Court File and Parties

COURT FILE NO.: CV-17-72562 DATE: 2024-04-10 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Rafik Yasso and Adam Adel Hind, Through his Litigation Guardian Rafik Yasso, Plaintiffs AND: Louis J. Blais, Defendant

BEFORE: Associate Justice Marie Fortier

COUNSEL: Joseph Griffiths on behalf of Elise J. Hallewick, counsel for the Plaintiffs Jason Meloche on behalf of Nawaz Tahir, counsel for the Defendant

HEARD: January 16, 2024

Endorsement

[1] The defendant brings a motion seeking an order that the plaintiff Rafik Yasso (the “plaintiff”) undergo an independent examination by a neuropsychologist and, as well, an independent medical examination by a physiatrist, pursuant to s. 105(2) of the Courts of Justice Act R.S.O. 1990, Chap.C.43 and Rule 33.02 of the Rules of Civil Procedure R.R.O. 1990 Reg.194. The plaintiff opposes the motion.

Background

[2] The plaintiff was injured in a motorcycle accident involving the defendant which occurred on June 22, 2015. This proceeding was commenced in May of 2017.

[3] Examinations for discovery were completed in the fall of 2017 and a mediation took place in February 2019. A pre-trial was held before Ryan-Bell J. on January 9, 2023. Due in part to the absence of defence medical reports, the judicial pre-trial was not successful. The pre-trial judge endorsed at the conclusion of the pre-trial:

“Parties to obtain a case conference date through the case conference office to address timetabling and scheduling of the defendant’s motion for IME’s. Matter to be added to the TMC list for September 27, 2023.”

[4] Counsel advise that all parties attended Trial Management Court for this matter on September 27, 2023, at which time Labrosse J. directed that the present motion concerning defence independent medical examinations (“IMEs”) was to be brought on forthwith and that the trial is now scheduled for March 24, 2025, for 3 weeks, with a further pre-trial to occur in January of 2025.

Status of the Action and Plaintiff’s Expert Reports

[5] The Statement of Claim alleges that the plaintiff sustained permanent and serious disfigurements and/or serious impairment of an important physical, mental or psychological function. The plaintiff alleges that, as a result, he has suffered non-pecuniary damages, a loss of housekeeping and handyman capacity, a loss of caregiving ability, economic loss and has incurred past care costs which will extend into the future, as well as out of pocket expenses.

[6] The plaintiff is claiming $250,000.00 in general non-pecuniary damages, $500,000 in future care costs, $50,000.00 in damages for past loss of income, damages for future loss of income of $1,500,000.00 and additional amounts in special damages. The plaintiff’s son also claims damages under the Family Law Act, R.S.O. 1990 c. F.3.

[7] The plaintiff has previously obtained and served the reports of medical experts under Rule 53 of the Rules of Civil Procedure. In particular, the plaintiff obtained a “Pain Medicine Assessment” prepared by Dr. K. Smith, M.D., F.R.C.P. (C), served in April of 2019 and a “Neuropsychological Assessment Report” prepared by Dr. K. Payne, C. Psych., which was served in March of 2021 and a further report from Dr. Payne in June of 2022.

[8] In addition, the plaintiff has obtained and served an expert accounting report, dated July 1, 2021, in which the authors offer the following opinion: “As a consequence of his accident related injuries and their sequelae, he[the plaintiff] is partially and permanently disabled from gainful employment in a competitive employment environment, and is no longer able to work at his pre-accident earning capacity.” The accounting report calculated the plaintiff’s past income loss to be between $49,979 and $172,095 and the future income loss to be between $586,977 and $1,796,137.

Position of the Parties

[9] The defendant is seeking an order requiring the plaintiff to attend an independent neuropsychology medical examination and undergo an independent physiatrist medical examination by a physiatrist. The defendant has not been able to obtain such reports to date, for the reasons outlined below.

[10] The defendants submit that they have a procedural and substantive entitlement to have the plaintiff undergo appropriate independent medical examinations on behalf of the defence, in accordance with s. 105 of the Courts of Justice Act. For this purpose, they have retained both a neuropsychologist and a physiatrist, both of whom practise in Ottawa. The plaintiff’s position, on the other hand, is that he should not be required to attend for these two defence medical examinations because he has attempted to attend several defence medical examinations in the past that did not proceed through no fault of his own and partly due to these experiences he finds that being required to discuss the accident and thinking about attending such examinations has become a triggering event for his anxiety issues.

The Independent Medical Examinations

[11] The plaintiff does not suggest the defendants’ two proposed medical assessors are inappropriate in relation to their areas of expertise or with respect to the medical issues which are before the court. Moreover, the defendant’s need for such experts to assess the plaintiff’s injuries and his level of recovery and to prepare their case is not disputed. Rather the plaintiff’s objection to cooperating by attending these defence medical assessments is based on his negative experiences and his anxiety or PTSD.

