Court File and Parties

COURT FILE NO.: CV-13-115822

MOTION HEARD: 20211216

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Teresa Rocca, Plaintiff

AND:

6131646 Canada Inc. carrying on business as Dave and Buster’s et al, Defendants

BEFORE: Associate Justice Jolley

COUNSEL: Andrew Steinman, counsel for the moving party defendant Bradley Frederick Walker carrying on business as Proturf Landscaping

Alexander Voudouris, counsel for the responding party plaintiff

HEARD: 16 December 2021

REASONS FOR DECISION

Overview

[1] The defendant Proturf Landscaping brings this motion pursuant to section 105 of the Courts of Justice Act and Rule 33.02 of the Rules of Civil Procedure for an order compelling the plaintiff to attend a medical examination with a physiatrist, Dr. Benjamin Clark, on 1 February 2022.

[2] The plaintiff alleges that she suffers serious and permanent physical, psychological and cognitive impairments as a result of a fall that occurred in August 2011.

[3] The plaintiff has produced three medical reports upon which she relies: (a) a medicolegal report by Dr. Gerber, psychiatrist dated 1 September 2016; (b) an orthopedic consultation report by Dr. Ogilvie-Harris, orthopaedic surgeon dated 9 September 2016; and (c) a medicolegal report by Dr. Mailis, physiatrist dated 30 September 2016.

[4] Dr. Gerber diagnosed the plaintiff with ongoing pain symptoms, somatic symptom disorder with predominant pain, major depressive disorder and panic disorder. Dr. Ogilvie-Harris diagnosed the plaintiff with chronic pain syndrome and opined that she has suffered a permanent and serious impairment of important bodily functions. Dr. Mailis diagnosed with the plaintiff with multiple psychological and physical impairments including shoulder pain, numbness, non-dermatomal somatosensory deficit, major depressive disorder and somatic symptom disorder.

[5] The plaintiff has already attended three defence medicals at the request of this defendant. She was seen by Dr. Marks, an orthopaedic surgeon on 6 August 2020, by Dr. Hines, a psychiatrist on 22 September 2020 and, more recently, by Dr. Gladestone, a neurologist.

[6] The defendant now wishes to have the plaintiff examined by Dr. Clark, who, it says, is qualified to speak about the physical impairments which the plaintiff claims to have arisen as a result of the accident.

[7] It argues that leave should be granted to compel this examination to ensure trial fairness, to ensure the trial is determined on its merits and to level the playing field so that the defendant has an adequate opportunity to meet the plaintiff’s case (Galea v Firsker 2013 ONSC 1666; Bhimji Khimji v Dhanani 2004 CanLII 12037 (ON CA), [2004] O.J. No. 320 (C.A.). It further argues that there is no prejudice to the plaintiff, even though this is a 2013 action and has been set down for trial, as there is no pretrial or trial date and the examination is scheduled for 1 February 2022.

[8] The defendant rejects any contention that it is onerous for the plaintiff to attend in person during the pandemic, but has offered no evidence about the state of the office, the precautions in place or the length and extent of the examination that one might expect to see in support of that proposition.

[9] The defendant bears the onus of providing sufficient evidence to persuade the court of the need for this further examination. As part of that obligation, it must file evidence from someone with knowledge of the case to explain the unfairness it alleges will befall if the examination is not permitted. (Bonello v Taylor 2010 ONSC 5723).

[10] Although this is not in the evidence before me, the defendant argues that none of the defence doctors the plaintiff has seen to date can address the issues raised by Dr. Mailis in her report (the “Mailis report”). The Mailis report was also not before me but counsel agreed that reference could be made to certain passages during argument.

[11] Among the passages read was Dr. Mailis’ conclusion that the plaintiff suffers from chronic pain and shows a “striking widespread right hemibody sensory deficit”. The defendant is of the view that this conclusion from someone who describes herself as “the world’s expert” on the subject will seriously prejudice its case in the eyes of a jury if it is not able to provide a responding report.

What Evidence Is Before Me

[12] What there is before me is substantial and substantive commentary from Dr. Marks about almost every aspect of the Mailis report.

[13] Dr. Marks examined the plaintiff on 6 August 2020. Based on his examination, he concluded in a 93 page report that the plaintiff suffers from uncomplicated soft tissue strains without evidence of orthopaedic sequelae. He found no objective evidence of ongoing, accident-related impairment. He conceded some reduction in range of motion due to pain, but found this did not constitute impairment. Further, the plaintiff’s “ongoing, subjective reports of pain notwithstanding, the results of the physical examination failed to demonstrate any major, consistently reproducible and corroborative residual objective signs of musculoskeletal impairment. As such, the plaintiff’s reported complaints do not correlate with my objective findings or lack thereof. “

[14] He disagreed with most aspects of Dr. Mailis’ report. In addition to disagreeing with Dr. Mailis’ conclusions, Dr. Marks commented negatively on the completeness of her examination of the plaintiff and spent a number of pages of his report detailing the examinations that he believes Dr. Mailis should have undertaken before coming to her conclusions as a physiatrist. He also disagreed with her descriptions of the plaintiff’s physical state.

