COURT FILE NO.: CV-19-0367-00
DATE: 2023-08-28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JEREMY VERAN, SHAWN VERAN and RENEE VERAN
P. Harte, for the Plaintiffs/Respondents
Plaintiffs/Respondents
- and -
GEORGE DERBYSHIRE, JOHN MCPHERSON, RUSSELL CLARK, UDAY CHADHA, SUSAN GRAHAM, THERESA CLINTON, FRANCIS DENSON, RALPH SUKE, and THUNDER BAY REGIONAL HEALTH SCIENCES CENTRE
B. Morrison and M. Robin for the Defendants/Applicants
Defendants/Applicants
HEARD: July 6, 2023, at Thunder Bay, Ontario
Mr. Justice W. D. Newton
Decision On Motion
Overview
[1] Eight years after delivering their statement of defence and about nine months before a scheduled trial, the defendants move for an order that the plaintiff, Jeremy Veran, undergo a neuropsychological assessment.
[2] For the reasons that follow, the defendants’ motion is dismissed.
The Facts
[3] For the most part, the essential facts are not disputed.
[4] This is a medical malpractice action.
[5] The central liability issue is whether the defendant physicians failed to address Jeremy Veran’s neurologic symptoms as an infant and child. Jeremy was diagnosed with cerebral palsy. The plaintiffs allege that this was a misdiagnosis and that a correctable spinal abnormality was missed.
[6] The plaintiffs claim damages for pain and suffering, past and future care costs (including housekeeping and maintenance), loss of income, and damages pursuant to the Family Law Act.
Procedural History to Date
[7] The statement of claim was issued in August 2013 and amended in January 2015.
[8] These defendants delivered their statement of defence in August 2015.
[9] Examinations for discovery of the principal defendants and Jeremy’s parents took place between 2015 and 2016. The defendants did not examine Jeremy. No explanation is offered for not examining Jeremy then.
[10] The trial record was served in August 2018 and the action was transferred to Thunder Bay in July 2019.
[11] The parties agreed to a timetable for the exchange of expert reports that specified that all defence liability reports were to be served by June 30, 2022 and all defence damages reports by September 30, 2022. The plaintiffs’ damages reports were to be served by April 1, 2022.
[12] The first request to examine Jeremy was made on June 2, 2022. That examination took place over ZOOM on August 18, 2022 but was adjourned because of Jeremy’s communication challenges. Jeremy is a ventilator dependent quadriplegic.
[13] The examination was attempted again on September 21, 2022, but was adjourned again by defence counsel because of Jeremy’s communication challenges.
[14] A pretrial was scheduled for November 22, 2022, and all parties filed pre-trail briefs. Counsel for the defendants was unable to attend due to technical difficulties. The pretrial judge, Fitzpatrick J., directed that a case management hearing take place to set a timeline for a trial date.
[15] A case management conference was held on January 20, 2023, during which all counsel indicated that they were available for a trial commencing mid-April 2024. The endorsement notes:
The defendants have yet to conduct in person E/D on Jeremy Veran. This has delayed the delivery of the defence expert damages reports. Plaintiffs’ counsel have undertaken to assist in facilitating this ASAP. Defendants’ counsel will make best efforts to have the defence expert damage reports completed ASAP thereafter.
[16] On March 1, 2023, defence counsel provided dates for Jeremy’s in-person examination which was completed on April 17, 2023.
[17] On May 26, 2023, counsel for the defendants made their first request for a neuropsychological assessment.
[18] At the second trial management conference on June 7, 2023, counsel confirmed they were ready for a trial commencing spring or fall of 2024. It was noted that:
The defendants intend to bring a motion requesting that they be allowed to conduct a neuropsychological examination of the plaintiff. Two hours required. Defendants' counsel shall, in conjunction with plaintiff's counsel, contact the Thunder Bay trial coordinator to secure a date for this motion. Counsel are directed to include in the relief requested on this motion that a revised litigation timetable be ordered.
[19] This motion was dated June 19, 2023.
[20] On June 27, 2023, the trial was confirmed to start April 8, 2024, for eight weeks.
Evidence on the Motion
The Defendants
[21] Counsel for the defendants filed an affidavit of Ms. Di Bona, a law clerk in the office of counsel for the defendants.
