SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Guy Lafontaine, Plaintiff
AND: Holly McDaniel, Defendant
BEFORE: The Honourable Madam Justice K.E. Cullin
COUNSEL: Peter Denton, for the Plaintiff (Responding Party) Devan Munch, for the Defendant (Moving Party)
HEARD: August 5, 2022
ENDORSEMENT
Overview of the Motion
1This matter appeared before me in motions court. The defendant has brought a motion seeking the following relief:
a. Leave to bring the motion;
b. An order compelling the plaintiff to attend an independent medical examination with a doctor of the defendant’s choosing;
c. An order granting the defendant an extension of time to serve the expert report arising from the independent medical examination; and,
d. If necessary to permit the examination and preparation of the report to be completed, an adjournment of the scheduled trial date.
2The defendant submits that she requires an expert report to address the issues raised in the action and on the facts. She argues that she did not undertake an assessment earlier as she was attempting to resolve the action, and that it would be unfair and prejudicial to require her to proceed to trial without the benefit of an expert report. She is seeking to have the plaintiff assessed by a neuropsychologist.
3The plaintiff opposes the motion. He submits that the defendant was served with the plaintiff’s neuropsychological expert report on November 11, 2020 and argues that the defendant has provided no reasonable explanation for her late request. The plaintiff argues that permitting the assessment would delay the trial and cause him to suffer serious and non-compensable prejudice.
4The trial of this action is scheduled to commence on September 19, 2022.
Factual Background
5This action arises as a result of a motor vehicle accident which occurred on November 22, 2015. The accident occurred when the defendant’s vehicle collided with the rear of the plaintiff’s vehicle.
6The plaintiff seeks general damages of $2,000,000.00, as well as unspecified special damages. The plaintiff alleges that, as a result of the collision, he sustained: a concussion; flexion-extension injuries to his cervical, thoracic, and lumbar spine; a strain/sprain of his right calf; injuries to his right ankle and knee; numbness in his right hand, left shoulder, left arm, left hand, and left fingers. He alleges that he suffers from impairments of physical, mental, and psychological functions which cause him to endure pain and suffering, and for which he requires medical and rehabilitative treatment. He further alleges that his injuries and impairments interfere with his income-earning ability.
7The Statement of Claim was issued on March 17, 2016. A statement of defence was served denying the allegations in the statement of claim. The defendant has since admitted liability; the only issue at trial will be damages.
8A Trial Record was filed on August 24, 2017. Reviewing the court file, I note that the trial record was served and filed by the plaintiff. A pretrial conference was conducted on August 8, 2018.
9This matter is currently scheduled to proceed to trial commencing on September 19, 2022. It will be proceeding as a jury trial as the plaintiff has served a jury notice. This trial date was scheduled at an assignment court on September 8, 2021.
10This is the fourth scheduled trial date; three prior dates were adjourned.
11The first trial date was adjourned at the request of the plaintiff in order to permit the parties to participate in a mediation. The trial date is not disclosed in the evidentiary record before me; the affidavit materials indicate that the date was scheduled for trial at the assignment court on November 1, 2018. Regardless, the adjournment was granted and the mediation proceeded but was unsuccessful.
12A second trial date was scheduled to commence on October 15, 2019. That date was adjourned at the request of the defendant, who wished to bring a motion to have this action heard at the same time as an action commenced against the defendant by a passenger in the plaintiff’s vehicle. The motion was opposed and was argued on November 15, 2019; the defendant’s request was denied. The passenger’s action subsequently proceeded to trial before a judge alone in November 2021; it involved the same counsel as are involved in this action.
13A third trial date was scheduled to commence on September 28, 2020. The trial did not proceed on that date because jury trials were suspended due to the pandemic.
14This action is first on the sitting list commencing on September 19, 2022. The date was scheduled at the assignment court on September 8, 2021; there is no evidence before me that the defendant objected to the scheduling of the trial date. The plaintiff indicates that he is prepared to proceed to trial.
