Court File and Parties

COURT FILE NO.: 120/16

DATE: 20211112

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ariana Vaquerano Gwizd, a.k.a. Ariana McGill by her Litigation Guardian Aaron Cowell, Plaintiff

AND:

Cara Sylvia Gwizd, Adam L. McGill, The Corporation of the City of London, The Corporation of the County of Middlesex and John Doe Corporation, Defendants

BEFORE: Rady J.

COUNSEL: Christopher S. Collins, for the Plaintiff George Poirier, for the Defendants, Cara Sylvia Gwizd and Adam L. McGill Sheila Handler, for the Defendant, City of London (not attending)

HEARD: September 28, 2021

Endorsement

Introduction

[1] This is a personal injury arising from a single vehicle accident that occurred on January 19, 2014. The plaintiff, Ariana, was a passenger in a car being driven by the defendant, her mother Cara. It is alleged that Ariana sustained a brain injury as a result of the accident. Damages of $6,000,000 are sought. There is a companion action by the defendant McGill who alleges he was injured and seeks damages of $1,000,000. The pleaded claims exceed Cara’s policy limits.

[2] Counsel, on behalf of Ariana, seeks an order compelling Cara to be present during all of her medical appointments and assessments. It is submitted that Cara’s presence during those appointments is necessary to provide relevant information, such as her medical history, to her treatment providers and to medical-legal assessors. The City of London takes no position and the other defendants have been let out of the action.

Background

[3] Ariana was born on August 1, 2007 in El Salvador. She and her mother came to Canada in 2008. They live with Cara’s spouse (Ariana’s stepfather) Aaron Cowell, who is her Litigation Guardian. Ariana was seven at the time of the accident. There is evidence that she fell when she was nine months old and may have sustained a head injury. She received treatment for this injury in El Salvador. The medical records from El Salvador are no longer available.

[4] Ariana has not been examined for discovery to date. Her counsel says that she is incapable of participating and relies on a report dated April 23, 2020 from Monique Feron, a social worker who saw Ariana between August and December 2019. She expresses the view that Ariana would suffer from increased anxiety, insecure thinking and she might experience setbacks in her progress. Ms. Feron says Ariana (who was twelve at the time of their meetings) was more like an eight year old in problem solving techniques. She had an “unsettled sense of self that would be further harmed if re-exposed to matters related to her injury or impairment”.

[5] She also concluded that Ariana’s ability to report relevant information was unreliable.

[6] Ariana had been previously assessed by Dr. Susan Pigott, a neuropsychologist, on September 25 and 27, 2017. In her report of February 23, 2018, Dr. Pigott records that she was unable to interview Cara and Mr. Cowell was unable to provide a complete developmental history for Ariana. It was Dr. Pigott who suggested that the medical records from El Salvador be obtained.

[7] The defendant has a report dated October 23, 2019 from Dr. Wayne Langburt, a pediatric neurologist who conducted a medical legal assessment on September 23, 2019 at the City of London’s request. He concluded that Ariana did not suffer a permanent neurologic or brain injury in the accident. He also considered that she could participate in an Examination for Discovery with appropriate accommodation. Cara attended that assessment and provided information about Ariana’s history, treatment and recovery.

[8] Counsel for Cara has arranged for Ariana to be seen by Dr. Dalia Slonim, a neuropsychologist, in order to determine whether Ariana is capable of participating in an Examination for Discovery. The defence has objected to Cara being present during the assessment but has agreed that Cara can accompany Ariana at all treatment provider appointments and medico-legal assessments and be interviewed by the assessor as necessary. No objection is raised to having another chaperone present during the assessment provided he/she does not interfere or interject.

[9] The issues raised on this motion are first whether leave should be granted pursuant to Rule 48.04(1) because the trial record has already been passed. The second is Cara’s presence at medical appointments and the extent of her participation.

