COURT FILE NO.: CV-18-3202

DATE: 20211015

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Darren MacGibbon and Kristi MacGibbon

Plaintiffs

• and -

Joan Warren-Phenix

Defendant

Counsel: R. Levitsky, for the Plaintiffs T. Asselin, for the Defendant

HEARD: September 16, 2021

REASONS FOR DECISION

LEMAY J

1The Plaintiff, Darren MacGibbon, was walking along a residential street on the evening of January 19th, 2018 when he was allegedly struck by a car driven by the Defendant, Joan Warren-Phenix. The Plaintiff’s wife has brought a Family Law Act claim and is also a Plaintiff in this action. However, as this motion involves whether Mr. MacGibbon should attend at a medical examination, I will refer to him as the Plaintiff throughout these reasons.

2The Plaintiff has a complex series of medical conditions that he claims arise as a result of this accident. Those conditions include claims of a head injury that resulted in a concussion, psychological difficulties, a mild traumatic brain injury and various soft tissue issues that have developed into chronic pain.

3The Plaintiff has served three expert reports. These reports are from a physiatrist, a psychiatrist and a neuropsychologist. The Plaintiff has also seen a number of other treating specialists, including two neurologists and a neurosurgeon. It is expected that these specialists will be called at trial, although counsel for the Plaintiff was not prepared to advise as to whether or not they would be called as participant experts.

4The Plaintiff has agreed to be examined by three Defence experts. Those experts are a physiatrist, a psychiatrist and a neuropsychologist. However, the Defendant is also seeking an order requiring the Plaintiff to attend a fourth examination with a neurologist.

5For the reasons that follow, the Defendant’s motion is granted.

Background Facts

a) The Parties, the Injury and the Medical Treatment

6The Plaintiff was walking along a residential street when he was struck by the Defendant’s car. At the time, the Plaintiff was 46 years old. He is currently 50 years old. There is a dispute between the parties as to how serious the accident was. It is not necessary for me to resolve this dispute on this motion.

7The Plaintiff has been seen by a large number of treating physicians over the past four years. From the medical records filed on this motion, it appears that the Plaintiff’s medical condition is complex, both because of the nature of the alleged injuries that the Plaintiff suffered as a result of the car accident and because of the underlying and pre-existing conditions that the Plaintiff may have. I make no conclusions on either of these issues. I simply point to them as complexities that arise in this litigation.

8The Plaintiff’s treatment has included care from both public and private clinics in Canada as well as attendance at the University of Pittsburgh Medical Centre. In other words, not only is the Plaintiff’s medical condition complex, but he has had a complex treatment regime to address the condition.

b) The Status of the Litigation

9The Statement of Claim was served at the end of July, 2018. The parties have completed discovery and a trial record was served on July 10th, 2020. A pre-trial has been scheduled for February 9th, 2022. The matter will be set down for trial after the pre-trial. As a result, a trial is not likely to take place in this matter until at least January of 2023. It will likely take place at a later date, in either May of 2023 or January of 2024.

10As a result, a further expert medical examination in this matter is unlikely to delay either the pre-trial or the trial in this matter.

11The Plaintiff has served Rule 53 expert reports from the physiatrist, psychiatrist and neuropsychologist. The Defendant’s expert examinations are scheduled over the next four months, and involve the same three expert reports. The Plaintiff has consented to an examination by these three experts.

12The Defendant seeks to have the Plaintiff examined by a neurologist. The Plaintiff opposes this examination on the basis that the Defendant is only entitled to three examinations and an examination by a neurologist is not necessary on the facts of this case.

13As I have noted, the Plaintiff has also been examined by a number of other treating specialists. Those specialists include:

a) Dr. Choaden, a neurologist;

b) Dr. Ahluwalia, a sports medicine physician;

c) Dr. Tator, a neurosurgeon;

d) Dr. Wennberg, a neurologist;

e) Dr. Sawa, a neurologist;

f) Dr. Tai, a neurologist:

g) Dr. Tumber an anesthesiologist.

14During the course of argument, I directed Plaintiff’s counsel to the issues raised by Westerhof v. Gee Estate 2015 ONCA 206. Specifically, I asked Plaintiff’s counsel whether the Plaintiff was prepared to undertake not to call all of these specialists as participant experts. Plaintiff’s counsel was not prepared to give that undertaking. This brings me to the law in this area and its application to this case.

Law and Analysis

15The authority to order medical examinations comes from section 105 of the Courts of Justice Act R.S.O. 1990 c. C.43. Section 105(2) of the Courts of Justice Act permits the Court to order an examination of a party by one or more medical practitioners. Section 105(4) and Rule 33, when read together, make it clear that one examination will generally take place as a matter of course but a Court order may be required for more than one examination.