[22] Attached as exhibits were the pleadings. The statement of claim does not allege a neuropsychological impairment. No issue of neuropsychological impairment is raised in the statement of defence.
[23] Jeremy’s discovery transcript was also filed as an exhibit.
[24] On discovery, Jeremy attributed his communication difficulties to his “meds” and his ventilator. He denied having any difficulties with short or long term memory. Not surprisingly, Jeremy had no memory of his early interactions with his treatment providers. He said that his earliest memories are from about age six, fishing.
[25] He demonstrated little ability to read, testified that he had never read a book of any kind on his own, and agreed that he has never been able to speak in complete sentences - only one or two words at a time. The transcript does record, however, that he answered with three or four words, once or twice.
[26] Also attached as an exhibit to Ms. Di Bona’s affidavit is the report of Dr. Miyanji, an orthopedic surgeon at BC Children’s Hospital, who was retained by the plaintiffs. Dr. Miyanji opined that Jeremy’s physical problems are attributable to an irreversible spinal cord injury as a result of the delay in diagnosis of his spinal instability. He states:
If the correct diagnosis had been made at any time prior to showing any progressive neurological injury/change, he would likely be significantly better than he is now. He would have likely retained motor function in his extremities, not breathing via a ventilator and been normal in function and health; certainly the delay in diagnosis of his unstable os odontoideum materially contributed to his present condition.
[27] Next, Ms. Di Bona attached the preliminary Future Care Cost Report from occupational therapist Angela Fleming, dated July 31, 2011, when Jeremy was 16. Ms. Fleming reviewed the medical records and interviewed Jeremy for two hours. She noted that, in 1995, Dr. Derbyshire (one of the defendants) described that Jeremy’s “social adaptive and expressive speech and language appear to be appropriate for his age.” In 2005 at the Hospital for Sick Children at age nine, Jeremy was described as having normal cognitive function. A year later, in 2006, a speech language pathologist noted that Jeremy was “difficult to understand for an unfamiliar listener” and noted that physical limitations did not allow him to produce sounds accurately.
[28] With respect to education, it was noted that Jeremy was in grade 10, that he was taking applied studies, and was very adept at computers. As he was doing well academically, the writer recommended vocational assessments.
[29] An updated report from Ms. Fleming dated March 31, 2022, completed when Jeremy was 27, was based on review of the updated medical and rehabilitation records and a videoconference with Jeremy and his mother. Ms. Fleming noted that, after finishing high school, Jeremy attended Durham College online and graduated with a diploma in Marketing, Small Business and Entrepreneurship. Jeremy has expressed a dream to open a hunting and fishing resort. Ms. Fleming states: “There is no question that Jeremy demonstrates the cognitive capabilities to run a business of his choosing and/or to be otherwise involved in the work force”. She observed that the limitations to employment are related to his physical care.
[30] Ms. Di Bona also attached the plaintiff’s economic loss report from JK Economics Inc. dated March 28, 2022. That report estimated Jeremy’s past and future income loss based on two scenarios: that Jeremy completed a two-year college diploma after high school and that Jeremy completed a four-year university bachelor’s degree. Calculations were on the basis of a normal and a reduced life expectancy based on the report of another expert, Dr. Empringham.
[31] A companion report from JK Economics Inc., also dated March 28, 2022, calculated Jeremy’s interdependent relationship losses assuming that, but for the injury, “Jeremy would have followed the typical marital path of Ontario men.”
[32] Also attached as exhibits are a string of email communications between counsel. Counsel for the defendants wrote on May 26, 2023: “Having now completed the discovery of Jeremy, we would like to have an assessment conducted by a neuropsychologist.” The proposed date was June 16. Counsel for the plaintiffs responded: “Our initial view is we are not inclined to agree to an assessment at this late stage in the litigation. Can you explain to me why the defendants require this information and I may reconsider my position.” The response from counsel for the defendants was: “Given Jeremy’s communication limitations, a neuropsychological assessment is necessary to determine whether and to what extent those limitations may be related to possible cognitive impairments.” The final response from counsel for the plaintiffs on May 29, 2023 was:
Your clients have known of Jeremy’s communication limitations and possible cognitive impairments for almost a decade. Leaving aside the relevance of a neuropsychological opinion, it’s simply too late in the process. Any assessment, and responding assessment, would almost certainly delay any trial in this matter. We are not agreeable to any further assessments of Jeremy.
