is no evidence of any undue burden on the Plaintiffs of having to attend in-person defence medical assessments generally or due to the current state of the ongoing COVID-19 pandemic which has improved. Both Plaintiffs attended in-person assessments with Dr. Wong as recently as March 3, 2021 and COVID-19 protocols will be in place at the medical facilities where they will attend (Mierzejewski v. Brook, 2021 ONSC 2295 at para. 10).
IV. Disposition
[32] Order to go as follows:
i.) the Plaintiffs shall attend in-person physiatry assessments with Dr. Dessouki on July 13, 2021 or such other date as the parties may agree;
ii.) Ms. Chandrababu shall attend an in-person psychiatric assessment with Dr. Weinstein on July 20, 2021 or such other date as the parties may agree;
iii.) the time for the delivery of additional expert reports is extended as the parties may agree or as may be further ordered by the court;
iv.) 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, counsel may schedule a telephone case conference to speak to one.
Released: July 9, 2021
Master M.P. McGraw