[15] I note but a few examples taken from Dr. Marks’ report:

(a) he quotes Dr. Mailis as stating: “I noticed complete immobility and lack of swing across the right arm” and then states “I did not note such observation during my more recent evaluation of August 6, 2020.”;

(b) he similarly notes Dr. Mailis’ reference to the right shoulder and her notation “Feels heavy and going out of the socket.” He responds that, “Dr. Mailis does not provide a complete and thorough examination considered necessary to address said complaint. I note at the time of my evaluation that Ms. Rocca did not have any complaints of instability of the shoulder.”;

(c) concerning Dr. Mailis’ conclusion that the plaintiff’s “hemisensory deficit is classic for non-dermatomal somatosensory deficit (NDSD)”, Dr. Marks opines that “Dr. Mailis, once again, appears to be dependent on subjective descriptions in the absence of a complete and thorough, meticulous examination considered mandatory by anyone opining on a musculoskeletal complaint.”;

(d) he states “I do make specific comments with regards to loss of sensation on one half of the body. There is no lesion that has been identified on investigation thus far or examination to explain her symptoms. In this regard, it would be my recommendation that the patient be assessed by an academic University based neurologist.”;

(e) he opines that Dr. Mailis’ reference to fibromyalgia is “not appropriate in this setting”; and

(f) he describes Dr. Mailis’ conclusion that associated central nervous system changes perpetuate and maintain [the plaintiff’s] pain disability as “supposition without proof” and states that “the literature does not support these opinions”.

[16] The defendant argued that it had not had the opportunity to comment on chronic pain. Dr. Marks comments extensively on chronic pain in his report, referring to an article entitled “Diagnostic judgment: Chronic pain syndrome, pain disorder, and malingering”. He disagrees with the concept of “central sensitization", stating “research has demonstrated there are no accepted methods for determining whether symptoms of chronic pain can be attributed to central sensitization, nor has it ever been established in relation to soft tissue strain or arthritic pain. Further, if the plaintiff sustained soft tissue strain, the model is not applicable to them as it is based upon chronic severe intractable nerve pain.” He concludes on the point that “society would otherwise be burdened with this phenomenon including children and athletes suffering from central sensitization at astounding rates and this would be a public health crisis but this is not the case.”

[17] Dr. Marks expressed no hesitation in disagreeing with Dr. Mailis’ conclusion that the plaintiff sustained serious and permanent impairment of multiple psychological and interim physical functions, stating “I do not agree with these opinions from a musculoskeletal perspective provided by Dr. Mailis. I find this report very concerning .…”

What Evidence is Not Before Me

[18] There is no evidence of any limitations on Dr. Marks’ ability to opine on the issues he did, including those raised by Dr. Mailis. There is no evidence from the defendant that Dr. Marks’ assessment and commentary concerning Dr. Mailis should not be relied on. Dr. Marks certainly believed he was competent to opine on the Mailis report after having reviewed it and examined the plaintiff. In his report, Dr. Marks noted that he would defer to the opinion of the psychiatrist and the neurologist, but he did not mention any deferral to a physiatrist and, to the contrary, provided extensive rebuttal to the Mailis report. As noted, Dr. Marks commented on Dr. Mailis’ methodology of assessment, her findings, her diagnosis and her conclusions on the plaintiff’s prognosis.

[19] Further, there is no evidence before me from Dr. Clark – or anyone else – concerning what sort of an examination he would undertake and how that would differ from that done by Dr. Marks. The only information I have is from a lawyer who deposed that “a Physiatrist specialises on restoring optimal functions to people with injuries to the muscles, bones, tissue, and nervous systems which an Orthopedic Surgeon specializes in the repair of bones, joints, and ligaments.” While this may be, and while I was presented with case law noting the differences between an orthopaedic examination and a physiatry examination, Dr. Marks found himself more than capable of addressing the Mailis report. He signed the Acknowledgement of Expert’s Duty on 6 August 2020 acknowledging that it was his duty to “provide opinion evidence that is related only to matters that are within my area of expertise”.

[20] Dr. Marks’ extensive commentary both on the plaintiff’s condition and on the Mailis report distinguish this case on the facts from Rysyk v Booth Fisheries Canadian Co. Ltd. (1971) 1970 CanLII 510 (ON CA), 1 O.R. 123 (C.A.) where it was held that the plaintiff’s evidence “would not be subjected to what is probably the best test and to a very great extent go unchallenged”. There is no evidence before me that Dr. Marks’ test is not “probably the best test” or any evidence about what shortcomings exist in the testing and commentary of Dr. Marks, what tests Dr. Clark would perform that have not been done or why Dr. Clark’s test would be the “best test” of the plaintiff’s evidence. Her evidence seems to be well-tested in the defence medicals to date.

Conclusion

[21] While the defendant argued that these defence medical examinations were “generally” granted, the law is clear that there must be sufficient evidence to persuade the court that a further examination should be ordered.

[22] On the record before me, there is insufficient evidence on which I would conclude that the defendant has not had an adequate opportunity to meet the plaintiff’s case or that this further examination is required for the defendant to receive a fair trial.

[23] The motion is dismissed.

[24] The parties agreed that the amount of $3,250 is a fair and reasonable sum for the unsuccessful party to pay. The defendant shall pay this amount to the plaintiff within 30 days.

Associate Justice Jolley

Date: 22 December 2021