LIFE ASSURANCE COMPANY, 2022 ONSC 4673

COURT FILE NO.: CV-19-00617733-0000

MOTION HEARD: 20220804

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BELINDA TERRA, plaintiff

AND:

DESJARDINS FINANCIALSECURITY LIFE ASSURANCE COMPANY, Defendant

BEFORE: Associate Justice R. Frank

COUNSEL: James Lim for the defendant/moving party Michael Walter for the plaintiff/responding party

HEARD: August 4, 2022

ENDORSEMENT

[1] This is a motion by the defendant, Desjardins Financial Security Life Assurance Company, for an order pursuant to section 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and Rule 33 of the Rules of Civil Procedure requiring the plaintiff to attend a psychiatric Independent Medical Evaluation (“IME”) with Dr. Hy Bloom, if available, or alternatively another properly qualified expert psychiatrist.

[2] The plaintiff objects. She takes the position that she has already attended a psychiatric assessment with Dr. Lawrence Chad in April 2018, and she submits that there is no evidence that would justify an order that she undergo a further examination.

[3] The plaintiff was insured under a group insurance policy issued by the defendant. In March 2013, the plaintiff ceased work and submitted a claim for disability benefits to the defendant. The plaintiff was approved for disability benefits starting March 30, 2013.

[4] While being paid disability benefits, the plaintiff was asked to attend a psychiatric assessment with Dr. Chad. The plaintiff attended the assessment and Dr. Chad provided a report dated April 20, 2018. After reviewing the plaintiff’s claim, including Dr. Chad’s report, the defendant concluded that the plaintiff was not “Totally Disabled”, as defined in the applicable policy, and advised the plaintiff that her benefits would end on December 31, 2018.

[5] The plaintiff commenced this action in April 2019, seeking, among other things, a declaration of total disability, payment of past and ongoing disability benefits, and aggravated, punitive, exemplary, and mental distress damages.

[6] In December 2019, the plaintiff served the defendant with a psychiatric IME report by Dr. Neal Westreich which was prepared in connection with this action. Dr. Westreich diagnosed the Plaintiff as having a Major Depressive Disorder with anxious features and Unspecified Trauma – and Stressor – Related Disorder.

[7] After receiving the plaintiff’s expert report, the defendant advised that it intended to have the plaintiff meet with Dr. Chad for a psychiatric evaluation. It was subsequently discovered that Dr. Chad is unavailable for IMEs, and it is unknown when he will resume conducting IMEs. The defendant then advised the plaintiff that, in place of Dr. Chad, it intended to have the plaintiff meet with Dr. Bloom, an expert psychiatrist, for an IME. The plaintiff has refused to attend a psychiatric IME with Dr. Bloom.

[8] The authority of the court to order a physical or mental examination is governed by section 105 of the Courts of Justice Act. Section 105(2) provides as follows:

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.

[9] Section 105(4) of the Courts of Justice Act provides as follows:

The court may, on motion, order further physical or mental examinations.

[10] Thus, one of the issues to be determined on this motion is whether Dr. Chad’s examination of the plaintiff prior to the commencement of this action constitutes a medical examination for the purposes of section 105 of the Courts of Justice Act. If it does, then the defendant’s current request for an examination of the plaintiff would be considered a request for a second examination, and it would be subject to different considerations in the exercise of the court’s discretion as to whether such an order should be made. If it is determined that Dr. Chad’s examination was not a medical examination for purposes of section 105 of the Courts of Justice Act, then the defendant has a prima facie right to the requested examination.[^1] As explained by Nordheimer J (as he then was) in Harris:

[5] While section 105(2) is expressed in discretionary terms, existing authorities establish that a first medical examination under that section is generally granted almost as a matter of right. The exercise of the discretion generally comes into play only when a second and subsequent examinations are requested under section 105(4).[^2]

[11] In Harris, Nordheimer J (as he then was) considered and reviewed the conflicting authorities as to whether a pre-litigation medical examination constitutes an examination under section 105 of the Courts of Justice Act, and held as follows with respect to the matter before the court in that case:

[10] I find myself of the same view as that expressed by Madam Justice Gillese and Mr. Justice Pitt. In particular, I agree with the central point made by Madam Justice Gillese that there is no reason to conclude that a right to a medical examination provided other than under section 105 should pre-empt the clear right given by section 105 to such an examination. While I appreciate that in the case before her, Madam Justice Gillese was dealing with a right to an examination under another statute, her reasoning, in my view, applies with equal if not greater force when dealing with the right to an examination that arises from the contract between the parties. If a person enters into an insurance contract which provides the insurer with the right to an examination, that right exists separate and apart from the right which the insurer has to a medical examination under section 105 once it becomes a party to litigation. When I say the right to a medical examination under section 105, I am not forgetting that the court retains the discretion whether to order any medical examination. The court is, therefore, able to eliminate any potential for abuse that might arise from this conclusion in any particular fact situation.

