COURT FILE NO.: CV-13-0024-00
DATE: 2021-11-26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
RUDOLF STEINBERG, JAKOB STEINBERG and AMANDA STEINBERG minors by their Litigation Guardian, RUDOLF STEINBERG
Plaintiffs
- and -
PAMELA ADDERLEY
Defendant
COUNSEL: M. Stoiko, for the Plaintiffs A. Demeo, for the Defendant
HEARD: Initially heard January 10, 2019, with written submissions filed November 12, 2021, at Thunder Bay, Ontario
BEFORE: Mr. Justice D.C. Shaw
Reasons on Motion
[1] This is a motion by the defence, pursuant to s.105(2) of the Courts of Justice Act and Rule 33 for an order staying this action until the plaintiff, Mr. Rudolf Steinberg, attends defence medical examinations in Toronto or, in the alternative, for an order requiring the plaintiff to attend those examinations.
[2] Mr. Steinberg resides on a rural property near Thunder Bay. He objects to attending defence medical examinations in Toronto. He is willing to attend defence medical examinations in Thunder Bay or to be examined, virtually, by doctors from Toronto.
Background
[3] Mr. Steinberg, now age 51, was a passenger in a single vehicle accident on October 29, 2011. He commenced this action in January 2013.
[4] He submits that he suffers from injuries that render him unable to travel. He states that his injuries include upper cervical ligament damage with resulting impediment to the flow of cerebral spinal fluid. He states that this condition causes symptoms of headaches, dizziness, blurred vision, sleeplessness and cognitive and emotional deficits.
[5] Until February 2017, Mr. Steinberg was represented by Mr. Christopher Hacio. Mr. Hacio served 10 expert reports, including medical reports from a neurologist, a neuropsychologist and an orthopedic surgeon,
[6] In 2016, Mr. Steinberg attended two defence medical examinations in Toronto, an orthopedic examination and a neuropsychological examination.
[7] In February 2017, Mr. Allan Blott took over carriage of the plaintiff’s case. Mr. Blott subsequently served another 17 expert reports, including orthopedic, psychiatric, neurological and neuropsychological reports, as well as rehabilitation assessment, occupational therapy, future care analysis and in-home functional assessment reports.
[8] In September 2018, arrangements were made between counsel to have Mr. Steinberg attend in Toronto in November 2018 for defence medical examinations by a physiatrist and a neuropsychologist, responding to the new reports served by Mr. Blott.
[9] On September 24, 2018, plaintiff’s counsel cancelled the agreed-upon defence medical assessments, advising that Mr. Steinberg was medically unable to travel. In October 2018, plaintiff’s counsel advised defence counsel that a “contested motion to compel Mr. Steinberg to attend defence medical assessments cannot be avoided.” That was followed by a note from the plaintiff’s family physician advising, “Presently patient is feeling unwell and is unable to do extended travel (no flying, no long drives).”
[10] The action had been listed for trial during the November 2018 jury sittings. On November 15, 2018, Regional Senior Justice Warkentin granted the defence leave to bring this motion, returnable January 10, 2019. A case management conference was also scheduled for that day. The trial was adjourned to the May 2019 jury sittings.
[11] The motion and case management conference were held on January 10, 2019.
[12] On the motion, in addition to the above note from his family physician, Mr. Steinberg filed a report dated November 27, 2018, from his chiropractor, Dr. Brian Schroeder, who wrote:
Because these structures are highly influenced by movement and atmospheric pressure, I believe that it is unsafe for Mr. Steinberg to either be driven or fly to Toronto. The increased pressure inside an aircraft in flight can cause severe pressure on the cerebellar tonsils, leading to negative physiological reactions in breathing and heart rate due to interference with the mid brain and vagus nerve.
Driving is even more risky, given the length of time and the number of kilometres involved, the odds of being in some sort of MVA are high. Also, it is very hard on Mr. Steinberg to have to sit in an upright position for that many hours.
