Court File and Parties

COURT FILE NO.: CV-15-538755 DATE: March 28, 2022

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tennisha Pulford v. Karen Clarke, The Corporation of the City of Toronto and The Dominion of Canada General Insurance Company and Fowler Construction Company Limited;

BEFORE: ASSOCIATE JUSTICE C. WIEBE

COUNSEL: David Truman for Fowler Construction Company Limited and The Corporation of the City of Toronto; Ashu Ismail for Tennisha Pulford.

HEARD: March 23, 2022.

REASONS FOR DECISION

[1] The defendants, Fowler Construction Company Limited (“Fowler”) and The Corporation of the City of Toronto (“Toronto”) bring this motion for an order under Rule 33.01 requiring the plaintiff to attend and participate in a defence neuropsychological examination by Dr. Jean Saint-Cyr on August 25 and 26, 2022 starting each day at 9 a.m. with the location being Suite 380, 340 College Street, Toronto. The plaintiff opposes the motion.

[2] The underlying action concerns a motor vehicle accident that happened on February 9, 2014. The pleadings closed; productions and discoveries were done; and the action was set down for trial on September 21, 2020. It is undisputed that the plaintiff asserts that she suffered cognitive, psychological and neurological damage due to the accident, including traumatic brain injury, cognitive impairment, chronic pain, sleep disturbance and loss of enjoyment of life.

[3] The plaintiff has delivered four expert reports: the neuropsychiatric report of Dr. R. Van Reekum dated May 5, 2019; the chronic pain report of Dr. Stephen Brown dated October 10, 2019; the neuropsychological report of psychologists, Drs. Irena Valentin and Ken Colosimo, dated December 11, 2019; and the physiatrist neuromusculoskeletal report of Dr. Milan Unarket dated June 9, 2020. The moving defendants have delivered two expert reports: a psychiatric assessment by Dr. Lawrie Rezneck dated December 22, 2020; and an orthopedic assessment by Dr. Jeremie S. Larouche dated March 10, 2021.

[4] Under section 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43, defendants have the right to one defence medical examination, but must get a court order for further defence medical examinations. The order is discretionary.

[5] Dr. Jean Saint-Cyr appears to be a neuropsychologist, namely the same kind of specialist as Drs. Valentin and Colosimo. There was no affidavit or even a letter from Dr. Saint-Cyr, but these credentials were not disputed. The motion record contains the affidavit of the lawyer with carriage, Robert McCartney. He explained that the moving defendants required this medical examination essentially to respond to evidence of Drs. Valentin, Colosimo and Unarket.

[6] In the responding motion record was the affidavit of Peter Murray, one of the lawyers for the plaintiff. Essentially, Mr. Murry took the view that this motion was to get an expert opinion that would corroborate a defective opinion given by Dr. Reznek, which is not an acceptable basis for such a motion. In argument, Ms. Ismail also argued that there was simply no evidence to support the need for this motion.

[7] Having considered the written material and the oral arguments, I have decided to grant the motion for the following reasons:

• Relevant test: In the leading case in this area, Bonello v. Taylor, [2010] ONSC 5723 at paragraphs 15 and 16, Justice Brown summarized the issues to be considered in exercising the discretion on such a motion. In paragraph 16(iii) His Honour stated that where the plaintiff has submitted an expert report from a specialist based on an examination of the plaintiff, “trial fairness” should be the guiding principle. He went on the say that in that event “courts should be loath to deny the defence a fair opportunity to respond with expert evidence from the same specialty based on an assessment of the plaintiff.” This is what is often called the practice of “matching reports” from experts in the same specialty.

• Matching report needed: In this case, the plaintiff has delivered four reports, one of which is the neuropsychological report of psychologists, Drs. Valentin and Colosimo. The moving defendants have delivered two expert reports, one which is a psychiatric assessment by Dr. Rezneck. There is no issue that, while the fields of psychiatry and psychology overlap in many ways, they are not the same. That includes the fields of neuropsychology and neuropsychiatry. As was pointed out in Mundinger v. Ashton, 2019 ONSC 7161 at paragraph 65, psychologists are not “physicians” while psychiatrists are. In Van Dijk-Alac v. Aviva General Insurance Company, 2021 ONSC 1344 at paragraph 51 Justice G. D. Lemon accepted that “the psychiatric field and the neuropsychological field cover different components of medicine.” The methods and approaches taken by the two specialties are different. In his letter dated September 29, 2021, attached to the McCartney affidavit, Dr. Reznek himself explained the different tests he and other psychiatrists use as compared with the many other and more extensive tests neuropsychologists use.