[12] The defendant emphasizes that the plaintiff has personally and without difficulty attended for an examination and assessment by his own medical experts, Dr. Payne and Dr. Smith, which enabled them to prepare their respective expert opinion reports.

[13] I will briefly review the problems which have arisen with previously arranged defence medical examinations in this case.

[14] After a considerable amount of back and forth between counsel, the plaintiff agreed to and did personally attend two defence IME’s, the first on September 15, 2022 with a Dr. West and the second on October 19 2022 with a Dr. Williams. In each case the plaintiff travelled for an hour from his home in a small community east of Ottawa. On September 15 he attended Dr. West’s office at the address he had been given by defendant’s counsel or by their agent in charge of making these arrangements. Upon arrival he was told that Dr. West was working that day out of another location on the other side of the city. The plaintiff made his way to the other location, arriving late for the scheduled appointment. Dr West refused to see the plaintiff because he was late, notwithstanding the confusion arose from the defendant’s agent’s lack of care in making the arrangements.

[15] Then on October 19, 2022, the plaintiff attended on Dr. Williams who, at the commencement of the examination, sought to have the plaintiff engage in a detailed discussion of the accident, something the plaintiff found he was unwilling and unable to do as he found it was extremely triggering for his anxiety problems. Dr. William’s attempt to engage in this discussion was made notwithstanding that he had been provided with a report from Dr. Payne, one of the plaintiff’s experts, explaining why re-visiting the accident could be detrimental to the plaintiff’s mental well being. Apparently, no report was obtained from this attendance.

[16] On March 4, 2023, the plaintiff attended an IME scheduled in Ottawa with Dr. Waisman from Toronto. Dr. Waisman did not show up, apparently having missed his flight from Toronto. No one told the plaintiff and he drove in from out of town and back home again. The same doctor was the subject of a later re-scheduled IME, for which Dr. Waisman again managed to not show up, resulting in a further pointless trip undertaken by the plaintiff.

[17] All of this has been very upsetting to the plaintiff and has been triggering for his anxiety issues. This has also resulted in delay and extra costs. On the defendant’s behalf it should be said that none of this has been deliberate, but the plaintiff is entitled to wonder if these problems could have been avoided with a reasonable level of care and oversight for the arrangements and for the plaintiff’s needs.

[18] In an effort to get the needed defence IME’s back on the rails, defence counsel arranged defence medical examinations with a neuropsychologist and a physiatrist, both Ottawa based clinicians, who agreed to assess the plaintiff at their Ottawa offices in August 2023. Defence counsel undertook in correspondence to plaintiff’s counsel that his client would arrange transportation services for the plaintiff, if requested, so that the plaintiff need not worry about parking or locating the doctors’ offices. Counsel also advised plaintiff’s counsel “ We have made the assessors aware of the previous terms – that they shall not ask your client about the accident itself, and that they are to confirm that they have read the report of Dr. Payne dated June 10, 2022, prior to the assessment”.

[19] The reference to Dr. Payne’s June 10, 2022, report apparently referred to observations in that report suggesting it was anxiety inducing for the plaintiff “when faced with the prospect of undergoing another assessment, consistent with an adjustment disorder with anxiety and panic attacks”.

[20] Notwithstanding the defendants’ encouragement and suggested accommodations, the plaintiff continues to take the position he will not attend any further defence IME’s without a court order.

Conclusion and Disposition

[21] I accept the defendants submission that notwithstanding the scheduling/logistical and communication problems that have arisen in the previous attempts to set up defence medical examinations in this case, there is no compelling reason why the plaintiff is unable to attend the defence independent medical examinations and fully and properly participate in them, so that all parties can have an equal footing when this matter proceeds to trial in March 2025, and the medical evidence needed to support their respective positions will be before the court.

[22] In my view, it is obviously necessary for the defendant in an action such as this to procure expert medical reports to prepare their case and to defend this action. In addition, such reports inform and assist the parties and the court in their assessment of the medical and economic loss issues and, importantly, to facilitate settlement discussions.

[23] Further, I find that the prejudice to the defendant, in going to trial without responding medical evidence, particularly to respond to the plaintiff’s reports from Doctors Payne and Smith, outweighs any inconvenience to the plaintiff. Trial fairness in this reasonably complex case requires that both sides are entitled to put forward necessary medical expert’s reports as contemplated by Rule 53 of the Rules of Civil Procedure.

[24] Accordingly, the defendant’s motion is allowed. Counsel are to agree on the terms of an order compliant with s. 105(2) of the Courts of Justice Act and with these reasons, directing the plaintiff Mr. Yasso to attend two defence medical IMEs in Ottawa on appropriate terms. If the specific terms of the order cannot be agreed to, counsel are to schedule a case conference before me to fix the terms of the order.

[25] The difficulties resulting in the need for this motion arise from problems and omissions for which both parties share responsibility and accordingly there will be no order as to costs.

Associate Justice Fortier Date: April 10, 2024