[13] Mr. Steinberg also filed a note dated December 10, 2018, from his kinesiologist that Mr. Steinberg “…cannot drive for extended periods and when his head pressure worsens he would have to get off the road for extended periods to recover… such an effort would have serious deleterious effects on Mr. Steinberg.”
[14] In response, the defence filed a report dated November 29, 2018, from the defence neuropsychologist who had examined Mr. Steinberg in 2016. He was asked to comment on Mr. Steinberg’s ability to travel and concluded, “I find no evidence whatsoever that he would be unable to travel to Toronto to attend an examination.”
[15] The defence also filed a report dated November 14, 2018, from the defense orthopedic surgeon who had examined Mr. Steinberg in 2016. He concluded:
I did not identify, at the time of my evaluation previously, February 25, 2016, nor have I been provided with any current evidence of medical rationale or justification for inability to travel. I would state specifically that there us no contraindication for travel by the plaintiff Mr. Steinberg, to come to Toronto by either car, plane or train.
[16] During the hearing of the motion on January 10, 2019, counsel agreed that Mr. Steinberg should be assessed by a jointly retained orthopedic surgeon in Thunder Bay on the issue of whether Mr. Steinberg was medically able to travel to Toronto, whether by air, train or auto, for defence medical assessments. They agreed that defence counsel would forthwith make inquiries to identify an orthopedic surgeon for this purpose. However, following a break during the hearing of the motion, plaintiff’s counsel submitted that the assessment of Mr. Steinberg’s ability to travel should be carried out by a neurosurgeon rather than an orthopedic surgeon because the neurosurgeon might be better able to do the assessment in the context of the concerns raised by Mr. Steinberg’s chiropractor as set out above.
[17] I held that an orthopedic surgeon presented with a medical brief containing the chiropractor’s observations and opinions would be in a position to inform counsel as to whether he could opine on Mr. Steinberg’s ability to travel or whether that issue required the expertise of a neurosurgeon.
[18] I directed that defence counsel attempt to locate an orthopedic surgeon, acceptable to both sides, to be jointly retained on the travel issue. The motion was adjourned.
[19] On April 10, 2019, the case management conference was continued. Defence counsel advised that he had been unable to locate an orthopedic surgeon to conduct an assessment on behalf of both parties on the question of Mr. Steinberg’s ability to travel. However, plaintiff’s counsel advised that she had spoken to a Thunder Bay neurosurgeon, Dr. Graham Marchuk, who was prepared to conduct an assessment on the travel issue. An order was made, on consent, that Dr. Marchuk would be jointly retained by the parties and that his costs for the assessment would be shared equally by the parties. The parties were to prepare a joint medical brief and a letter of instruction for Dr. Marchuk.
[20] At the conference, the parties also agreed that Mr. Steinberg would attend a further examination for discovery.
[21] Further, the parties agreed that in view of these developments and the fact that further defence medicals were required, wherever Mr. Steinberg might be examined, the action would be struck from the trial list.
[22] Subsequent to the April 20, 2019 conference, Mr. Blott brought a motion to be removed as solicitor of record for Mr. Steinberg. Justice Newton heard the motion and granted the order.
[23] At a conference on September 9, 2019, Mr. Steinberg who was now unrepresented, confirmed that he remained willing to meet with Dr. Marchuk for an assessment of his ability to travel to Toronto for defence medicals.
[24] On November 6, 2019, Mr. Steinberg attended on Dr. Marchuk for an assessment of his ability to travel.
[25] Dr. Marchuk delivered a detailed report, dated November 6, 2019.
[26] Dr. Marchuk took a history from Mr. Steinberg, did a physical examination, undertook a review of Mr. Steinberg’s relevant neuroimaging studies and the accompanying reports from those studies, including his most recently updated cervical MR imaging study from January 18, 2019. Dr. Marchuk expressly addressed the report from Mr. Steinberg’s chiropractor, Dr. Brian Schroeder, referred to above.