  Therefore, I find that the moving defendants do not have a “matching report” to respond to the report of Drs. Valentin and Colosimo. Indeed, as suggested by Mr. Truman, the moving defendants do not have a matching report for the report of the physiatrist, Dr. Unarket.

• Dr. Reznek’s opinion did not cover both areas: Ms. Ismail maintained that this demarcation between neuropsychiatry and neuropsychology was essentially in this case made nonexistent. The argument was that Dr. Reznek gave an opinion that was sweeping and definitive on the issue of the plaintiff’s cognitive impairment and brain injury. Much was made of the statements Dr. Reznek made in his report that he “provided an independent neuropsychiatric assessment,” and that he found that Ms. Pulford’s cognitive disorder resulting from the accident “was now resolved.” The argument was that Dr. Reznek purported to address all of the issues that Dr. Saint-Cyr will be addressing.

  I disagree. This evidence does not show that Dr. Reznek wandered into the field of neuropsychology assessment as he has described it. He just gave an opinion based on the neuropsychiatric assessment he made.

• Corroboration not the purpose: Stemming from this last point, Ms. Ismail also argued that the real cause of this request for a defence medical assessment by Dr. Saint-Cyr was the concern of the moving defendants that Dr. Reznek’s opinion was now subject to attack. Mr. Truman admitted that, due to an oversight, Dr. Reznik was not given the report of Drs. Valentin and Colosimo. The argument was that the moving defendants are simply trying to corroborate Dr. Reznek’s “deficient” opinion as to the state of the plaintiff’s cognitive disorder. Corroborating an existing expert opinion does not justify a defence medical assessment, as indicated in Bonello paragraph 16(i).

  However, I do not agree that corroboration is the reason for this motion. While corroboration may result from the Dr. Saint-Cyr assessment, I am satisfied that the primary reason for this motion is the matching of expert opinions as referenced in Bonello. Neuropsychology is a separate field from neuropsychiatry, and the moving defendants do not have a matching report for the report of Drs. Valentin and Colosimo.

• Evidence sufficiency: Ms. Ismail made a final and strong oral argument about evidence. As stated in Bonello paragraph 16(v), the motion must have sufficient evidence of the need for a further medical examination. In Nelson v. Thiruchelvam, [2005] O.J. No. 743 at paragraphs 21 and 22 Master Haberman stated that even where the need for matching reports has been demonstrated, there is a need to show that the examination is necessary. She described what that evidence would include: the nature of the specialty of the proposed examiner; the type of evidence the examiner can and will provide; the need for the examination in the context of the injuries and the evidence already tendered.

  In this motion, there is remarkably little such evidence. There is only the disclosure of Dr. Saint-Cyr’s professional title of neuropsychologist, which is not disputed. But there is no curriculum vitae for Dr. Saint-Cyr and not affidavit, statement or letter from the doctor as to what the examination will entail, what evidence is expected and why it is necessary in this case. In his letter dated September 29, 2021, Dr. Reznek simply described the differences in the testing he as a neuropsychiatrist would do and did and the testing a neuropsychologist would do. This is a general statement and not the kind of detailed evidence required on such a motion. This deficiency caused me serious concern. Nevertheless, as indicated in Bonello at paragraph 16(v) the question of evidence sufficiency is a matter of discretion. In the end I have decided that the need for the examination has been established as a matter of trial fairness as indicated above, and that this need outweighs the deficiency in the evidence of the moving defendants.

• Trial not delayed: There is another consideration. At this point, although the action was set down for trial eighteen months ago, no pretrial conference or trial has been scheduled. Therefore, the proposed examination should not delay the resolution of this case. That proposition was not challenged.

[8] I, therefore, grant the motion.

[9] As to costs, the moving defendants filed a costs outline showing $3,022.75 in actual costs, $2,720.47 in substantial indemnity costs, and $1,813.65 in partial indemnity costs. The plaintiff filed a costs outline that showed $10,482.16 in full indemnity costs and $6,918.23 in partial indemnity costs.

[10] I have decided to make a ruling on costs based on this outcome without further submissions. The moving defendants, as the successful party, would usually get an award of costs. I am not prepared to do so in this case due to the significant deficiency in the evidence filed by the moving defendants in this motion. This motion was a close call as a result. I have decided as a result to make no award of costs. I so order.

DATE: March 28, 2022

ASSOCIATE JUSTICE C. WIEBE