Released: 2023/01/09
Superior Court of Justice – Ontario
Re: Lynnette Dalton James et al. v. State Farm Mutual Automobile Insurance Co.
Before: Associate Justice Graham
Heard: January 9, 2023
Appearances: Michael Gayed for the plaintiff Mark Koyama for the defendant (moving party)
Reasons for Decision
(Re: Defendant’s motion to compel the plaintiff’s attendance at a defence medical examination)
[1] The plaintiff Lynnette Dalton James claims damages arising from a motor vehicle accident that occurred on August 16, 2014 on Queen Elizabeth Way in Hamilton, Ontario. Ms. James was a passenger in a vehicle operated by her spouse David Dalton James when he stopped the vehicle on the north shoulder of the roadway to ensure that a load carried on the vehicle was properly secured. While they were stopped, and Mr. James was outside the vehicle, a tire became detached from a passing vehicle and struck the plaintiffs’ vehicle.
[2] The plaintiff Lynnette Dalton James alleges both physical and psychological injuries. She underwent a psychological assessment with Dr. Judith Pilowsky who prepared a report dated June 9, 2021 that was served on June 14, 2021. The defendant now brings this motion to require Ms. James to attend a defence psychological examination with Dr. David Prendergast.
[3] On August 5, 2021, the defendant scheduled an examination with Dr. Prendergast to proceed at 5945 Airport Road in Mississauga, the head office of AssessMed, which is described as providing “objective, independent medical assessments for a variety of clients.” The defendant subsequently offered to provide transportation for the plaintiff to attend the examination. On December 1, 2021, the plaintiff agreed to attend the requested examination with Dr. Prendergast, in person, provided that it proceed in Markham, Ontario where she resides, rather than in Mississauga. She would also agree to attend an examination conducted by videoconference. Plaintiff’s counsel’s objection to an examination in Mississauga was that based on Dr. Pilowsky’s report, “Ms. James is not solely dealing with driving anxiety but ongoing pain.”
[4] The issues on the motion are whether the examination should be ordered to take place in Mississauga, Ontario (immediately west of Toronto) or in Markham, Ontario (north of the eastern edge of Toronto), or, alternatively, whether it should proceed by videoconference.
[5] Given that the plaintiff takes no issue with having to attend at the proposed defence psychological examination with Dr. Prendergast, it is unfortunate that the location of the examination has apparently become an insurmountable problem.
Applicable Statute, Rule and Case Law
[6] This motion is brought under s. 105(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43:
105(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.
[7] As stated, the plaintiff does not object to attending a psychological examination with Dr. Prendergast and the main issue is where the examination will be held. The court may resolve that issue under rule 33.02(1) of the Rules of Civil Procedure:
33.02(1) An order under section 105 of the Courts of Justice Act may specify the time, place and purpose of the examination and shall name the health practitioner or practitioners by whom it is to be conducted.
[8] The principles applicable to determining the location of a defence medical examination were stated in McGowan v. Green, 2020 ONSC 373, at paras. 9 and 10 and cited with approval by Master McAfee (as she was then titled) in Harris v. Mast Landscaping Limited, 2021 ONSC 3937, at para. 10:
[i] There is no general rule as to the place of the examination: Lamarr v. Marsman et al.; [ii] Prima facie, the defendant has a right to select the physician to perform the examination: Smith v. Liberty Life Assurance Co. of Boston; [iii] As the defendant’s medical expert may well be the only medical witness for the defence at trial, the courts should not unreasonably interfere with the choice of the medical assessor where the assessment is not unreasonably inconvenient: Manning (Litigation guardian of) v. Ryerson; [iv] The place of examination should be determined by what is convenient and just: Manning, ibid at para. 5; [v] The convenience of the party to be examined is a factor to be considered: Baker v. Hayes, at para. 2; [vi] “The convenience of the party” includes providing adequate transportation, as the party’s circumstances require.
