Court File and Parties
COURT FILE NO.: CV-19-00000226 DATE: 20230529 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Cindy Waller, Plaintiff AND: Anna Rutkevich, Honda Canada Finance Inc., Aviva Insurance Company of Canada [1] , Defendants
BEFORE: Justice A.D. Grace
COUNSEL: R. Kuehn, for the plaintiff C. Ross, for the remaining defendants Anna Rutkevich and Honda Canada Finance Inc.
HEARD: May 24, 2023
Endorsement
[1] The principal relief sought on this motion by the remaining defendants, Anna Rutkevich and Honda Canada Finance Inc., is an order that the plaintiff attend a combined psychological and neuropsychological assessment with Dr. Mark Watson.
[2] I start with the relevant background. It commences with a rear end collision on February 6, 2017.
[3] A statement of claim was issued on January 30, 2019. It alleges the plaintiff, Cindy Waller, sustained a range of physical and psychological injuries including “cognitive impairment…which continue to the present and will continue in the future.” [2]
[4] The steps taken by Ms. Waller following the accident included participation in two programs offered by the Acquired Brain Injury (“ABI”) Clinic at Parkwood Hospital in London, Ontario.
[5] Ms. Waller was examined for discovery on June 16, 2020. On September 30, 2020, her counsel served a rule 53 expert’s report authored by psychologist Dr. Amy Bax.
[6] The trial record was served and filed by the plaintiff in late September 2021.
[7] On consent, pre-trial (July 11, 2023) and trial (the November 14, 2023 running list) dates were set in the December 17, 2021 civil assignment court.
[8] Shortly beforehand, the parties’ counsel agreed to exchange expert reports “as per the Rules.” I will have more to say about that aspect of the matter shortly.
[9] On January 4, 2023, the plaintiff’s counsel served a rule 53 report physiatrist Dr. Keith Sequeira had authored on November 29, 2022.
[10] Arrangements made by the moving parties for Ms. Waller to see physiatrist Dr. Joshua Muhlstock were communicated on February 13, 2023. That assessment proceeded. Dr. Muhlstock’s rule 53 report dated May 11, 2023 is in hand.
[11] A February 16, 2023 letter advised Ms. Waller’s counsel of the appointment the moving parties had made for a “Psychology/Neuropsychology Assessment” by Dr. Watson.
[12] The plaintiff’s willingness to participate in a psychological assessment was communicated in her lawyer’s February 24, 2023 response. With respect to the other component, Ms. Waller’s lawyer wrote:
I am not agreeing to a third assessment by a neuropsychologist, particularly when the plaintiff has not obtained a neuropsychology report in the matter.
[13] Counsel continued to debate the issue in subsequent correspondence. On February 27, 2023, the moving parties’ lawyer said in part:
… in light of your client’s cognitive complaints and the fact she has attended the ABI program at Parkwood; [sic] the assessments I have proposed are necessary to respond to the claims advanced.
If your client is not prepared to attend we will proceed with a motion to compel attendance, seek our costs of the cancellation of the appointment and I expect will necessarily be forced to seek an adjournment of the pre-trial.
[14] In her March 2, 2023 response, Ms. Waller’s counsel reiterated her client’s willingness to participate in a psychological assessment on the date scheduled and added:
Your request for further defence medical examinations is coming late in this process. We are quickly approaching the pre-trial date. I do not have a neuropsychological assessment in this case. My client’s cognitive issues have been commented on by both psychology [ sic ] and referenced by Dr. Sequeira. If you obtain a neuropsychological assessment, I will be required to obtain a responding assessment, increasing costs and potentially resulting in a late served expert report. Jeopardizing a trial date is prejudicial to my client. In essence, your late request for a third defence medical assessment could result in a delay of this matter. Further, as you know, neuropsychological testing has to be spaced out. As such, my client would be prejudiced in obtaining her own neuropsychological date…
[15] The moving parties decided to cancel the appointment with Dr. Watson. A psychological assessment was not completed. An eye raising cancellation fee of $11,865 was incurred. An order requiring Ms. Waller to pay that amount is also sought.
[16] The motion record was served on April 3, 2023. A long motion date was obtained on the first return of the motion. Argument proceeded on May 24, 2023 as scheduled.
[17] With that background, I turn to the merits.
[18] A motion of this kind is commonplace. Consequently, I do not feel it necessary to recite s. 105(2) or (4) of the Courts of Justice Act or rule 33.01 of the Rules of Civil Procedure. The question is not whether the court has jurisdiction to require Ms. Waller to submit to a neuropsychological assessment but rather whether it should do so.