15A further mediation was conducted on May 6, 2022. That mediation was also unsuccessful.
Independent Medical Examinations
16On November 11, 2020, the plaintiff served an expert report on the defendant prepared by Dr. Joanna Hamilton, a Neuropsychologist. The report was dated October 1, 2020 and followed an assessment which was conducted by Dr. Hamilton on August 18 and 21, 2020 and September 2, 2020.
17On May 6, 2021, counsel for the defendant inquired about the plaintiff’s availability to attend a psychological assessment with Dr. Duhamel on May 31, 2021. On May 7, 2021, counsel for the plaintiff advised that the plaintiff was available to attend provided that the assessment was conducted virtually.
18On May 10, 2021, counsel for the defendant inquired whether the plaintiff would be available to attend in-person if required by the assessor. On May 19, 2021, counsel for the plaintiff advised that the plaintiff would be able to attend in-person once the provincial pandemic lockdown was lifted. On May 20, 2021, counsel for the defendant responded that a new date for the assessment had been requested and would be communicated once received.
19The provincial pandemic lockdown was lifted on June 2, 2021.
20The next communication from counsel for the defendant regarding a psychological assessment was sent to counsel for the plaintiff on May 12, 2022, following the failed mediation on May 6, 2022. The defendant sought to schedule a neuropsychological assessment with Dr. Lawrence Freedman on June 15, 2022. On May 24, 2022, counsel for the plaintiff advised that the plaintiff would not be attending the assessment; no reason was given for the objection.
21At the time of the motion, the defendant had obtained a date for a neuropsychological assessment with Dr. Duhamel on August 9, 2022.
22There is no evidence before me about the dates that the defendant expected the reports of either Dr. Freedman or Dr. Duhamel to be complete had the plaintiff consented to them. It is the plaintiff’s evidence that Dr. Hamilton is not available to prepare a reply to either report in advance of trial.
23There is no evidence before me regarding any other independent medical assessments which have been conducted on behalf of either party. I did note that, in his correspondence of May 24, 2022, Mr. Denton indicated that the plaintiff would not be attending, “another defence IME”. Dr. Hamilton’s report discloses several assessment reports in its “Information Reviewed” Schedule, however the party requesting those reports is not identified. None of the reports are psychological reports; they pertain to the plaintiff’s physical injuries.
The Law
Leave to Bring the Motion
24Pursuant to r. 48.04(1) of the Rules of Civil Procedure:
48.04 (1) Subject to subrule (3), a party who has set an action down for trial shall not initiate or continue any motion or form of discovery without leave of the court.
25Pursuant to r. 48.02(1), the party who sets an action down for trial is the party who serves the trial record.
26Historically, there has been some debate in the law about whether r. 48.04(1) also encompasses a party who did not serve the trial record, but who consented to placing a matter on a trial list or to scheduling a trial date (J.O. v. Dr. L., 2018 ONSC 4953, paras. 24-34). This arose from a prior iteration of r. 48.04(1), which provided:
48.04 (1) Subject to subrule (3), 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. (emphasis added)
27This rule was amended on May 17, 2021, through Ontario Regulation 343/21, by removing the reference to “any party who has consented to the action being placed on a trial list”.
28The analytical framework to be applied when considering a request for leave pursuant to r. 48.04(1) was summarized in Nelson v. Chadwick, 2019 ONSC 2063, at para. 35, as follows:
The determination of whether to grant leave pursuant to r. 48.04(1) of the Rules is an exercise of the court’s discretion. In Theodore Holdings Ltd. v. Anjay Ltd., at para. 15, Then J. had regard to the following considerations when determining whether to permit leave under r. 48.04(1) of the Rules (which were previously identified by Master Donkin in Financial Trustco v. Royal Trustco of Canada (1985), 5 C.P.C. (2d) 114 (Ont. Master)), as follows (with modifications to the circumstances of this case as warranted):
The court should consider the facts known to the party seeking leave as of the date that the party consented to the action being placed on the trial list;
Whether there has been an important change in the facts since the party consented to the action being placed on the trial list;
The object of the request for leave; and
Whether the relief sought would likely be granted if leave were given to bring the motion, notwithstanding the party’s consent that the matter be placed on the trial list.