[9] Items [ii] and [iii] are of no relevance to this motion because there is no issue as to the choice of the defendant’s proposed psychological examiner Dr. Prendergast or whether he should be able to conduct the examination of the plaintiff. As stated above, the only issue is the location and possibly the means of the examination.
Submissions of the Defendant
[10] The defendant submits that there is no evidence from the plaintiff herself as to the anticipated effect on her of having to travel by vehicle from Markham to Mississauga for the proposed psychological examination and that the court should draw an adverse inference from this lack of evidence.
[11] With respect to the plaintiff’s ability to travel as a passenger in a vehicle, the defendant also relies on surveillance conducted of the plaintiff on October 10, 2021 showing her riding in a vehicle on various occasions over the course of the afternoon. Specifically, she was observed riding as a passenger in a vehicle operated by her husband for the following periods of time:
- 2:18 – 2:28 p.m.: They drove from their residence through Markham until they were lost from the investigator’s view.
- 4:42 – 5:06 p.m.: They drove from their residence, picked up their daughter and another young girl (4:48 p.m.), dropped the two girls at a Wendy’s, and then went to a Dollarama store (5:06 p.m.).
- 5:27 – 5:52 p.m.: They drove from Dollarama to the Wendy’s where they picked up the two girls (5:31 p.m.), drove the two girls to what appeared to be the daughter’s friend’s house (5:41 p.m.), and returned home.
[12] I note that all of the travel observed during the surveillance was on suburban residential or commercial streets in Markham; none of it was on highways.
Submissions of the Plaintiff
[13] Plaintiff’s counsel acknowledges that there is no evidence directly from Ms. Dalton James as to her fear of travelling in a vehicle. The plaintiff relies on the report of Dr. Pilowsky dated June 9, 2021 (p. 17 of plaintiff’s motion record):
“ . . . Ms. Dalton James indicated that she experiences flashbacks of the moment when she believed her husband was killed, and was constructing his demise in her mind in the direct aftermath of the collision. This tends to occur when in close proximity to the original accident location, or when she attempts to spend time on her balcony and she can hear heavy traffic. At such times, she also tends to catastrophize and consider all the ways in which her accident could have been worse or caused the death of her, her husband, or her children had they been present.
Ms. Dalton James described herself as a confident driver pre-accident; her car was written-off as a result of the subject accident and has not been replaced. This, paired with fear of getting behind the wheel has resulted in Ms. Dalton James only driving on very rare occasions post-accident and strictly close to her place of residence. Ms. Dalton James added that driving can also be painful physically for her, which is another deterrent.
Similarly, Ms. Dalton James is avoidant and fearful as a passenger in a motor vehicle and ultimately prefers, if she must travel, using public transportation or walking. Overall, the following on-road situations exacerbate her fear on the road: travelling in unfamiliar places, near large trucks, vehicles following too closely from behind, merging, as well as close proximity to the original accident location.” [emphasis added]
[14] Dr. Pilowsky’s diagnoses with respect to Ms. James are (pp. 21-24 of the plaintiff’s motion record):
- Major Depressive Disorder, Single Episode, Moderate
- Posttraumatic Stress Disorder with vehicular anxiety/avoidance
- Somatic Sympton Disorder with Predominant Pain, Persistent, Moderate
[15] Plaintiff’s counsel has provided evidence that AssessMed has premises in Markham at which they arrange independent medical assessments and that AssessMed offers Virtual Mental Health Assessments. According to Google Maps, the AssessMed location in Markham is 11 km from the plaintiff’s home. Counsel submits that Dr. Prendergast could conduct the examination at AssessMed’s Markham location. Dr. Prendergast has provided no evidence that he could not conduct the examination at AssessMed’s Markham location, nor that he would be constrained or inconvenienced in performing the defence medical examination in Markham.
[16] Defendant’s counsel acknowledges that Dr. Prendergast could attend in Markham to conduct the examination of the plaintiff but submits that doing so would take him away from other possible appointments at the Mississauga location. However, defendant’s counsel also acknowledged that the examination would take place from 9:30 a.m. to 4:00 p.m. so it is questionable what other appointments Dr. Prendergast would have on the same day as his examination of the plaintiff.