[19] In that regard, given the frequency of these motions, I will also not reproduce the helpful and regularly quoted list of leading principles summarized by D.M. Brown J. (as he then was) in Bonello v. Taylor, 2010 ONSC 5723 (S.C.J.), at para. 16. Despite the passage of time, they continue to apply. I agree with my former colleague “that trial fairness should operate as the guiding principle in this area”. [3]
[20] Given the timing of the moving parties’ request that Ms. Waller be assessed by Dr. Watson and this motion, some important procedural rules bear mention.
[21] Having consented to pre-trial and trial dates, the parties acknowledge that rule 48.04(1) is engaged. Among other things and subject to inapplicable exceptions, the subrule requires leave of the court before any motion is initiated. The provision of leave is not opposed by the plaintiff and is granted given the importance of the issue to the parties and the administration of justice.
[22] Once an action is placed on a trial list, “all parties shall be deemed to be ready for trial”: rule 48.07(a). In my view, in a case involving expert evidence, that subrule should be read together with the too often ignored rule 53.03(2.2). The parties reminded me of the following comments I made about that provision in Coll v. Robertson, 2020 ONSC 383, at paras. 5 – 12. Since my thoughts are unchanged, they are reproduced below:
Rule 53.03(2.2) is an important sub-rule. It requires parties to agree to a schedule for the timely delivery of expert reports within sixty days of setting an action down for trial. The provision is not permissive. It is mandatory.
That means the schedule should be in place by the time the matter appears on an assignment court list. If done properly, the schedule will identify, at least by specialty, the nature and deadline for delivery of each expert's report the parties intend to rely upon.
I recognize there may be areas of disagreement but timely attempts to do what the sub-rule mandates will identify the issue and provide an early opportunity to resolve same whether by way of judicial involvement in a rule 50.13 case conference or motion or other means such as further negotiation.
The local bar has been reminded many times of the importance of the provision to the administration of justice. Non-compliance is, in my view, the most common reason pre-trials are not productive and trials are either adjourned, interrupted, or exceed their time estimates to the detriment of all.
The principal lawyers involved in this action are well familiar with the problem. They argued a motion before me in September 2017. Rule 53.03(2.2) had not been complied with. At para. 21 of my endorsement I wrote:
Argument was interactive. [The lawyers] are experienced and well-respected counsel. As usual, their submissions were helpful. They fairly acknowledged a failing which is, sadly to me, commonplace at least in this jurisdiction and I strongly suspect, elsewhere in Ontario.
History should not have repeated itself. Unfortunately, it did. Members of the local bar and their agents have been repeatedly told that civil pre-trial and trial dates are assigned based on the court's understanding they have complied with the sub-rule. If they have not done so, the matter should be traversed to the next monthly assignment court date so that the deficiency can be remedied. If satisfied an agreed schedule is on the eve of being in hand, dates may be assigned on terms. That is the only exception.
[23] As noted earlier, counsel in this case agreed they would exchange expert reports in accordance with the timelines set forth in the Rules. The “agreement” was left to law clerks. The lawyers of record appear to have played no role. They should have. The lawyers should have communicated directly. They should have discussed areas of specialty. Had they done so, they would have identified the area of disagreement that is now before the court some 17 months after pre-trial and trial dates were set.
[24] Early identification of the existing issue would have enabled the parties and if necessary, the court, to deal with the question of a neuropsychological assessment many months ago.
[25] None of this should come as a surprise to anyone. The fact I have had to address another failure to comply with rule 53.03(2.2) in mid-2023 and reiterate comments I made well over three years ago is beyond discouraging, particularly in a case involving local counsel.
[26] Complaints by lawyers about the civil justice system in Ontario are plentiful and justified. However, a good many should look inward, recognize and accept shared responsibility and strive to do better every day. Complacency is the most gentle descriptor I can find.
[27] If lawyers – presumably on their client’s instruction - ignore the obligation the subrule imposes and clear messaging from the court, they do so at their peril.
[28] Furthermore, I cannot understand why the moving parties waited so long to request a neuropsychological assessment. In their motion material, they rely on allegations in the statement of claim, answers given by Ms. Waller when examined for discovery on June 16, 2020 and medical records from 2019. Dr. Sequeira’s report is mentioned too but the fact he mentioned “a probable concussion” and “post concussive syndrome” did not expose new territory. The failure to pursue the issue earlier is entirely unexplained.