Extending the Time for Service of an Expert Report
29The time for service of an expert report is provided in r. 53.03, which states:
53.03 (1) A party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference scheduled under subrule 50.02 (1) or (2), serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1).
(2) A party who intends to call an expert witness at trial to respond to the expert witness of another party shall, not less than 60 days before the pre-trial conference, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1).
30The court has discretion to extend the time for service of an expert report. Pursuant to r. 53.03(4):
Extension or Abridgment of Time
(4) The time provided for service of a report or supplementary report under this rule may be extended or abridged,
(a) by the judge or associate judge at the pre-trial conference or at any conference under Rule 77;
(b) by the court, on motion; or
(c) on the written consent of the parties, except that the parties may not consent to an extension that would affect the scheduled trial date.
31The test to extend the time to serve an expert report is a low threshold test. This issue was considered by Diamond J. in Shuster v Kilislian, 2017 ONSC 1941 who stated at para. 26:
As held by my colleague Justice Myers in Castronovo v. Sunnybrook & Women’s College Health Sciences Centre 2016 ONSC 6275 appeal dismissed 2017 ONCA 2012, to satisfy the relatively low threshold required to extent a deadline, a moving party must still submit the necessary evidence to explain the reasons for the delay in compliance.
32The ultimate issue in a motion seeking to obtain an expert report beyond the deadlines provided in the Rules, is the timeliness of the request by the moving party (Kendall v. Sirard, 2007 ONCA 468, paras. 41-41).
33In some circumstances, a party may obtain and serve an expert report without first requesting an extension. If a report is not served in accordance with r. 53.03, and an extension of time for service of the report has not been obtained from the court or on consent, the party seeking to rely upon the report at trial must seek leave from the trial judge pursuant to r. 53.03(3), which provides:
Sanction for Failure to Address Issue in Report or Supplementary Report
(3) An expert witness may not testify with respect to an issue, except with leave of the trial judge, unless the substance of his or her testimony with respect to that issue is set out in,
(a) a report served under this rule;
(b) a supplementary report served on every other party to the action not less than 45 days before the commencement of the trial; or
(c) a responding supplementary report served on every other party to the action not less than 15 days before the commencement of the trial.
34The test to be applied by the trial judge in determining whether to grant leave pursuant to r. 53.03(3) is set out in r. 53.08(1), which provides:
Evidence Admissible only with Leave
53.08 (1) If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave may be granted if the party responsible for the applicable failure satisfies the judge that,
(a) there is a reasonable explanation for the failure; and
(b) granting the leave would not,
(i) cause prejudice to the opposing party that could not be compensated for by costs or an adjournment, or
(ii) cause undue delay in the conduct of the trial.
Compelling Attendance at an Independent Medical Examination
35The court’s authority to order a party to attend an independent medical examination is provided in s.105 of the Courts of Justice Act, which states:
105 (1) In this section,
“health practitioner” means a person licensed to practise medicine or dentistry in Ontario or any other jurisdiction, a member of the College of Psychologists of Ontario or a person certified or registered as a psychologist by another jurisdiction. R.S.O. 1990, c. C.43, s. 105 (1); 1998, c. 18, Sched. G, s. 48.
Order
(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.
Same
(3) Where the question of a party’s physical or mental condition is first raised by another party, an order under this section shall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe that there is substance to the allegation.
Further examinations
(4) The court may, on motion, order further physical or mental examinations.