[11] This conclusion also accords with the policy behind ordering medical examinations. That policy is described by Madam Justice Gillese in Tsegay v. McGuire, supra, at para. 5:

The policy behind the defence medical exam is to uphold the right of the defendant to conduct his or her defence and to assist the court at trial by furnishing expert evidence that is subject to the adversarial process. The timing of the medical examinations is also different. The nature of the claim may have changed from the time the insurer exercises its right under s. 258.3 to the time the action is brought.

[12] I conclude therefore that one of the examinations being sought by the defendant here is a first examination under section 105 and that the defendant has a prima facie right to it… [^3]

[12] The plaintiff relies on a number of cases, including Anderson v. Teachers Life, 2010 ONSC 6585 (“Anderson”) and Zinchuk v. Unum Provident Canada, 2005 2327, in which the court declined to order a medical examination in circumstances where a pre-litigation examination had been conducted. In my view, the facts and circumstances of the present case are distinguishable from the cases relied on by the plaintiff and are very similar to Harris. As a result, I find that the examination sought by the defendants is a first examination under section 105 of the Courts of Justice Act and that, in the current circumstances, an order should be made requiring the plaintiff to attend at the proposed IME.

[13] If I am incorrect in my conclusion that the defendant’s request is for a first examination, I find that there is sufficient evidence of a change in circumstances that warrants a further medical examination. That evidence includes the following:

a. the plaintiff’s statement at her examination for discovery that she feels that her condition has been getting worse over time;

b. the inclusion in Dr. Westreich’s report of a new diagnosis of “Unspecified Trauma – and Stressor – Related Disorder”; and

c. the evidence that, although the plaintiff had been taking prescription psychiatric medication when she met with Dr. Chad in April 2018, it appears from a review of her prescription summaries that she has not filled any prescriptions for psychiatric medication since November 2018.

[14] I also find that there are a number of factors that distinguish this case from cases where courts have denied an insurer’s request for a litigation IME. For example, the plaintiff has served an expert report from Dr. Westreich in support of her claim in this action. In my view, it would be prejudicial to the defendant and contrary to trial fairness to preclude the defendant from responding to the plaintiff’s litigation expert report.[^4] Other factors that support an order for a medical examination and distinguish this situation from the circumstances in the cases relied on by the plaintiff include the following:

a. Dr. Chad’s report was obtained while LTD benefits were being paid, at a time when litigation was not yet anticipated. Unlike the situation in Anderson, for example, the defendant in this case did not obtain a report after the denial of benefits, at a time when litigation was anticipated; and

b. Dr. Chad has not been, and still is not, available to conduct an IME. This is a reasonable explanation as to why an assessor other than Dr. Chad is being proposed.

[15] The plaintiff also takes the position that if a further examination is ordered, the defendant should be precluded from calling Dr. Chad as a witness at trial and from relying on Dr. Chad’s report for any purpose at trial. The plaintiff submits that allowing Dr. Chad’s evidence at trial would, in effect, allow the defendant to have two medical experts, with the second “corroborating” Dr. Chad’s opinion. The defendant argues that such a restriction would be prejudicial to the defendant as it would prohibit the use of a key piece of evidence, namely the medical report that was part of the defendant’s reasoning for terminating the plaintiff’s benefits in 2018. In the circumstances, I am not prepared to make an order at this time that, as a condition of an IME, the defendant is not permitted to call Dr. Chad as a witness at trial or rely on his report. In my view, the defendant is not seeking to “corroborate” Dr. Chad’s previous report with another expert. In any event, Dr. Chad may have relevant evidence with respect to the events that took place prior to the commencement of the litigation. In the result, it should be left to the trial judge to determine whether and to what extent Dr. Chad is permitted to give evidence at trial, including with respect to his report.

[16] The plaintiff also objects to the assessment process proposed by Dr. Bloom, which provides for up to three interviews of the plaintiff by video conference that, in total, would not exceed four hours. The defendant’s position is that an examining physician has the right to conduct an assessment in the manner that the examining doctor deems fit.[^5] In this case, Dr. Bloom proposes an evaluation that is split over several interviews, which he views as more conducive to obtaining an accurate assessment of the plaintiff’s situation than would a single, longer session. In my view, the proposed process does not appear to be an abuse of process, particularly since the interviews will all take place by video conference and the plaintiff will not be required to travel to the examining physician’s office.