The Plaintiffs
[33] The plaintiffs filed two affidavits: one from counsel and one from Jeremy’s mother.
[34] Counsel’s affidavit noted that the first request to examine Jeremy for discovery was made on June 2, 2022, less than four months before the deadline for delivery of the defence damages reports.
[35] Jeremy’s mother, Renee Veran, delivered an affidavit. She was not cross-examined. After setting out that this action arises out of the alleged negligence of the defendants in misdiagnosing Jeremy with cerebral palsy rather than a correctable spinal abnormality, she deposed that in January 2005, following a brain MRI, she was informed by Jeremy’s health care team that Jeremy did not have cerebral palsy or evidence of brain damage, but, in fact, had a spinal cord injury. The MRI report and a treatment team note were attached as an exhibit to her affidavit.
[36] She also deposed that she has never had any concerns with Jeremy’s cognitive abilities, nor has she been told by anyone that Jeremy has any cognition issues. She stated that Jeremy has always been in regular classes with an individual education plan to assist with his physical and speech impairments. The individual placement plan was to address physical disabilities only. The plan from June 2010 noted that Jeremy excelled in his academics and confirmed that he was placed in regular classes with direct support. His grade 8 report card was also attached as an exhibit. Final marks were in the 70s and 80s. His grade 12 report card was also attached as an exhibit. His marks were in the 80s and 90s and he earned the highest mark in environmental and resource management, a 93%. In 2017, Jeremy graduated, with honours, with a diploma from Durham College. His overall grade point average was 4.00.
Positions of the Parties
The Defendants
[37] The defendants submit that Jeremy should be required to undergo the neuropsychological assessment because:
(a) the defendants have a prima facie right to require Jeremy to submit to the requested neuropsychological assessment (the defendants rely upon Laforme v. Paul Revere Life Insurance Company[^1]);
(b) fairness requires that the defendants be able to test the plaintiffs' damages experts' assumption that Jeremy has no cognitive impairments;
(c) Jeremy's cognitive functioning is relevant to the issue of damages such that a neuropsychological assessment will provide helpful evidence to be considered by the triers of fact; and
(d) any alleged prejudice has been caused by the plaintiffs' refusal, and not by the defendant physicians' proposed timing.
The Plaintiffs
[38] The plaintiffs argue that:
(a) leave is required to bring this motion as the defendants consented to a timetable for delivery of expert reports, a pretrial date, and the setting of trial dates, and that there is no evidence of a substantial and unexpected change in circumstances justifying leave;
(b) there is no automatic entitlement to a first or subsequent defence medical examination;
(c) the defendants must demonstrate with evidence that the examination is likely to provide information relevant to the action; and
(d) in deciding whether to order a defence medical examination, the court should consider the factors of fairness, necessity and prejudice.
The Law
[39] Section 105 of the Courts of Justice Act[^2] states:
Physical or mental examination
Definition
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.
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.
Examiner may ask questions
(5) Where an order is made under this section, the party examined shall answer the questions of the examining health practitioner relevant to the examination and the answers given are admissible in evidence. [Emphasis added.]
[40] It is not accurate to state that a defendant has a prima facie right to obtain an order for an examination. The order 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.”
[41] Although Fehr v. Prior[^3] concerned a request for a further defence medical examination, Reilly J. summarized the intent of s. 105, reiterating the test as follows:
It is clear that as long as a person’s physical or mental condition is relevant to a material issue in the proceeding and there is good reason to believe that there is substance to the allegation raised by another party, a party to such litigation is entitled to at least one examination (physical or mental) by one health care practitioner.[^4] [Emphasis added.]
[42] In the Laforme decision relied upon by the defendants, the court stated:
In the present case, which has to do with disability insurance, the plaintiff has put his mental health in issue and, indeed, it is the crux of the dispute. There is no need, in such circumstances, for an affidavit from a psychiatrist or justification by way of evidence. The prima facie entitlement to the medical examination requested is there.[^5] [Emphasis added.]
[43] The prima facie entitlement arose from the fact that the plaintiff’s mental health was in issue, and, as the court stated, the purpose of s. 105 and Rule 33 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, is to "level the playing field".[^6]
[44] Because an order under s. 105 is discretionary, elements of fairness, necessity, and prejudice should be considered, particularly when, as in this case, the order is sought late in the proceeding and may delay a trial.
