Court File and Parties
Court File No.: CV-19-00617799 Motion Heard: 20230628
Superior Court of Justice - Ontario
Re: Gonzalez v Dos Santos et al
Before: ASSOCIATE JUSTICE LA HOREY
Heard: June 28, 2023, via videoconference
Counsel: Zeitoon Vaezzadeh, for the Plaintiff Irene Maria Gonzalez Ada Lika, for the Defendant Cristina Dos Santos
Endorsement
[1] The plaintiff Irene Maria Gonzalez (the “Plaintiff”) and the defendant Christina Dos Santos (the “Defendant”) in this personal injury action each bring a motion regarding an independent medical examination (“IME”) with a psychiatrist, Dr. Brian Kirsh. The mediation in this action is scheduled for September 28, 2023. The pre-trial in this matter is scheduled for November 30, 2023, and the trial is scheduled to commence on February 5, 2024.
[2] The Defendant brings a motion to compel the Plaintiff to reattend and complete an IME with Dr. Kirsh. Dr. Kirsh has available a time slot of July 13, 2023, at 9:00 a.m.
[3] The Plaintiff opposes the motion and brings a cross-motion for an order compelling Dr. Kirsh to produce a report based on his medical assessment of the Plaintiff on August 16, 2022, pursuant to Rule 33.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[4] No party argued that leave of the court was required to bring these motions.
[5] It is not contested that the plaintiff has put her psychological condition in issue, having sought damages for alleged permanent and serious psychological and cognitive problems as a result of the accident.
[6] Given the available IME appointment of July 13, 2023, and the necessity of finalizing expert reports prior to the pending mediation, pre-trial and trial, this motion was booked as an urgent motion. Because of the urgency, and the need to get a decision out quickly, these reasons will be brief.
[7] Originally in issue on the motion was whether Dr. Kirsh would be allowed to question the Plaintiff about surveillance videos and reports if a second attendance is permitted. The parties have resolved this issue. It is agreed that Dr. Kirsh will not question the Plaintiff about surveillance in any future examination. It is also agreed that Dr. Kirsh will be able to refer to the surveillance video and reports in the report that he prepares.
[8] The Plaintiff included several documents under the title “External Authority” in her brief of authorities. These documents include information from the websites of the Cleveland Clinic, Ontario Association of Mental Health Professionals, and other medical organizations and an article from the Journal of Psychiatry & Law. Notably, the Plaintiff did not file an affidavit from a psychiatrist or psychologist attaching these documents. Prior to the commencement of argument on this motion, I brought the case of Doucet v The Royal Winnipeg Ballet (The Royal Winnipeg Ballet School) (2018 ONSC 2028) to the attention of counsel. After considering the matter, Plaintiff’s counsel advised that she is withdrawing her request that the journal article from the Journal of Psychiatry & Law be considered by me. The Plaintiff maintained her position that I could refer to the balance of the “External Authorities”. In my view, they are not properly before me, and I have not relied on any of the documents in the category of “External Authorities”.
[9] At the hearing, Plaintiff’s counsel asked for leave to submit a sealed affidavit from the Plaintiff which is said to include a text from the Plaintiff to a law clerk in the Plaintiff’s office. The Defendant refused to give any assurance that she would not take the position that privileged was waived if the affidavit was tendered. Over a break, the parties resolved the matter on the basis that the parties agree that the Plaintiff’s attendance at the IME appointment on August 16, 2022, lasted about three hours.
[10] I will deal with the other evidentiary issues arising on the motion in my analysis below.
[11] The Defendant says that the IME on August 16, 2022, was not completed because Dr. Kirsh was unable to complete the psychometric testing when the Plaintiff became overwhelmed emotionally. The Defendant sought to schedule the completion of the examination by making a request in writing about three months after the appointment and has repeated that request. The Plaintiff has refused to re-attend with Dr. Kirsh for the purposes of “completing the assessment” because she says that the assessment was completed.
[12] The Plaintiff’s cross-motion seeks an order that Dr. Kirsh produce his report from the August 16, 2022, examination within 30 days because she says the examination was completed, and Rule 33.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 is engaged. Rule 33.06 provides:
33.06(1) After conducting an examination, the examining health practitioner shall prepare a written report setting out his or her observations, the results of any tests made and his or her conclusions, diagnosis and prognosis and shall forthwith provide the report to the party who obtained the order.
(2) The party who obtained the order shall forthwith serve the report on every other party.
[13] Ms. Lika agreed that if I find that the IME was complete, the obligation of Dr. Kirsh to deliver a report under Rule 33.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 is triggered. As noted, the Defendant submits the examination was not completed.
