Court File and Parties

COURT FILE NO.: CV-19-00081712 (Ottawa) DATE: 2024-05-01 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

RUTH AMEY CAMPBELL and JANICE DUNN Plaintiffs – and – FRANCHISE MANAGEMENT INC. c.o.b. as PANERA BREAD, PANERA BREAD, LTD., PANERA BREAD ULC and JESSICA CARSON Defendants

COUNSEL: Joseph Y. Obagi, for the Plaintiffs (Responding Parties) Charles Painter, for the Defendants (Moving Parties)

HEARD: 24 April 2024, at Ottawa (by video conference)

BEFORE: Mew J.

Reasons for Decision

(Defendants’ Motion for Assessment of Plaintiff to Determine Whether She is Able to Testify)

[1] Ruth Campbell was 84 years old when, on 8 September 2018, she fell and fractured her hip while on the premises of Panera Bread, where she had gone for lunch.

[2] On 17 October 2019, Ruth Campbell and her daughter, Janice Dunn, commenced this action against the corporate defendants and Jessica Carson, an employee of Panera Bread who, the plaintiffs allege, had made contact with Ms. Campbell’s left arm, causing her to tumble and fall over.

[3] Examinations for discovery of the plaintiffs were conducted on 28 August 2020 (Ms. Campbell) and 14 September 2020 (Ms. Dunn). The trial record was delivered by the plaintiffs on 26 May 2021.

[4] A pre-trial conference was held on 20 December 2023.

[5] A five-week trial before a judge and jury is scheduled to commence in Ottawa on 13 May 2024. Both liability and damages are in issue.

[6] On 9 April 2024, the solicitors for the plaintiffs delivered a report from Ms. Campbell’s family doctor, Dr. Lindsey Bartlett, which notes that Ms. Campbell was diagnosed with mixed dementia in 2020 and that over the past few years, “she continues to show signs of advancing dementia”. Dr. Bartlett expresses the opinion that Ms. Campbell “is not only an unreliable historian at her stage of the disease process, but that putting her in the position to testify would most likely cause her harm from a medical standpoint”.

[7] Dr. Bartlett’s report was dated 2 April 2024, but, as already indicated, was sent to the defendants’ solicitors under cover of an email on 9 April 2024 with the comment that the contents of the report are “self-explanatory”.

[8] Coincident with the delivery of Dr. Bartlett’s report, the plaintiffs’ solicitors advised that they would waive privilege in respect of videotaped statements taken from Ms. Campbell in contemplation of litigation. The existence of these videotaped statements was not disclosed to the defendants until December 2023. It is conceded by the plaintiffs that the videos should have been disclosed in earlier iterations of the plaintiffs’ affidavits of documents (although an itemised list of privileged documents was neither provided in the affidavits of documents, nor requested by the defendants’ solicitors).

[9] The defendants’ solicitors responded on 15 April 2024, expressing the view that Dr. Bartlett’s report raised serious concerns in respect of not only whether Ms. Campbell can or cannot testify at the trial of her personal injury action, but also whether, as a result of her dementia diagnosis, Ms. Campbell has become a party under a disability who should be represented by a litigation guardian, pursuant to Rule 7.01 of the Rules of Civil Procedure. The defendants’ solicitors notified the plaintiffs’ solicitors that they wished to have Ms. Campbell assessed by both a capacity assessor and a geriatric specialist to provide opinions on these two issues.

[10] While taking the position that Ms. Campbell is not in need of a litigation guardian and remains competent to give instructions, the plaintiffs’ solicitors took the position that the defendants could not compel a capacity assessment but that they were, nevertheless, prepared to consider permitting an assessment of Ms. Campbell to be undertaken by an independent assessor strictly on her ability to testify.

[11] The plaintiffs’ solicitors also obtained and delivered a further report from Dr. Bartlett, dated 17 April 2024, addressing Ms. Campbell’s ability to:

(a) properly instruct her legal counsel; and (b) understand and appreciate the consequences of her lawsuit.

[12] While Dr. Bartlett maintained her position that Ms. Campbell is not a reliable historian, often confabulating or mixing up facts, Dr. Bartlett said that she did not have concerns with respect to Ms. Campbell’s capacity to understand and instruct her lawyers or appreciate the consequences of her lawsuit.

[13] Notwithstanding this further report of Dr. Bartlett, on 19 April 2024, the plaintiffs’ solicitors advised the defendants that, out of an abundance of caution, they were making arrangements for a capacity assessment of Ms. Campbell to be conducted to assist them in determining whether the appointment of a litigation guardian is necessary.

Issues

[14] The parties now agree that the defendants should have the opportunity to have Ms. Campbell assessed to determine whether she can testify at trial. It has been agreed that this assessment can be carried out by Dr. Elizabeth Minerva Moore, a clinical psychologist and capacity assessor. However, the parties have been unable to agree on all of the conditions applicable to the conduct of Dr. Moore’s examination, and the uses to which her resulting report can be put (specifically, whether the report can be introduced into evidence at trial in respect of the issues of liability or damages).

[15] The other matter upon which the parties continue to disagree is whether the existence of the capacity assessment which the plaintiffs expect to obtain can be disclosed to the jury or provided to other witnesses at trial and, if so, whether any test results, data or other information relied upon by a capacity assessor should be disclosed in the litigation and made available to the damages experts.

[16] The two determinations – whether Ms. Campbell can or should give evidence, and whether she is a party under a disability, are directed at different aspects of this litigation. If the parties cannot agree, it will ultimately be up to the trial judge to determine whether Ms. Campbell should testify. Conversely, it will be for the plaintiffs’ solicitors, no doubt in consultation with Ms. Campbell’s family, to determine whether a litigation guardian should be appointed.