Position of the Parties

[10] On the first issue, the plaintiff submits that the trial record was passed only to avoid an administrative dismissal. Further, while it is conceded that the unavailability of the El Salvadorean records and the defence position about Cara’s presence were known before the trial record was passed, these factors and the appointment with Dr. Slonim created a substantial change of circumstances. In the alternative, the plaintiff submits that the interests of justice supports her position.

[11] The defendant counters that there is nothing new or unexpected about the issues, which are longstanding and were known prior to the trial record being filed.

[12] Rule 48.04(1) provides:

…any party who has set an action down for trial and any party 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.

[13] I was referred to a number of authorities that discuss the test to be used in determining whether leave should be granted. Two lines of jurisprudence have developed regarding the test, one of which is restrictive and the other more expansive.

[14] I have concluded that a broader approach should be taken in the circumstances, with an emphasis on the interests of justice, particularly because this claim involves an infant. This was the approach taken in BNL Entertainment Inv. v. Ricketts, 2015 ONSC 1737.

[15] It would have been preferable and more prudent for the plaintiffs to have sought leave to extend the time to file the trial record, but nevertheless, this motion should be permitted to proceed.

[16] The plaintiff submits that Cara’s presence at all of Ariana’s medical appointments and assessments is necessary so that the medical professionals have a complete understanding of her history. Her Litigation Guardian is unable to do so because he did not know her until after she came to Canada.

[17] Counsel for Cara acknowledges that Cara is in a difficult situation. She understandably wants to be with her daughter for all of her medical appointments. On the other hand, claims in excess of her policy limits are advanced and concern is expressed of potential prejudice to the defence.

[18] Counsel for Cara has no objection to Cara accompanying Ariana to her various appointments and to providing all relevant history. It does not wish her to be present in the room while the assessment itself is being conducted. No objection is taken to the Litigation Guardian or another chaperone being present during the assessment and Cara could be interviewed separately as necessary.

[19] Counsel suggests that the plaintiff’s request is too broad with no temporal limitations that would take account of Ariana’s evolving maturity. In any event, there is a lack of evidence that Ariana cannot see doctors without her mother in the room or that Cara’s presence is required by the doctor.

The Law

[20] The Court’s authority to order a medical examination derives from s. 105 of the Courts of Justice Act, which is excerpted here:

(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.

[21] Section 33.05 of the Rules of Civil Procedure provides:

33.05 No person other than the person being examined, the examining health practitioner and such assistants as the practitioner requires for the purpose of the examination shall be present at the examination, unless the court orders otherwise.

[22] The substantive motion is unusual. Most frequently, it is a motion by the defence to compel an unwilling plaintiff to attend a medical-legal assessment. Here, there is a willing defendant who wishes to be compelled to attend and be present during the plaintiff’s medical appointments and assessments. There is no authority that has been provided that is directly on point. The plaintiff relies on Barnes (Litigation Guardian) v. London (City) Board of Education, [1994] O.J. No. 1480 (S.C.J. Div. Ct.); Jones (Litigation Guardian) v. Ashprior Charitable Foundation, 2012 ONSC 3769; and Van Dijk-Alac v. Aviva General Insurance Company, 2021 ONSC 1334.

[23] In Barnes, the Divisional Court essentially adopted the reasoning of Justice Flinn in his decision granting leave to appeal from a decision by the motions judge. In that case, the defendants’ chosen assessor wished to interview the infant plaintiff’s parents (who were also plaintiffs) in order to have as much information as possible. In the leave decision, the Court had observed:

It seems to me that inasmuch as the plaintiffs’ psychologist spent so much time in his report making the observations that he did from his interview with the mother and father that this in fact provided a great deal of information for his report and indeed, his findings. It would seem to me therefore rather unfair if the defendant was not entitled to the same consideration.

[24] The Divisional Court agreed. After quoting extensively from the leave decision, the Court concluded:

[2] The plaintiffs’ psychologist has delivered an extensive report, much of which was dedicated to information he obtained from interviews with Kristin’s parents and from the rating scales they completed about which he stated:

The overview from the parental ratings is important in understanding the integration of Kristin’s historical attention deficit hyperactivity disorder and the nature of trust and impulsive behaviours that occur partly because of that in his poor judgment and abilities.