[27] In his report, Dr. Marchuk stated:
In summary, and as pertains to the specific question I have been asked to address in this report. I can see no reason, from a neurosurgical perspective, that Mr. Steinberg cannot travel on an airplane, or train, or automobile. I have read the report which has been provided by Dr. Brian Schroeder, in particular the segment that reads: “This has led to cerebellar tonsils forming, which allows part of the cerebellum, to protrude inferiorly into the spinal canal. This in turn interferes with the normal circulation of cerebral spinal fluid through the spinal canal” (cf. paragraph 3 of that report). None of the imaging studies which Mr. Steinberg has had performed here in Thunder Bay (and which I have directly reviewed) demonstrates any inferior protrusion of the cerebellar tonsils, nor is there any evidence of the type of foramen magnum crowding which is typically seen in a symptomatic Chiari. It should be mentioned that even those patients who meet the clinical and imaging criteria for Type 1 Chiari malformation are able to travel long distances without any significant exacerbation of their symptoms. Such patients do no have their travel restricted for medical reasons. It should furthermore be mentioned that Mr. Steinberg has successfully traveled long distance on multiple instances since the date of his accident, and no “negative physiological reactions in breathing and heart rate due to interference with the midbrain and vagus nerve” (cf. Dr. Schroeder’s correspondence , paragraph 4) have ever occurred. It may be true that Mr. Steinberg does experience some subjective increase in symptoms which he feels limits his ability to travel (and that is a separate matter entirely), but I can find no evidence of on the basis of the neuroimaging studies which I have directly reviewed, nor on the basis of the symptoms of which Mr. Steinberg presently complains, which would prevent Mr. Steinberg from travelling by some means longer distances (be it train, plane, or automobile). It should be safe for him to do so from a neurosurgical perspective.
[28] Mr. Steinberg retained Mr. Paul DeLuca of Masgras Professional Corporation. Case management conferences were held in April 24 and June 16, 2020. At the June 16, 2020, conference it was agreed that Mr. DeLuca would ask Dr. Marchuk a question regarding imagery and that within 14 days of Dr. Marchuk’s response, the parties would file written submissions to conclude the motion.
[29] Nothing transpired in the court file until a case management conference on October 4, 2021. At the conference, Mr. Kevin Wylie of the Masgras firm advised that Mr. DeLuca had passed away a year previous. At Mr. Wylie’s request, the case management conference was adjourned to October 21, 2021. Mr. Steinberg was now represented by Mr. Mark Stoiko of the Masgras firm. Mr. Stoiko advised that Mr. Wylie had left the Masgras firm. The case management conference was adjourned to October 27, 2021. At that final conference, the parties were directed to serve and file written submissions on the motion by November 12, 2021.
[30] Meanwhile, Mr. Steinberg filed an affidavit sworn October 15, 2021. He deposed that since the accident he had been suffering from severe headaches which occurred daily on an unpredictable basis. He said that he also suffers from vertigo, radiating pain, numbness, tingling, neck stiffness, which was exacerbated by driving, shoulder pain, chest pain, numbness of the lower extremities and sleep apnea which negatively impacted his ability to drive. (I note that Dr. Marchuk referred to a number of these subjective symptoms in his medical report of November 6, 2019).
[31] He acknowledged driving to Calgary and regularly to Minnesota in 2019, for chiropractic treatments. He said he could do this, with respect to his travel to Calgary, by using a truck and camper vehicle and napping frequently when symptoms manifested themselves, and that on his trips to Minnesota he was frequently accompanied by a travel companion who, if necessary, could take over driving.
[32] He said that he was worried about the increased risk of COVID-19 if he travelled to Toronto and that he suffered from comorbidities that put him at greater risk.
[33] As of November 12, 2021, the defence filed written submissions in accordance with my direction of October 27, 2021.
[34] However, on November 12, 2021, the plaintiff filed an affidavit sworn November 11, 2021, from Mr. Ryan Turner, a lawyer with the Masgras firm, focused almost entirely on the issue of COVID-19, including significant material referencing COVID issues that had not heretofore been in evidence or canvassed at any of the nine case management conference that had been held since January 2019.
[35] The plaintiff also filed a supplementary factum, which focused almost exclusively on COVID issues.