[14] At the hearing, the Plaintiff consented to attend a second IME with Dr. Kirsh for the purposes of psychometric testing, subject to certain conditions. However, she maintains that because the IME was completed on August 16, 2022, Dr. Kirsh must first prepare his report which must be disclosed to the Plaintiff before she attends the second examination.
[15] The Defendant submits that defence medical examinations are an integral part of the discovery process where the physical and mental condition of the plaintiff is in issue and that trial fairness may be compromised where the plaintiff has obtained an expert opinion without the defendant being afforded the opportunity to obtain its own medical examination and report. I accept these general propositions.
[16] Bonello v Taylor (2010 ONSC 5723) sets out the leading principles for when a second or further examination by a health practitioner under section 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and Rule 33 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 may be ordered.
[17] The Defendant relies on the evidence of the legal claims manager for the insurer of the Defendant who attaches to his affidavit Dr. Kirsh’s letter to defence counsel dated April 15, 2023. In this letter Dr. Kirsh requests that the Plaintiff return for necessary and important psychometric testing that he was unable to complete on August 16, 2022, as the Plaintiff became completely overwhelmed emotionally during her attendance.
[18] The Plaintiff submitted two virtually identical affidavits, one for each motion. She filed her affidavit sworn June 7, 2023, on her motion. She filed her affidavit sworn June 14, 2023, in response to the Defendant’s motion.
[19] The appointment with Dr. Kirsh on August 16, 2022, was on consent. The Defendant had requested that the Plaintiff attend a psychiatry defence medical of between two and three hours duration. The parties agree that the attendance on August 16, 2022, lasted about three hours.
[20] In her affidavit, the Plaintiff describes her attendance with Dr. Kirsh on August 16, 2022. She deposes in her affidavit that she did not ask Dr. Kirsh to stop the examination prematurely. She says that she told Dr. Kirsh that she wanted to complete the assessment on that date and that it would be difficult for her to return. Her evidence is that neither Dr. Kirsh nor his staff told her during or after the assessment that the assessment was incomplete or that there was outstanding testing that needed to be done. The assessment lasted about three hours, which was the outside time limit for the assessment. Dr. Kirsh told her that once she received a copy of his report, she should give it to her family doctor and said that he was recommending a medication change and that consideration should be given to her attending a mental health facility. The Plaintiff believed that the assessment was complete. The first time it was suggested to the Plaintiff that the examination was not completed, was three months later when her lawyer received a copy of Dr. Kirsh’s letter of November 21, 2022, addressed to defence counsel asking for a second appointment. The Plaintiff was not cross-examined.
[21] The Defendant filed a responding record containing the affidavit of David G. Merner, sworn June 16, 2023. Mr. Merner is senior legal counsel with the in-house Legal Claims Department of Intact, lawyer for the Defendant, and one of Ms. Lika’s colleagues.
[22] Mr. Merner makes statements in his affidavit based on information from Dr. Kirsh and review of a website and states that he believes the facts to be true. The information from Dr. Kirsh includes what happened on August 16, 2022, when the Plaintiff attended Dr. Kirsh’s office. The affidavit also includes information about Dr. Kirsh’s qualifications, and the use of psychometric testing. He says that Dr. Kirsh advised him that he requires an opportunity to complete psychometric testing in order to finalize his report. Mr. Merner concludes his affidavit by saying the affidavit is made to provide the court with information about the qualifications of Dr. Kirsh with regard to the administration of psychometric testing of the Plaintiff. The Plaintiff had taken the position that Dr. Kirsh was not demonstrated to be qualified to conduct psychometric testing. As noted above the Plaintiff agreed at the hearing to attend Dr. Kirsh for psychometric testing, but only after receipt of a Dr. Kirsh’s report from the August 16, 2022 IME.
[23] The Plaintiff does not take issue with the admissibility of parts of the Merner Affidavit, namely paragraphs 1 – 3, the first three sentences of paragraph 4 and paragraph 13 (with the stipulation that the Plaintiff’s counsel first raised the issue of Dr. Kirsh’s qualifications on April 24, 2023). The Plaintiff does not object to Dr. Kirsh’s CV being put into evidence. The Plaintiff objects to the balance of the affidavit as inadmissible hearsay. The Plaintiff also objects to me receiving into evidence Dr. Kirsh’s letter of April 15, 2023, for the truth of its contents as being hearsay evidence attached to the affidavit of the claims manager.
[24] The Defendant submits that the entirety of the Merner Affidavit and Dr. Kirsh’s letter dated April 24, 2023, should be considered by me for the truth of their contents and that hearsay evidence on information and belief is specifically contemplated by Rule 39.01(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The Defendant also relies on Bonello v Taylor (2010 ONSC 5723) at paragraph 16 (v) where Justice D.M. Brown (as he then was) said:
(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;
[25] Although the situation is somewhat different, in that what is at issue here is whether the first examination was completed, not whether a second examination should be granted, the Defendant says that the principle applies, and that sufficient evidence has been tendered by the Defendant.