…Kristin, who is under a disability, is not in a position to provide the examining health practitioner with necessary and relevant information…

[5] Accordingly the appeal is allowed. Kristin Barnes is to attend for an independent medical examination before Dr. Lennard Shangi on a date to be agreed upon by the parties. As part of the independent medical examination the plaintiffs, Clifford Barnes and Joyce Barnes, are to attend to be interviewed by Dr. Shangi and to answer all relevant questions put to them in order to assist him in evaluating the mental condition of the plaintiff Kristin Barnes.

[25] The Court’s reasoning was adopted in Jones, which was an appeal from the decision of a Master ordering the minor plaintiff’s mother, who was a named third party, to cooperate during a defence neuropsychological examination by completing a questionnaire and submitting to an interview.

[26] The Court upheld the decision observing:

The present case is, in my view, indistinguishable in principle from the Barnes decision. In this case, the plaintiff is similarly a minor under a disability. She is clearly not capable of answering all of Dr. McFadden’s questions. Her mother, Verna Jones, is capable of answering these questions and has, thus far, registered no objection to the proposal. Having determined that the defendants were entitled to have the plaintiff examined by their neuropsychologist, it was certainly open to Master Sproat to fairly ensure that the examination was as helpful and informative as possible in the circumstances.

[27] The most recent decision cited by the plaintiff is Van Dijk-Alac in which the Court ordered the plaintiff’s husband, who was also a plaintiff, to be available at a defence medico-legal assessment to give information that she was unable to provide.

[28] The defendant provided two additional cases. The first is Gordon-Lalonde (Litigation Guardian of) v. Lanark (County), [2007] O.J. No. 127 (Div. Ct.). In that decision, the Court ordered the plaintiff’s mother who was a co-defendant to attend a defence medical appointment to complete all forms and supply relevant information requested and required by the doctor. Justice Swinton wrote at para. 3 that “the fact that she is a co-defendant does not trump the goal of fairness in the litigation process”.

[29] In Nasir (Litigation Guardian of) v. Kochmanski, 2012 ONSC 4088, the Court ordered the plaintiff’s mother to attend a defence medical assessment to participate in an interview and answer relevant questions. The mother had been a third party in the proceeding but the third-party claim had been dismissed against her.

[30] The plaintiff referred me to no authority for the proposition that someone be present during a medical examination of an infant plaintiff. The defence was able to find only one: Jones v. Edwards, 2020 ONSC 5761.

[31] It involved a defence motion to enforce an order that the infant plaintiff be examined by a neuropsychologist. Initially, the infant’s father wanted to be present at the outset of the appointment. When the defence denied the request, the plaintiff refused to attend. On the enforcement motion, the plaintiffs proposed that one of the infant’s grandparents be present on the condition that the grandparent leave once/if the child became comfortable with the assessor.

[32] In my view, the defence proposal is fair and strikes a reasonable balance. It accommodates Cara’s desire to be present at the appointment, albeit not in the examination room. She would also be available for an interview as necessary. Another chaperone, for example, Ariana’s stepfather could be present during the examination in order to ensure Ariana is comfortable, but he would not otherwise participate.

[33] The plaintiff’s proposal is too broad. It does not take into account Ariana’s growing maturity. It is not difficult to envision a time when Ariana might not want her mother present during a medical examination. Furthermore, Ariana’s own doctors may not wish Cara to be present during an examination. Certainly, there is no evidence from them that her presence is required. Finally, Cara’s litigation interests are best protected by proceeding in this way.

[34] I encourage the parties to settle the issue of costs.

If they cannot, I will receive brief written submissions not exceeding three pages, together with their Bill of Costs by December 3, 2021.

Justice H.A. Rady

Date: November 12, 2021