[17] The plaintiff also takes issue with the defendant’s request that the order provide that the IME may be conducted by Dr. Bloom, if available, or by another properly qualified expert psychiatrist of the defendant’s choosing. The defendant submits that the request is reasonable because the trial record has been filed and, given the delays in scheduling the examination, it is not clear whether Dr. Bloom will be available in the relatively near term. In the circumstances, I order that the examination shall be conducted by Dr. Bloom or such other qualified psychiatrist as the parties agree to, acting reasonably. If Dr. Bloom is unavailable to conduct the IME in a timely manner and the parties are unable to agree on an alternative psychiatrist, the parties shall schedule a case conference before me for direction with respect to the choice of an alternative examining psychiatrist.

[18] Finally, the parties made submissions as to whether, as part of the assessment process, the examining psychiatrist should be permitted to speak with lay witnesses in order to obtain contextual information about the plaintiff. The plaintiff submitted that the court has no jurisdiction to order a non-party to participate in the interview process. Counsel for the defendant noted that Dr. Westreich’s report referred to discussions with the plaintiff’s mother and clarified that the defendant is not seeking an order against a non‑party. Rather, the defendant is merely seeking confirmation that, as part of any order, the examining physician is not expressly precluded from contacting and speaking with non‑party lay witnesses as part of the IME. In my view, the defendant’s position with respect to lay persons is reasonable and I accept it for purposes of the IME.

Disposition

[19] For the reasons outlined above, I find that the defendant should be permitted to conduct an IME of the plaintiff. The examining psychiatrist shall be Dr. Bloom or such other qualified psychiatrist as the parties may agree to, acting reasonably. In the event that Dr. Bloom is unavailable to conduct the IME in a timely manner and the parties are unable to agree on an alternative psychiatrist, they shall schedule a case conference before me for direction with respect to the choice of an alternative psychiatrist. The IME shall be limited to three interviews of the plaintiff by video conference that, in total, shall not exceed four hours. Nothing in this order precludes the defendant and the examining physician from contacting and speaking with any non‑parties in connection the IME, and nothing in this order imposes any obligation on such non‑parties.

[20] On the issue of costs, the defendant submits that, if successful, it should be awarded costs in the amount of $7,837. The costs claimed by the defendant are on a partial indemnity basis until July 11, 2022 and on a substantial indemnity basis thereafter, which the defendant argues is justified based on an offer it made on that date. The plaintiff submits that the defendant’s offer did not meet the requirements of a Rule 49 offer because it did not confirm the proposed doctor who would perform the examination. The plaintiff also takes issue with the number of hours the defendant’s counsel spent on the motion and the inclusion of a disbursement for the transcript from the examination for discovery in the costs claimed by the defendant. The plaintiff submits that costs to the successful party should be in the range of $3,000 to $3,500.

[21] The defendant was successful on this motion and is presumptively entitled to its costs of the motion on a partial indemnity basis. Given the unusual circumstances, including the fact that the dispute arose because Dr. Chad is unavailable and the uncertainty as to whether Dr. Bloom will be available to conduct the examination, I am not prepared to order that any costs should be payable on a substantial indemnity basis.

[22] The overriding principles in determining costs are fairness and reasonableness.[^6] In addition, I am guided by the factors set out in Rule 57.01(1) when awarding costs, including the reasonable expectations of the parties on a motion such as this. Considering all relevant factors, I find that it is fair and reasonable in the circumstances and within the reasonable expectations of the parties for the plaintiff to pay the defendant costs on a partial indemnity basis and fixed in the amount of $4,000, inclusive of disbursements and taxes, within 30 days.

R. Frank Associate J.

Date: August 11, 2022

[^1]: See Harris v. Canada Life Assurance Co., 2002 49429 (ON SC) (“Harris”) at para 3 [^2]: Harris at para 5 [^3]: Harris at paras 10-12, citing Tsegay v. McGuire, 2000 50968 (ON SC), [2000] O.J. No. 1557 (Ont. S.C.J.). See also LaForme v. Paul Revere Life Insurance Co., 2006 81803 (ON SCDC) [^4]: Rysyk v. Booth Fisheries Canadian Co. Ltd. et al., 1970 510 (ON CA) at pp. 3-4 [^5]: Alladina v. Calvo, 2014 2550 (ONSC) at para 24 [^6]: See Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)