36In Bonello v. Taylor, 2010 ONSC 5723, at paras. 15-16, Brown J. (as he then was), provided an excellent summary of the guiding principles to be applied in a motion seeking an order pursuant to s. 105(2):
[15] The forensic purpose of a CJA s. 105 medical examination is to secure a “written report setting out [the examining health practitioner’s] observations, the results of any tests made and his or her conclusions, diagnosis and prognosis”: Rule 33.06(1). Invariably this is done in order to make available for trial an expert report that responds to a report filed by the plaintiff. Rule 53.03(1) deals at length with the process of exchanging expert reports, as well as with the contents of such reports. A key principle underlying Rule 53.03 is that if one party intends to call an expert witness at trial, she must serve a report from the expert on the other party, and the other party may call a responding expert provided that expert prepares a written report which is served on the opposite party: Rules 53.03(1) and (2). The right to respond to a plaintiff’s expert report is a substantive one, involving principles of trial fairness, as the Court of Appeal made clear in Rysyk v. Booth Fisheries Canadian Co. Ltd.:
It is plain that, if the defence proceeds to trial without the advantage of the examinations sought, it could be seriously prejudiced. Fairness in the conduct of this litigation seems to demand the defendants have the right now contended for, as, otherwise, the opinion of the plaintiff's expert in psychiatry and the plaintiff's own evidence would not be subjected to what is probably the best test and to a very great extent go unchallenged.
[16] Although the determination of whether to order a second or further examination by a health practitioner must turn on the specific facts and equities of a case, a body of case-law has developed around when a second or further examination may be ordered under CJA s. 105 and Rule 33. The leading principles can be summarized as follows:
(i) The party seeking the order for a further examination must demonstrate that the assessment is warranted and legitimate, and not made with a view to delaying trial, causing prejudice to the other party, or simply corroborating an existing medical opinion.
(ii) A request may be legitimate where there is evidence that (i) the party’s condition has changed or deteriorated since the date of a previous examination, (ii) a more current assessment of the plaintiff’s condition is required for trial, (iii) the plaintiff served specialist reports from new assessors after the defendants had conducted their medical assessments, or (iv) some of the party’s injuries fall outside the expertise of the first examining health practitioner.
(iii) Some cases take the view that the need for a “matching report” – i.e. a report from a defence expert witness in the same specialty as a plaintiff’s expert – is not, in and of itself, a sufficient reason to order a further defence medical. In the circumstances of the present case, I need not wade deeply into that question. That said, I would venture that trial fairness should operate as the guiding principle in this area, so if the plaintiff has decided that expert evidence from one specialty based on an examination of the plaintiff is relevant to the adjudication of her claim at trial, courts should be loathe to deny the defence a fair opportunity to respond with expert evidence from the same specialty based on an assessment of the plaintiff. Ordering further examinations may be just where they are necessary to enable the defendant fairly to investigate and call reasonable responding evidence at trial;
(iv) Where the request is for the examination of the plaintiff by a person who is not a health practitioner, such as a rehabilitation expert, the defendant must demonstrate that the proposed examination is necessary as a diagnostic aid to the health practitioner who is conducting the defence medical examination;
(v) A request for a second examination must be supported by sufficient evidence to persuade a court of the need for the further examination. What constitutes sufficient evidence will vary from case to case. Some cases have suggested that need must be established by filing medical evidence, such as an affidavit from the first examining physician recommending a further examination by a health practitioner competent in another specialty. In other instances, an affidavit from a lawyer or law clerk attaching medical reports has been utilized by the court. But, at the end of the day, determining whether the nature of the evidence filed is sufficient remains essentially an exercise of judicial discretion;
(vi) While fairness, or “creating a level playing field”, may constitute a legitimate reason for ordering a second examination, someone with knowledge of the evidence in the case must provide evidence of unfairness for the court to consider; and,
(vii) A court should consider whether the request for a further examination would impose an undue burden on the plaintiff in light of the number of examinations already conducted of her by the defence.