16One of the leading cases on the issue of when defence medicals will be ordered is the decision of Master Haberman in Nelson v. Thiruchelvam 2005 CanLII 4849 (ON SC), 2005 CarswellOnt 739 [2005] O.J. No. 743. In that decision, Master Haberman stated (at paras 21 to 23):

Multiple defence medical examinations are not granted as a matter of course. While there appears to be some dispute in the case law regarding whether the moving party must establish an absolute need for the additional examinations as opposed to the examinations being “critical”, the general principle that appears to emerge from the cases is that the moving party must provide evidence that addresses why they seek particular examinations and the basis for seeking that relief must be clear and compelling. The courts tend to allow additional examinations where it appears necessary to “level the playing field”. For example, where a plaintiff has been seen and/or treated by a series of specialists, the court may determine that it is appropriate for the defendant to have the plaintiff seen by the physicians of their own choosing who practice in the same areas. However, even that is not automatic. There must still be some effort made to demonstrate why an examination by that particular specialist is needed.

The evidence on these motions is critical, and the results will vary from case to case depending on the nature and quality of the evidence filed. While I am not prepared to go so far as some members of the court have done by requiring affidavit evidence from a physician regarding why a particular examination is needed, it is clear, in my view, that something far more than a boilerplate approach is required. At the very least, the evidence must explain why the particular examination is required (see Abergel v. Hyundai Auto Canada (2003) 28 C.P.C. (5th) 372). This means setting out the nature of the specialty of the proposed physician; indicating the type of evidence they can provide and explaining why it is necessary in the context of the injuries and symptoms complained of and the evidence already tendered by the plaintiff. In other words, what evidence will the plaintiff be calling at trial that must be addressed by this particular defence expert?

It is also important to bear in mind that a defendant’s task at trial is not to “solve the problem” or “get to the bottom” of the plaintiff’s complaints. It is therefore not appropriate for them to expect the court to sanction defence medical examinations by medical practitioners with a view to providing a new medical diagnosis. For the most part, these experts are generally called upon to refute the diagnosis already provided by the plaintiff’s treating or expert witnesses and to provide a much a rosier prognosis.

17In short, there is an obligation on the Defendant to explain why the additional examination is necessary. See also Suchan v. Casella 2006 CanLII 20844 (ON SC), [2006] O.J. No. 2467, (2006) 30 C.P.C. (6th) 330. Generally, an Affidavit from counsel merely asserting the need for an examination will not be sufficient. However, in this case, I have more than the mere assertions of counsel. I have also been provided with a significant number of medical records by the Defendant. These records include reports from the Plaintiff’s treating neurologists and from the Rule 53 experts that the Plaintiff intends to call.

18The Plaintiff’s Rule 53 experts have specialties (physiatry, psychiatry and neuropsychiatry) that mirror the specialties of the three defence experts that the Plaintiff has agreed to be examined by. All three of the Plaintiff’s experts have deferred and/or not commented on the Plaintiff’s seizures.

19In addition, one of the Plaintiff’s treating neurologists, Dr. Wennberg, has apparently offered the view that the Plaintiff’s seizures are due to temporal brain lobe damage as a result of the accident. Dr. Wennberg’s notes have not been produced to the Defendant at this stage, of the litigation but the Plaintiff provided testimony on discovery as to Dr. Wennberg’s diagnosis and views on causation. For the purposes of this motion, I accept that testimony.

20In short, there is evidence in this case that the Plaintiff has been examined by a number of neurologists and that at least one of those neurologists may offer an opinion on causation. There is also evidence, in the form of the Plaintiff’s expert reports, that the Defendants’ experts might defer comment on this issue. I acknowledge there is no direct evidence on this point. However, I am prepared to infer that possibility from the contents of the Plaintiff’s experts reports.

21This makes the case before me very different than the decision in Nelson, supra. In Nelson, there was no evidence that the Plaintiff had even been referred to the type of specialists that the Defendant wanted to have her examined by (see para 9). In this case, the Plaintiff may have a neurologist qualified as a participant expert who offers opinion evidence on causation at trial in an area (seizures) where the Rule 53 experts tendered by both sides may not be prepared to comment. This means that the expertise of a neurologist may not be subsumed within the expertise of the defence’s other three Rule 53 experts.

22It is also important to remember the scope of the evidence that Dr. Wennberg could give as a “participant expert”. As set out in Westerhof, supra (at para 60):

[60] Instead, I conclude that a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53.03 where:

• the opinion to be given is based on the witness’s observation of or participation in the events at issue; and

• the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.

23As noted in Coll v. Robertson 2021 ONSC 2124, it is open to Plaintiffs to make their cases through participant experts rather than Rule 53 experts. The Courts must, therefore, be alive to this issue in assessing both whether a defence medical is reasonably necessary and the principles of trial fairness.

24This brings me to the issue of the level playing field, as well as some of the other principles that apply to defence medicals. I begin by acknowledging that a “matching report” is not necessarily needed to level the playing field. See Suchan, supra at para 7.