[45] In Klinck v. Dorsay,[^7] Ryan Bell J. provided a helpful analysis for ordering first examinations under s. 105. Ryan Bell J. ordered that a plaintiff (and his parents) undergo genetic testing. She was satisfied there was “a reasonable possibility” that the genetic testing would provide “cogent evidence” and that the “elements of fairness, necessity, and prejudice weigh in favour of the requested testing.”[^8]
[46] In Klinck, the defendants had specifically pleaded that the plaintiff’s condition was caused by, or a result of, genetic conditions and, on the motion for an order for testing, the defendants had served affidavits and reports from experts which satisfied the motion judge that the “possibility of a genetic cause” for the plaintiff’s injuries was “not frivolous”.[^9] Noting that the court retains discretion to order any medical examination, Ryan Bell J. went on to consider the factors of fairness, necessity, and prejudice.
[47] Similarly, in Godin v. Goncalves,[^10] a defence neuropsychological assessment was ordered in addition to other defence assessments when the plaintiff’s experts identified a prior head injury and likely pre-existing cognitive impairments. The purpose of defence medicals was stated as: “[T]o put the parties on equal footing by allowing the defendant to meet the case advanced by the plaintiff and to respond to the allegations made by the plaintiff in the statement of claim.”[^11]
[48] In this case, no issue of neuropsychological impairment is raised in the statement of claim or the statement of defence. The evidence relied upon by the defendants does not raise any issue of neuropsychological impairment. The Future Care Cost report delivered 12 years ago notes that the medical records described Jeremy as having normal cognitive function. His problems with speech were attributed to physical limitations. When Jeremy was in grade 10, it was noted that he was taking “applied studies” and was “very adept” with computers. The updated Future Care Cost report noted that Jeremy finished high school and graduated from Durham College.
[49] The uncontradicted evidence from Jeremy’s mother is that she never had any concerns with Jeremy’s cognitive abilities, nor had she been told by anyone that Jeremy has any cognition issues. She deposed that his educational placement plans addressed physical disabilities only. The education plan noted that Jeremy “excels in his academics”. His grade 8 and grade 12 report card were exhibits and his grade 12 marks were in the 80s and 90s and it was noted that he earned the highest mark in environmental and resource management, a 93%. When he graduated from Durham College it was with Honours with an overall grade point average of 4.00.
[50] The request for a neuropsychological assessment came after the attempt to examine Jeremy for discovery that was not attempted until 2022, via videoconference, and 2023, in person. No explanation is given for the failure to examine Jeremy in 2015 and 2016, seven years earlier, when the other plaintiffs and defendants were examined. It could not come as a surprise to the sophisticated defendants and their experienced legal team that a ventilator dependent quadriplegic had communication challenges.
[51] Subsection 105(3) requires that “there is good reason to believe that there is substance to the allegation” of neuropsychological impairment to justify the examination. There is no evidence to support that allegation. The evidence is to the contrary.
[52] In Klinck, it was specifically pleaded that the plaintiff’s condition was caused by, or a result of, genetic conditions and the defendants had served affidavits and reports from experts which satisfied the motion judge that the possibility of a genetic cause was not frivolous. In this case, there is no pleading and no evidence to suggest that the possibility of a neuropsychological impairment is not frivolous.
[53] In assessing fairness, I acknowledge that this is a serious claim and if proven, the damages are substantial. As such, all avenues for discovery including, where appropriate, medical examinations, should be available to the defendants. The statement of defence was delivered eight years ago, in 2015. Discoveries, except of Jeremy’s, took place in 2015 and 2016 and there was no attempt to examine Jeremy for another six or seven years, until June 2022. There is nothing in the material relied upon by the defendants to suggest that Jeremy’s neuropsychological condition was raised as an issue until May 2023.
[54] While appropriate avenues for discovery should be available to the defendants, fairness dictates that those avenues for discovery should be pursued promptly. No explanation is given for the failure to discover Jeremy in 2015 or 2016. The suggestion that that the defendants were not aware of Jeremy’s communication issues until his in-person examination for discovery is contradicted by the information relied upon by the defendants. It is unfair now for the defendants to pursue an unpleaded and unsupported theory. It is, at this late stage, a “fishing expedition”.