[36] The defence objected to the affidavit of Mr. Turner and the supplementary factum, as not being in compliance with my direction regarding written submissions. The plaintiff responded that the plaintiff’s documents may have been an irregularity pursuant to Rule 2.01, but that they should not be considered a nullity.
The Law
[37] In Nutley v. Kuper, 2008, CanLII 35692 (Ont.S.C.), the defence moved, pursuant to s.105(2) of the Courts of Justice Act and Rule 33 for an order requiring the plaintiff, who resided in a rural area near Thunder Bay, to travel to Toronto for a defence psychiatric assessment and an assessment by a physiatrist. The plaintiff, who was 46, had been injured in a motor vehicle accident. She alleged that as a result of the accident she suffered injury to her brain and to her cervical thoracic and lumbar spine and that she suffered from chronic pain. She was worried that travel to Toronto would aggravate her pain and take her away from her work and family.
[38] At para. 11 of Nutley, Justice Pierce set out the following principles from the jurisprudence concerning defence medical examinations in tort proceedings:
- there is no general rule as to the place of examination;
- prima facie, the defendant has the right to select the physician to perform the examination;
- as the defendant’s medical expert may well be the only medical witness for the defence at trial, the court should not unreasonably interfere with the choice of medical assessor where the assessment is not unreasonably convenient;
- the place of examination should be determined by what is convenient and just.
[39] Justice Pierce ordered that the plaintiff attend the defence medical examinations in Toronto. She observed that it is common for Thunder Bay residents to travel to Toronto for business or medical appointments and return either the same day, or within a day.
[40] I adopt the statement of principles in Nutley and the observations of Justice Pierce as to travel between Thunder Bay and Toronto.
Discussion
[41] I leave aside, for the moment, a discussion of the COVID-19 issues that the plaintiff has now raised and I direct my remarks to the question on which this motion has been focused since Mr. Steinberg’s refusal to attend defence medical examinations scheduled for November 2018: namely, is he medically unable to travel to Toronto?
[42] I am satisfied that Mr. Steinberg is medically able to travel to the medical examinations that the defence has scheduled – a psychiatric examination by Dr. Lipson on May 16, 2022 at 1:30 pm, a psychiatric examination by Dr. Waisman on May 18, 2022 at 12:00 pm, both in Markham, and an examination by a neuropsychologist, to be retained and coordinated with the other two examinations.
[43] These examinations are appropriate to respond to the 17 expert reports which were served by the plaintiff after Mr. Blott assumed carriage of the file in 2017, and after the 2016 defence reports had been served. Trial fairness requires that the defence be allowed to respond to the plaintiff’s new reports which had not been contemplated when the 2016 defence medical assessments were conducted.
[44] I find the opinion of Dr. Marchuk in his report of November 6, 2019, to be compelling. He is clear that, from a neurosurgical perspective, Mr. Steinberg is safely able to travel by airplane, train and automobile for long distances. His opinion is supported by a psychologist, Dr. Young in his report on the travel issue, dated November 29, 2018, and by Dr. Marks, an orthopedic surgeon, in his report on the travel issue, dated November 24, 2018.
[45] Dr. Marchuk expressly reviewed the November 27, 2018, report of Dr. Schroeder, Mr. Steinberg’s chiropractor in Thunder Bay, who referred to the formation of cerebellar tonsils, which Dr. Schroeder said allowed parts of the cerebellum to protrude into the spinal canal thereby interfering with the normal circulation of the cerebral spinal fluid through the spinal cord. Dr. Marchuk, whose scope of practice as a neurosurgeon would enable him to opine on this issue, categorically stated that none of the imaging studies which he had reviewed, including an updated cervical MR imagery study from January 18, 2019, (after Dr. Schroeder’s report) demonstrated any protrusion of the cerebellar tonsils.
[46] It is significant to note that it was plaintiff’s counsel who had first spoken to Dr. Marchuk and secured his agreement to conduct an independent, jointly retained assessment and that it was plaintiff’s counsel who submitted that a neurosurgeon was best able to assess Mr. Steinberg’s ability to travel in the context of the concerns raised by Mr. Steinberg’s chiropractor, Dr. Schroeder.