Analysis
Leave to Bring the Motion
37It is my view that, as a result of the amendments to r. 48.04, the defendant is not required to seek leave to bring this motion.
38Rule 48.04(1) imposes the requirement to seek leave on a party who “has set an action down for trial”. Rule 48.02(1) defines the act of setting an action down for trial as serving a trial record.
39The trial record in this action was served and filed by the plaintiff. There is no evidence before me to indicate that the defendant or her counsel signed a certificate setting the action down. While the defendant may have later consented to placing the matter on a trial sitting list at assignment court, there is nothing in the amended rule to indicate that doing so precludes her from bringing a motion without leave.
40If I am incorrect and the defendant is required to seek leave to bring the motion, then I would grant leave.
41While it is arguable that leave should not be granted due to the late date of this motion, in my view, in the specific circumstances of this motion, the timing of the motion is more properly considered when determining whether to grant an extension of time to serve an expert report.
42The defendant has brought this motion seeking an independent medical examination in order to respond to an expert report served by the plaintiff. That report was served after setting this action down for trial and placing it on a trial sitting list, and beyond the deadline for serving an expert report imposed by r. 53.03(1).
43The report of Dr. Hamilton was served on November 11, 2020, after the third scheduled trial date had been adjourned. There is no evidence before me regarding the circumstances, or the change in circumstances, that led to the preparation of the report. At the time that the report was prepared, the parties had completed the pretrial conference and had participated in a mediation.
44At the time that the trial record was served, and the action placed on a trial list, no psychological or neuropsychological reports had been served by the plaintiff. The service of the report changed the case to which the defendant was being asked to respond and justified the defendant’s request that the plaintiff attend an assessment. This appears to have been recognized by counsel for the plaintiff, who initially agreed to attend the assessment.
45The totality of the circumstances - the requirement to respond to a report served after the matter was set down for trial; the requirement to seek an extension of the time to serve the responding report to ensure compliance with the Rules; and the plaintiff’s refusal to attend an assessment which he had previously agreed to attend – support granting leave to the defendant to bring this motion.
Extension of Time to Serve an Expert Report
46A request to extend the time to serve an expert report must be supported by evidence explaining the reason that the extension is required. One of the issues of concern to the court in considering an extension request is its timeliness.
47Had this motion been brought in May or June 2021, when the defendant initially expressed her intention to request an assessment, and before the current trial date had been scheduled, I would have had no difficulty granting the defendant’s request for an extension. Unfortunately for the defendant, this is not how she elected to proceed.
48The defendant has provided no evidence to explain why, between May 20, 2021, and May 12, 2022, she took no steps to reschedule the assessment which did not proceed in June 2021. Indeed, the defendant’s motion materials did not even disclose the preliminary efforts to schedule the assessment; that evidence was provided to the court by the plaintiff.
49It is the defendant’s evidence that she deferred bringing this motion because, “it has been the defendant’s intention to have this matter resolved prior to trial”. Respectfully, this is a non-explanation that fails to address any of the following questions:
a. What efforts, if any, were made to reschedule the assessment between May 20, 2021 and May 12, 2022;
b. What discussion, if any, took place between counsel about the deferral of the assessment until after the mediation;
c. Knowing that a trial date had been scheduled a short time after the mediation, did the defendant seek the plaintiff’s consent to defer the assessment until after the mediation? If not, why not;
d. Why did the defendant not proceed with the assessment as a precaution in anticipation of trial given that there had previously been a failed pretrial conference, a failed mediation, three adjourned trial dates, and the passenger’s action had proceeded to trial;
e. What was the anticipated date of completion for Dr. Freedman’s report; and,
f. What was the anticipated date of completion for Dr. Duhamel’s report.
50I can appreciate as a general proposition that the prospect of resolution is improved if the defendant is able to direct funds earmarked for an assessment to a settlement. At this late stage in the litigation, however, with a trial date looming on the horizon, it was incumbent upon the defendant to ensure that, in the event that the mediation failed, either she was prepared for trial or that she had the consent of the plaintiff to conduct an eleventh-hour assessment.