[29] Making the requested order now would, inevitably, result in an adjournment of the pre-trial and trial. The moving parties submit the plaintiff bears responsibility for that predicament. In argument, their counsel suggested Dr. Watson’s report would have been delivered by the April 11, 2023 deadline for a “first” neuropsychological report. [4] With respect, there is nothing in the evidence filed by the moving parties that addresses, let alone supports, that assertion.
[30] In any event, Ms. Waller’s counsel did not know a neuropsychological assessment was contemplated by the remaining defendants until mid-February 2023. On the evidentiary record before me, it is inconceivable a responding report could have been served at least 60 days before the pre-trial as rule 53.03(2) requires. Availability of appointments is limited. Lengthy delay is commonplace. Furthermore, a requirement is often imposed that between 6 and 12 months pass before neuropsychological testing is repeated. [5]
[31] Ms. Waller’s material addresses the issue of prejudice. It starts, of course, with the reality of justice delayed in an already clogged system. [6] The likelihood she will have to seek out a responding expert report is high. There will be an attendant cost. Existing reports may, likely will, need to be updated. If the statutory deductible ends up applying, it will increase. [7]
[32] In the circumstances, the moving parties bear the onus of establishing that the interests of justice require the making of the order sought notwithstanding their inordinate and unexplained delay: Letchumanan v. Jeyaseelan, 2021 ONSC 5253 (S.C.J.), at paras. 5 – 10. The burden has been described as a “heavy one”: Babcock v. Destefano, 2016 ONSC 5352 (S.C.J.), at para. 13.
[33] Ms. Waller alleges she suffered physical and psychological injuries as a result of the motor vehicle accident. After reviewing several authorities in Moore v. Jacob, 2022 ONSC 10 (S.C.J.), Heeney J. said, at para. 20:
… it is the nature of the plaintiff’s injuries that determine the entitlement of the defendant to seek a response from appropriate experts. Where both physical and mental issues are raised by the plaintiff, the defendant should be entitled to respond to each issue.
[34] Ms. Waller takes no issue with that proposition. As mentioned, she was assessed by the physiatrist chosen by the remaining defendants. She agreed to submit to a psychological assessment by Dr. Watson. Those concessions were appropriate ones. The court is “loathe to deny the defence a fair opportunity to respond with expert evidence from the same specialty”. [8]
[35] Unfortunately, the psychological examination did not proceed when Ms. Waller declined to allow Dr. Watson to assess her from a neuropsychological perspective too.
[36] There is no reason in principle that independent medical examinations must be confined to the specialties identified by the plaintiff. [9] The moving parties noted that a neuropsychological assessment was ordered in Moore v. Jacob, supra, despite the fact the plaintiff was relying exclusively on a report authored by a physiatrist. [10]
[37] S. Nicholson J. dealt with the same issue at a later stage of Coll v. Robertson, 2021 ONSC 2124 (S.C.J.). Before embarking on his analysis, my colleague noted that the pre-trial and trial dates were distant and that the motion’s timeliness was not in issue. [11]
[38] In that case, the author of the chronic pain assessment the plaintiff had commissioned suggested “a possibility of traumatic brain injury that requires further Neuropsychological assessment.” The motion judge found that comment to be “[e]specially noteworthy”. [12] At para. 29, Nicholson J. observed that:
… the defendant should anticipate having to respond to evidence in respect of the plaintiff’s physical, emotional and cognitive impairments.
[39] The plaintiff’s attendance was ordered for the purpose of examination by a physiatrist, psychiatrist and neuropsychiatrist but the parties were told the neuropsychologist was not to conduct a psychological assessment. [13]
[40] As noted, the plaintiff served reports of a psychologist (Dr. Bax) and physiatrist (Dr. Sequeira) in September 2020 and January 2023, respectively. Dr. Bax was of the view that Ms. Waller’s ability to concentrate was affected by anxiety and persistent pain. [14] Dr. Sequeira offered suggestions “to facilitate and optimize Ms. Waller’s management.” The final recommendation was as follows:
Neuropsychology testing at some point time [ sic ] may be helpful for Ms. Waller. She presents with cognitive impairments and although she did reasonably well during my assessment of her, Neuropsychology testing would provide a clearer assessment of her cognitive ability and any potential concussive effects. [15]
[41] The supporting affidavit filed by the moving parties did not refer to Dr. Bax’s report. Nothing in Dr. Sequeira’s report comes close to the contents of the one Nicholson J. emphasized in his decision in Coll v. Robertson, supra.