[17] Plaintiff’s counsel also submits that the adverse consequences to Ms. Dalton James described by Dr. Pilowsky raise significant concerns as to what her mental state might be when undergoing the examination with Dr. Prendergast immediately following a car trip on the highway.
[18] Plaintiff’s counsel comments that the surveillance of the plaintiff described above shows the plaintiff travelling in a vehicle only as a passenger and only for relatively brief periods of time. Further, she only left home on two of the four occasions on which surveillance was attempted.
Analysis and Decision
[19] As stated, the issue is where the plaintiff should be required to attend for the defence psychological examination to be conducted by Dr. Prendergast.
[20] The defendant submits that it would take only take 33 minutes for the plaintiff to travel from her home in Markham to the AssessMed offices on Airport Road in Mississauga. Ms. James’s home is east of Markham Road and north of Highway 407, north of the eastern edge of Toronto, and the AssessMed office in Mississauga is west of Highway 427 and north of Highway 401, immediately west of Toronto. Dr. Pilowsky’s psychological diagnoses with respect to the plaintiff include “Posttraumatic Stress Disorder with vehicular anxiety/avoidance.”
[21] The defendant has not shown how it was determined that the trip from Ms. James’ residence to the Mississauga AssessMed office could be completed in 33 minutes. Given the distance to be travelled, this estimate must be based on ideal driving conditions, presumably during usual business hours when such conditions rarely if ever exist. Regardless, to travel by vehicle from her home in Markham to the AssessMed office in Mississauga would require Ms. James to cross the entire width of Metropolitan Toronto on a 400 series highway, inevitably exposing her to “travelling in unfamiliar places, near large trucks, vehicles following too closely from behind, merging”, being the conditions that Dr. Pilowsky has said will exacerbate her vehicular anxiety. Such conditions are quite different from those under which she was observed during surveillance.
[22] Plaintiff’s counsel submits that Dr. Prendergast could conduct an in person examination of Ms. James at the AssessMed offices in Markham. Dr. Pilowsky’s report provides evidence of negative consequences to the plaintiff arising from having to travel to Mississauga for Dr. Prendergast’s examination, but there is no evidence from the defendant as to why Dr. Prendergast could not travel the same distance to Markham to conduct an assessment estimated to take most of the day.
[23] As stated in Harris v. Mast Landscaping, supra, “the convenience of the party to be examined is a factor to be considered” in determining the location of a defence medical examination. Dr. Pilowsky’s evidence is that the conditions that Ms. James would likely encounter while travelling by vehicle from her home in Markham to the AssessMed offices in Mississauga are such as would exacerbate her vehicular anxiety. In the absence of any explanation why Dr. Prendergast could not travel from Mississauga to Markham to conduct the examination, the plaintiff Lynnette Dalton James shall attend the proposed examination with Dr. Prendergast at the AssessMed offices in Markham. Alternatively, at the defendant’s option, the plaintiff Lynnette Dalton James shall attend the psychological examination by videoconference.
Costs
[24] At the conclusion of the hearing, counsel agreed that the costs of the motion be fixed at $3,700.00 payable to the successful party in any event of the cause. As I have accepted the plaintiff’s argument that the defence psychological examination be conducted by Dr. Prendergast at the AssessMed premises in Markham rather than Mississauga, the defendant State Farm shall pay the costs of the motion fixed at $3,700.00 payable in any event of the cause.
Plaintiff’s Request for Leave to Set Action Down for Trial Before Mediation
[25] Owing to the delay in the matter proceeding because of the dispute as to the location of the defence medical examination, plaintiff’s counsel requested leave to set the action down for trial before the completion of mandatory mediation. As the Rules of Civil Procedure clearly contemplate that all pre-trial steps in an action, including mandatory mediation, be completed before the action is set down for trial, the plaintiff’s request is refused.
Associate Justice Graham January 9, 2023