[26] In Nasir (Litigation guardian of) v Kochmanski (2013 ONSC 1391), the plaintiff brought a motion for production of a report from a paediatric neurologist who had conducted a defence medical examination. Justice Bielby considered the contents of letters from the expert, attached to an affidavit (presumably a lawyer’s affidavit), even though the letters were hearsay evidence. Although he considered the letters, Justice Bielby also said that the letters ought to have been attached to an affidavit from the medical expert herself. The court granted the plaintiff’s motion and ordered the expert to produce a report, notwithstanding statements in her letters that the examination of the plaintiff was incomplete and that she wished to withdraw from the case. The decision does not indicate what evidence was filed by the plaintiff on the motion.
[27] The Plaintiff, in her revised moving party factum, asked that an adverse inference be drawn as the Defendant did not provide an affidavit from Dr. Kirsh. At the hearing before me, Ms. Vaezzadeh asked that parts of the evidence be struck pursuant to Rule 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Given that this relief was not requested prior to the hearing, I decline to strike out the evidence, but will consider whether an adverse inference ought to be drawn and whether the impugned evidence should be given little to no weight in the circumstances.
[28] Rule 39.01(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides an exception to the general rule that hearsay evidence is not admissible. However, hearsay about contentious matters about which there is a serious dispute between the parties, or hearsay evidence submitted to avoid cross-examination on a material issue, should be struck out or disregarded as inadmissible evidence. (Price v Smith & Wesson Corp, 2021 ONSC 8471 at para 53 - 54; Aker Biomarine AS v KGK Synergize Inc., 2013 ONSC 4897 at paras 9 – 10)
[29] The question of whether Dr. Kirsh’s completed his examination of the Plaintiff, and the issue of whether Dr. Kirsh requires additional time with the Plaintiff for psychometric testing are contentious issues going to the heart of the motion. The Plaintiff filed direct evidence on the motion. She was not cross-examined. In these circumstances, the Defendant’s failure to file direct evidence from Dr. Kirsh is fatal to her motion. Whether I disregard Dr. Kirsh’s letter of April 23, 2023 (and his earlier letter of November 21, 2022) for the truth of their contents and the impugned portions of the Merner Affidavit or whether I accept them and give them little weight, the result is the same. I find that Dr. Kirsh completed the IME on August 16, 2022.
[30] Given this finding, Rule 33.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 requires Dr. Kirsh to produce his expert report, without waiting for a further attendance by the Plaintiff. I therefore grant the Plaintiff’s cross-motion. As Justice Bielby said in Nasir (Litigation guardian of) v Kochmanski, 2013 ONSC 1391, Dr. Kirsh is entitled to qualify his report as his professional ethics and his obligations as an independent expert require.
[31] However, this is not the end of the story. At the hearing, the Plaintiff agreed that if I refused the Defendant’s motion for a “continued” examination with Dr. Kirsh, she would nonetheless attend for psychometric testing with Dr. Kirsh after he has produced his report on the first examination. The Defendant is looking into August dates for the second IME with Dr. Kirsh. The parties agree that the Plaintiff is not to be asked about the surveillance and that the examination is to be at the expense of the Defendant with the Defendant paying for the Plaintiff’s transportation to and from the appointment, with the costs limited to $250. The Defendant has said that the examination will not be more than two hours.
[32] The Plaintiff was assessed by three psychologists in the context of her accident benefits claim. The Plaintiff has directed that they send the raw data from their psychometric testing to Dr. Kirsh. It is agreed that if Dr. Kirsh receives the data within the next two weeks, he can choose to complete his report of the August 16, 2022, examination with that data and forgo his own psychometric testing. If this is case, then he must produce his report 30 days after receipt of the raw data.
[33] If Dr. Kirsh wishes to conduct his own psychometric testing, then he shall complete his report on the first examination prior to the Plaintiff’s attendance for the second examination for psychometric testing. Dr. Kirsh shall have until August 14, 2023, to complete his report or such other time as the parties agree.
[34] The parties have agreed that the successful party is entitled to partial indemnity costs of $5,000 (all inclusive). As the Plaintiff was the successful party on these motions, she is entitled to partial indemnity costs of $5,000.
[35] Order to go in accordance with these reasons. If there is any difficulty with the form of the order, the parties may contact my Assistant Trial Coordinator for a teleconference.
L. LA HOREY, A.J. Date: June 28, 2023