[42] I have not forgotten that during argument, Ms. Waller’s lawyer acknowledged a neuropsychological assessment might well be helpful. However, he emphasized that did not mean it was necessary because the plaintiff was not alleging she suffered a significant psychological injury that resulted in a cognitive deficiency that imperils her safety or affects her functioning. Considered choices were made by Ms. Waller when experts from the fields of psychology and physiatry were retained. It was understood that there would be consequences. Evidence concerning the issue of cognitive impairment – whether from Ms. Waller, participant or non-participant experts – may well be limited, if admissible at all. Those risks were freely accepted because that aspect of the matter is not the plaintiff’s focus.
[43] Given the evidentiary record and those fair acknowledgements, I have concluded that trial fairness does not require the order the moving parties seek. To the contrary, ordering a neuropsychological assessment would tip the balance in the moving parties’ favour. It would involve the taking of the step Dr. Sequeira suggested occur “at some point”. Such an order would not be for the purpose of facilitating and optimizing Ms, Waller’s management as Dr. Sequeira had contemplated but to allow a thorough investigation of an issue Ms. Waller has no interest in pursuing at trial. Even if the issue of timing is ignored, I am of the view the contemplated neuropsychological assessment will be of minimal value. I do not believe it is needed.
[44] The prejudice to Ms. Waller – in terms of cost and time - far outweighs any possible prejudice to the moving parties or benefit to the triers of fact. [16]
[45] Furthermore, when considered in the context of the procedural background I have outlined, this motion is not a close call. In Matic v. Timpano, Ramsay J. wrote, at para. 12:
The prejudice to [the plaintiff] and to the orderly administration of justice outweighs the disadvantage that the defence has brought on itself.
[46] If the moving parties are disadvantaged in any way, it was self-inflicted here too. [17]
[47] For the reasons given, I decline to order that Ms. Waller participate in a neuropsychology assessment.
[48] The balance of the relief sought by the moving parties rises or falls with the principal remedy sought. Given the disposition of that issue, the moving parties’ motion is dismissed.
[49] I have no doubt Ms. Waller is still willing to attend a psychological assessment with Dr. Watson. An explanation was not provided by the moving parties for the cancellation of both parts of the appointment that had been scheduled with him for March 8, 2023. Given the rapidly approaching pre-trial date, quick work is required by the moving parties. I am confident Ms. Waller’s counsel will provide reasonable cooperation.
[50] If the issue of costs of the motion requires argument, written submissions of no more than four pages may be provided by the close of business on June 12 and 26, 2023, by the plaintiff and moving parties, respectively.
“Justice A.D. Grace” Justice A.D. Grace Date: May 29, 2023
Footnotes
[1] The action has been discontinued against Aviva Insurance Company of Canada.
[2] The excerpt is drawn from para. 12 of the statement of claim.
[3] The excerpt is drawn from para. 16 (iii). See, too, Yan v. Nabhani, 2016 ONSC 3138 (Master), at para. 23.
[4] Rule 53.03(1) requires that such a report be served at least 90 days before a pre-trial conference.
[5] The plaintiff filed a May 3, 2023 e-mail from Clinical Psychologist and Neuropsychologist Dr. Erin Warriner on this point.
[6] Louis v. Poitras, 2021 ONCA 49, at para. 22.
[7] This issue was discussed by McCarthy J. in MacKenzie v. Pallister, 2021 ONSC 1840 (S.C.J.), at para. 12.
[8] Bonello v. Taylor, 2010 ONSC 5723 (S.C.J.), at para. 16 (iii).
[9] Moore v. Jacob, 2022 ONSC 10 (S.C.J.), at paras. 21 – 24.
[10] See, too, Godin v. Goncalves, 2014 ONSC 7297 (Master), at para. 48.
[11] At para. 12.
[12] The excerpt is drawn from para. 20.
[13] At para. 41.
[14] At page 7 of her report.
[15] The excerpt is drawn from p. 20 of Dr. Sequeira’s report.
[16] See, too, Younan v. Persaud, 2011 ONSC 2129 (Master), at para. 14; Stetler v. Christmas, 2019 ONSC 1616 (S.C.J.), at paras. 18 – 19.
[17] See, too, Sivagnanasuntharam v. Wong, 2021 ONSC 2100 (S.C.J.), at para. 31.