[55] Further, the plaintiffs have not relied upon any neuropsychological reports. There is no need to “level the playing field”.
[56] Necessity requires the court to consider whether the moving party has demonstrated that the requested examination is warranted, that is, likely to produce information relevant to the action.[^12] In Klinck, the defendants had provided medical evidence that a genetic cause for the plaintiff’s injuries was a reasonable possibility. Such evidence is absent in this case.
[57] Notwithstanding that r. 33.02 provides that an order under s. 105 shall name the health practitioner to conduct the examination, the defendants have not identified which neuropsychologist is to perform the examination and how that testing is to be undertaken for a ventilator dependant quadriplegic.
[58] Mere speculation that there may be cognitive issues does not equate to “good reason” to believe that there is substance to the allegation. Necessity is not made out.
[59] Prejudice requires the balance of competing interests: the right of the defendants to “fairly and properly investigate”[^13] the plaintiffs’ claims and prejudice to the plaintiffs.
[60] In this case, the parties agreed to a timetable for the delivery of expert reports. The plaintiffs complied with the deadlines for the delivery of their reports. Defence damages reports were to be served by September 30, 2022. No request was made to examine Jeremy until June, 2022, four months before the deadline for delivery of the defendants’ damages reports and at least six years after the examinations of the other parties. Although it did not proceed because counsel for the defendants could not connect to the videoconference, the pretrial was to be held on November 22, 2022. Fitzpatrick J. directed the parties to participate in case management recognizing that a special date would be required for this lengthy trial. During case management on January 20, 2023, Fregeau J. noted that the defendants had yet to examine Jeremy for discovery and that this had delayed delivery of the defendant’s damages reports. By then, the defendants had twice tried to examine Jeremy by videoconference. Both attempts had failed because of his communication issues. The in-person examination was also aborted due to communication issues. The communication issues had been described in records made as early as 2011, if not earlier.
[61] The trial has been confirmed to start at a special sitting commencing April 8, 2024, for eight weeks. Allowing a defence medical examination at this stage will likely delay the trial as, invariably, the report will require a rebuttal.
[62] Having determined that there is not good reason to believe that there is substance to the allegation that Jeremy has some neuropsychological impairment, permitting such an examination will cause prejudice to the plaintiffs by delaying the trial.
[63] The elements of fairness, necessity and prejudice, therefore, weigh in favour of denying the request for an examination.
[64] The fairness, necessity, and prejudice factors also apply to consideration of whether to grant leave. Assessing these factors, in these circumstances, lead me to conclude that leave to bring this motion should also be denied.
[65] The defendants’ motion for an order directing Jeremy Veran to undergo a neuropsychological assessment is dismissed.
[66] The plaintiffs may make costs submissions, limited to four pages plus costs outline, within 20 days of the release of these reasons. The defendants’ response, subject to the same limitations, shall be received 10 days thereafter. If no submissions as to costs are received, then costs will be deemed settled.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: August 28, 2023
COURT FILE NO.: CV-19-0367-00
DATE: 2023-08-28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JEREMY VERAN, SHAWN VERAN and RENEE VERAN
Plaintiffs/Respondents
- and -
GEORGE DERBYSHIRE, JOHN MCPHERSON, RUSSELL CLARK, UDAY CHADHA, SUSAN GRAHAM, THERESA CLINTON, FRANCIS DENSON, RALPH SUKE, and THUNDER BAY REGIONAL HEALTH SCIENCES CENTRE
Defendants/Applicants
DECISION ON MOTION
Newton J.
Released: August 28, 2023
[^1]: Laforme v. Paul Revere Life Insurance Co., (2006), 2006 CanLII 81803 (ON SCDC), 84 O.R. (3d) 634 [Laforme]. [^2]: Courts of Justice Act, R.S.O. 1990, c. C.43. [^3]: [2006] O.J. No. 5244 [Fehr]. [^4]: Fehr at para. 5. [^5]: Laforme at para. 22. [^6]: Laforme at para. 14. [^7]: 2021 ONSC 6285, [2021] O.J. No. 4919 [Klinck]. [^8]: Klinck at para. 102. [^9]: Klinck at para. 76. [^10]: 2014 ONSC 7297, [2014] O.J. No. 6186 [Godin]. [^11]: Godin at para. 24. [^12]: Klinck at para. 86. [^13]: Klinck at para. 88.