[47] After his accident of October 29, 2011, and before the motion was initially heard on January 10, 2019, Mr. Steinberg had been involved in extensive long distance travel. In 2014, he travelled to Hawaii for three weeks. In July 2014, he attended in Toronto for accident benefits insurer examinations. Between July 2016 and June 2017, Mr. Steinberg on at least six separate occasions drove his own vehicle to Southern Ontario, New York State and Calgary to attend medical assessments that he, his doctor or his lawyer had arranged. On four of the six trips he drove by himself.
[48] It is also significant that after the initial hearing of the motion on January 10, 2019, at which the plaintiff claimed that he was medically unable to travel to Toronto for defence medical examinations, he in fact continued to travel. In May 2019, he drove from Thunder Bay to Calgary. Between May and August 2019, he attended upon an Alberta chiropractor more than a dozen times. While in Alberta for two months, he travelled to Fort Saskatchewan, Edmonton, Calgary, Red Deer, Drayton Valley and Sundre. His trip back to Thunder Bay was made within three days. Mr. Steinberg said that he drove back to Thunder Bay “the whole way”. (I take judicial notice of the fact that that Calgary is approximately a 2,000 kilometre drive from Thunder Bay and that, in comparison, Toronto is approximately a 1,400 kilometre drive).
[49] Between August 2019 and November 2019, Mr. Steinberg also drove from Thunder Bay to Hermantown, Minnesota, a one way trip of approximately 280 kilometres to attend for chiropractic treatments on nine separate occasions. He drove on three of the trips by himself when nobody was available to accompany him. The last of the trips to Hermantown, Minnesota was on November 14, 2019, eight days after Mr. Steinberg had been assessed by Dr. Marchuk.
[50] Mr. Steinberg’s many trips, both before and after the January 10, 2019 hearing date of the motion, provide strong empirical evidence supporting the medical opinions of Dr. Marchuk, Dr. Young and Dr. Marks that Mr. Steinberg has the capacity to travel substantial distances.
[51] I therefore conclude that Mr. Steinberg should be required to attend the defence medical examinations that have been scheduled in Markham on May 16 and May 18, 2022, and on a neuropsychological examination, to be co-ordinated with the examinations by Dr. Lipson and Dr. Waisman.
[52] I turn now to the COVID-19 issue addressed in the affidavit of Mr. Turner sworn November 11, 2021, served on November 12, 2021, the day that written submissions were due.
[53] Although Mr. Steinberg had mentioned in one of the paragraphs of his October 15, 2021, affidavit that he had a concern about an increased risk of COVID-19 if he travelled to Toronto, this had not heretofore been the focus of his resistance to travel to Toronto for defence medical examinations.
[54] The evidence set out in Mr. Turner’s affidavit of November 11, 2021, is focused solely on the issue of COVID-19 and is much more extensive then simply Mr. Steinberg’s expression of concern.
[55] Because this COVID-19 related material was served on defence counsel on November 12, 2021, the defendant had no opportunity to respond to these new allegations. These allegations seek to significantly shift the ground upon which the parties had been proceeding since January 10, 2019 and over the course of nine case management conferences. As a complicating factor and as counsel are aware, my retirement as a judge is only days away, which precludes adjourning this motion further, to allow the defence to file responding material, then hearing further argument and rendering a decision.
[56] Because of the time and effort that has been spent by the parties, and the court, over the past three years since Mr. Steinberg’s refusal in September 2018 to travel for defence assessments, the issue of his ability to travel should be determined now.
[57] As I have indicated, I am satisfied on the evidence that Mr. Steinberg should be required to attend the scheduled defence examinations in Markham in May 2022.
[58] However, I do not believe that I can simply dismiss, without more, the plaintiff’s allegations regarding COVID-19. The pandemic has had an extraordinary, ever-evolving impact on society over the past 22 months.