51The defendant argues that she will be prejudiced if the extension is denied, and she is required to proceed to trial in the absence of an assessment. She fails, however, to address the prejudice that will result to the plaintiff if the extension is granted.
52It is clear on the record before me that, whether the assessment had been conducted in June or in August, it would have caused an adjournment of the trial; counsel for the defendant ultimately conceded this point in argument. The defendant provided no evidence about the anticipated completion date for the report of either Dr. Freedman or Dr. Duhamel, and it was the plaintiff’s undisputed evidence that Dr. Hamilton would not have been able to reply to the defendant’s expert report in advance of trial regardless of when it had been completed.
53The plaintiff is exposed to non-compensable losses in the event of an adjournment. Pursuant to the Insurance Act, R.S.O. 1990, c.I-8, the plaintiff’s general damage award is subject to a statutory deductible which is indexed annually, and any award for past income loss is compensated at a reduced rate of 70% of gross damages. These statutory requirements reduce the compensation available to the plaintiff with every adjournment that is granted. The record before me suggests that it will be at least a year or more before the trial can be rescheduled if it is adjourned now.
54I find that granting the extension requested by the defendant would effectively endorse the defendant’s calculated decision to defer her assessment to the eleventh hour, at the expense of the plaintiff. The defendant cannot reasonably expect the court to rectify prejudice that she has brought upon herself by visiting prejudice upon the plaintiff. The defendant’s request for an extension is therefore denied.
Compelling Attendance at an Independent Medical Examination
55Given my decision not to grant the extension requested by the defendant, it is not necessary for me to decide whether the plaintiff should be compelled to attend the requested assessment pursuant to s.105(2) of the Courts of Justice Act.
56In the event that I am incorrect in my decision to deny the extension, or in the event that the trial of this action is adjourned for another reason and the defendant elects to renew her request to compel the plaintiff to attend an assessment, I would note that I would have ordered the assessment requested by the defendant.
57In argument, the plaintiff did not dispute the court’s authority to compel the plaintiff to attend a defence neuropsychological assessment. This was an appropriate concession, given that the plaintiff had agreed to attend an assessment when it was initially proposed in May 2021.
58Had the assessment been pursued in a timely manner, I find that it would have been a warranted and legitimate assessment that would have responded to an issue raised by the plaintiff. As I have denied the defendant’s request for an extension of time to serve the expert’s report, however, I decline to order the plaintiff to attend the underlying assessment.
Disposition
59For the reasons given above, I hereby make the following orders:
a. The defendant’s request for leave to bring this motion pursuant to r. 48.04(1) is granted.
b. The defendant’s request for an extension, pursuant to r. 53.03(4) of the time to serve an expert report from a neuropsychologist is denied. This order is made without prejudice to the ability of the defendant to renew this motion in the event that the trial, currently scheduled to commence on September 19, 2022, is adjourned for any reason.
c. The defendant’s request for an order, pursuant to s.105(2) of the Courts of Justice Act, compelling the plaintiff to attend a neuropsychological assessment with an expert of the defendant’s choice, is denied. This order is made without prejudice to the ability of the defendant to renew this motion in the event that the trial, currently scheduled to commence on September 19, 2022, is adjourned for any reason.
d. The costs of this motion are reserved to the trial judge.
60For the sake of clarity, I would note that I have not made a determination about whether the plaintiff is able to rely upon the evidence of Dr. Joanna Hamilton at trial. The report of Dr. Hamilton was not served 90 days in advance of the pretrial conference as required pursuant to r. 53.03(1). The plaintiff is required to seek leave from the trial judge pursuant to r. 53.03(3), applying the criteria pursuant to r. 53.08(1).
The Honourable Madam Justice K.E. Cullin
Date: September 12, 2022