25However, the overriding principle that must be considered is trial fairness. In Bonnello v. Taylor 2010 ONSC 5723, Brown J. (as he then was) made this point clear when he stated as follows (at para. 15):

[15] The forensic purpose of a CJA s. 105 medical examination is to secure a “written report setting out [the examining health practitioner’s] observations, the results of any tests made and his or her conclusions, diagnosis and prognosis”: Rule 33.06(1). Invariably this is done in order to make available for trial an expert report that responds to a report filed by the plaintiff. Rule 53.03(1) deals at length with the process of exchanging expert reports, as well as with the contents of such reports. A key principle underlying Rule 53.03 is that if one party intends to call an expert witness at trial, she must serve a report from the expert on the other party, and the other party may call a responding expert provided that expert prepares a written report which is served on the opposite party: Rules 53.03(1) and (2). 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. Ltd.:

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.[1]

26Brown J. goes on to set out a series of principles that Courts should consider in deciding whether to grant a second or further examination by a health practitioner. I have already set out my conclusion that the examination is warranted and legitimate because of the potential for a gap in the Defendant’s ability to counter the Plaintiff’s evidence. I have also touched on the fact that the trial is not likely to be delayed as a result of the Defendant’s request (see para. 10, supra).

27In addition, I would note that the potential for a gap in the Defendant’s ability to counter the Plaintiff’s evidence squarely raises questions of trial fairness. The Defendants are entitled to respond to the Plaintiff’s case.

28The Plaintiff has also submitted that a level playing field does not permit the Defendant to have an unlimited number of experts to respond to each type of possible participant expert that the Plaintiff might theoretically call at trial. There are two reasons why I do not give any force to this argument.

29First, it is open to the Plaintiff to undertake not to call specific treating physicians as participant experts. This will limit the case that the Defendant has an obligation to respond to. In this case, the Plaintiff has elected not to provide any such undertaking and has also not identified which of the Plaintiff’s treating physicians will be called as participant experts. At this point, the case that the Defendant has to meet is somewhat amorphous.

30In the absence of information on which treating physicians are being called as participant experts, the Court should assume that the Plaintiff will call all of the treating specialists as participant experts. This assumption should be adopted because there is nothing in the Rules that prevents the Plaintiff from advising that they will call a witness as a “participant expert” at the last minute before trial, or even after the commencement of the trial. It is then possible that a Defendant would either be forced to seek an adjournment as a result of a previously undisclosed participant expert or be forced to proceed to trial without the ability to fully respond to that expert testimony. The Court has an obligation to ensure that matters proceed as efficiently as possible. It is therefore more logical to proceed under the assumption that treating specialists will be called as participant experts and to prepare for trial accordingly.

31Second, the Defendant has not asked for an unlimited number of responding experts. The Defendant has asked for one additional expert medical examination to be conducted. A request for more than one might produce a different result than the Defendant has achieved in this case.

32This brings me to one further point raised by Brown J. in Bonello, supra. The Court must consider the question of whether the additional examination in this case will put an undue burden on the Plaintiff. The Plaintiff has already attended at numerous medical appointments and has agreed to attend at three defence medicals. I fail to see how one additional attendance will put an undue burden on the Plaintiff.

33I should also briefly deal with the Plaintiff’s argument that section 12 of the Evidence Act R.S.O. 1990 c. E.23 limits the number of experts to three except with leave of the Court. There are two problems with this argument:

a) Leave is routinely given in complex injury cases for more than three experts to testify for both sides. This is a decision for the trial judge to make based on all of the evidence at the time.

b) The principles of trial fairness that I have discussed above continue to apply, especially since it is not completely clear to me whether participant experts are caught by the limitations in the number of experts set out in section 12 of the Evidence Act and Rule 53.03 of the Rules of Civil Procedure.

34For the foregoing reasons, I have concluded that the Defendant is entitled to have the Plaintiff attend at a neurological examination on the date booked by the Defendant.

Conclusion and Costs

35For the foregoing reasons, the Defendant’s motion is granted.

36The parties are encouraged to agree on the costs of this motion. Failing agreement, the Defendant may submit costs submissions of no more than two (2) single-spaced pages exclusive of bills of cost, case-law and offers to settle. Those submissions must be served and filed within ten (10) calendar days of today’s date. They must be filed through the electronic portal in the Court office and a copy must also be provided to my judicial assistant at karen.bunbury@ontario.ca.

37The Plaintiff shall have ten (10) calendar days from the receipt of the Defendant’s submissions to submit their own costs submissions. Again, these costs submissions shall be no more than two (2) single-spaced pages exclusive of bills of cost, case-law and offers to settle. Those submissions must be served and filed within ten (10) calendar days of today’s date. They must be filed through the electronic portal in the Court office and a copy must also be provided to my judicial assistant.

38The time limits for submitting costs submissions may not be extended, even on consent, without my leave. If costs submissions are not received within these timelines, then there will be no costs.