[59] In my view, fairness requires that Mr. Steinberg should have the opportunity to have his allegations concerning COVID-19 and travel to Toronto/Markham considered, notwithstanding that they have been made at the last hour, but they should be considered in the context of the right of the defendant to fully respond to those allegations and in the context that the issue of whether he is medically able to travel has now been determined on this motion.
[60] Therefore, an order shall issue that Mr. Steinberg shall attend, in person, at the defence medical examinations in Toronto/Markham, as detailed above. However, this order is without prejudice to Mr. Steinberg’s right to bring a motion on the grounds that, because of COVID-19, the order requiring his attendance in person should be modified or set aside.
Costs
[61] The defendant requests costs of this motion in the sum of $24,365 for fees based on counsel’s actual hourly rates, exclusive of HST.
[62] The plaintiff submits that whatever party is successful, that party should receive nothing for costs or, in the alternative, the successful party should be awarded minimal costs, suggested at $1,000 or $1,500.
[63] The thrust of the plaintiff’s costs submissions relate to the COVID-19 issues that were the subject of his materials filed on November 12, 2021.
[64] However, by far the time expended by counsel for each of the parties leading up to November 12, 2021, dealt with Mr. Steinberg’s claim that he was unable to travel. On that question, the defence was successful. In my view, the defendant, as the successful party, is entitled to costs in the usual course.
[65] Counsel for the defendant submits that there is no reason why the defendant’s fee recovery should be reduced from counsel’s actual rate just because the defendant has negotiated a favourable rate with counsel, so long as the total of the indemnity does not exceed the fees claimed, citing Geographic Resources Integrated Data Solutions Limited v. Peterson, 2013 ONSC 1041.
[66] Counsel for the defendant, Mr. Demeo, shows docketed time of $22,475, for both actual and partial indemnity fees. This is based on an hourly rate of $290. Mr. Demeo has 39 years of experience. An actual hourly rate $290 for counsel with Mr. Demeo’s experience is more than reasonable in the Northwest Region.
[67] However, I do not agree that the defendant should be awarded costs at counsel’s actual hourly rates.
[68] First, there is no basis in law, in the circumstance of this case, to award costs calculated on an actual or substantial indemnity scale. Costs at those rates are to be awarded only in exceptional circumstances.
[69] Second, as stated in Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) at para. 26:
The objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.
Further, at para. 36:
In my view, the granting of an award of costs said to be on a partial indemnity basis that is virtually the same as an award on a substantial indemnity basis constitutes an error in principle in the exercise of the motions judge’s discretion, particularly when the judge rejected a claim for a substantial indemnity award.
[70] Although the defendant seeks costs for time expended the motion, he also includes costs for the time expended on all nine case conferences, as well as for preparation of three case conference briefs, for correspondence and calls with opposing counsel, for correspondence and calls with medical assessors and for attendance on the motion on November 15, 2018, before Regional Senior Justice Warkentin. There is no evidence before me that costs of November 15, 2018, were reserved to this hearing. Costs were not requested at the conferences and no costs orders were made after each conference. These conference costs are more appropriately considered in the costs of the action as a whole.
[71] There appears to have been approximately 59 hours docketed by defence counsel in connection with the motion before me. Those hours are more than an unsuccessful party could reasonably expect to be required to indemnify a successful party.
[72] In my view, having regard to the factors which I have mentioned and having regard to the other factors set out in Rule 57, a fair and reasonable award for costs for this motion would be $7,500 for fees, plus $261.44 for disbursements, plus applicable HST on those amounts and it is so ordered.
“original signed by”
The Honourable Justice D. C. Shaw
Released: November 26, 2021
COURT FILE NO.: CV-13-0024-00
DATE: 2021-11-26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
RUDOLF STEINBERG, JAKOB STEINBERG and AMANDA STEINBERG minors by their Litigation Guardian, RUDOLF STEINBERG
Plaintiffs
- and –
PAMELA ADDERELY
Defendant
DECISION ON MOTION
Shaw J.
Released: November 26, 2021
/cjj