Examination by Dr. Moore

[17] The plaintiffs maintain that the use of whatever report or other evidence emanates from the examination of Ms. Campbell by Dr. Moore should be confined to determination of:

(a) Ms. Campbell’s capacity and ability to testify at trial; and (b) Whether testifying could cause Ms. Campbell harm.

[18] The defendants argue that Dr. Moore’s report, findings and opinions should be able to be shared generally with all of the expert witnesses scheduled to testify at trial. They make the same argument with respect to the capacity assessment report that has been commissioned by the plaintiffs’ solicitors.

[19] While the defendants acknowledge that Ms. Campbell was diagnosed with dementia as long ago as 2020, and that the nature and extent of her dementia has been the subject of subsequent reports, as well as the submissions of counsel made at the pre-trial, they allege that what has happened in the last few months since the pre-trial, culminating in the delivery of Dr. Bartlett’s report, represents a sudden and unexpected change in Ms. Campbell’s dementia.

[20] Mr. Painter, on behalf of the defendants, asserts that the defendants have been caught by surprise by Ms. Campbell’s rapid deterioration. The future care report delivered by the plaintiffs suggests annual recurring future care costs totaling $118,861.68. While the issue of dementia is noted within that report, it was not identified by the future care expert as a central concern driving Ms. Campbell’s future care needs. The defendants surmise that Ms. Campbell’s dementia may now be a far more significant factor influencing her future care costs than had previously been apparent. Relying on Cory J.A. in Cook v. Ip (1985), 52 O.R. (2d) 289 (C.A.), the defendants argue that without all relevant evidence available to the court, a fair determination of the nature, extent and effect of the injuries which may have been suffered by Ms. Campbell as a result of the defendants’ alleged negligence, and the appropriate measure of damages flowing from them, cannot be made.

[21] The plaintiffs, while acknowledging that Ms. Campbell’s dementia has worsened, argue that this should come as no surprise to the defendants. Both parties having agreed to their respective pre-trial conference memoranda being in evidence on this motion, the plaintiffs point to the defendants’ assertion that the incident is not the cause of Ms. Campbell’s cognitive deficits. The defendants argued in their pre-trial memorandum that:

Her dementia has worsened to the point where she now requires increased nursing care at the retirement home, and her family is in the process of choosing a long-term care home for her. While the Plaintiffs are trying to attribute her cognitive deficits to the Incident, there is absolutely no evidence to support that position in the extensive medical records.

[22] Indeed, in their pre-trial conference memorandum, the defendants made reference to the view expressed by an orthopaedic surgeon retained by the defendants that the plaintiff would have been required to transition to facility-based care within a few years notwithstanding the Incident, given her pre-incident health and subsequent diagnosis of dementia.

[23] The plaintiffs’ solicitors referred Ms. Campbell for a psychological evaluation by Dr. Allison Eades. In her report dated 25 July 2022, Dr. Eades wrote as follows:

I do acknowledge that two years following the index event, Ms. Campbell was diagnosed with possible vascular dementia and given the nature of this condition, she would have been experiencing some symptoms (e.g., cognitive changes) prior to her diagnosis. Although vascular dementia is unrelated to the index event, it is likely that without the sequelae of the accident, Ms. Campbell could have continued to enjoy a meaningful life and in fact – as prioritized by Ontario’s Dementia Strategy – with access to the appropriate support she would have been in a better position to live at home and participate in her community for significantly longer.

[24] What is abundantly clear is that Ms. Campbell’s dementia, and its possible course, has been a live issue for at least the last four years. While arguably not, to use Mr. Painter’s phrase, the “driving issue”, the possibility that Ms. Campbell’s condition would decline was manifest.

[25] The up-to-date clinical notes and records of her treating physicians, including Dr. Bartlett, will be available at trial. It is reasonable to suppose that, to the extent that the worsening of Ms. Campbell’s dementia is addressed in those records, the expert witnesses who testify at trial could be asked what, if any, effect recent developments would have on the opinions they have expressed.

[26] The defendants did not seek a report from a clinical psychologist or a gerontologist. The plaintiffs argue that they should not now be able to effectively get around the provisions of Rule 53 by having the evidence of Dr. Moore introduced as evidence not only on the question of Ms. Campbell’s ability to testify but, also, the substantive issues of liability and damages.

[27] In my view, it is too late for the parties to be seeking fresh expert evidence. This is particularly so where there has been no new medical diagnosis: Charron-Rix v. Rix and Freeman, 2023 ONSC 6630, at para. 35.

[28] Having so concluded, the following conditions, which I have based on some, but not all, of the proposed terms of assessment put forward by the plaintiffs, will govern:

(1) Ms. Campbell will be assessed by Dr. Elizabeth Minerva Moore for the purposes of preparing a report on whether Ms. Campbell has the capacity and ability to testify at trial and whether doing so would cause her harm. (2) The assessment will take place at the Stirling Park facility at a time and date to be agreed during the week of 6 May 2024. A support person may attend, provided that such person will not be a witness at trial and has no interest in the outcome of the trial. (3) The assessment itself, and any resulting findings or reports, are to be used for the sole purpose of determining Ms. Campbell’s capacity to testify. The defendants may not seek to introduce the report or even reference the fact that the assessment was conducted, unless it is in the context of a voir dire proceeding pertaining to the ability or capacity of Ms. Campbell. This term is effective regardless of whether Ms. Campbell is found by the trial judge to be incapable of testifying. (4) In the event that Ms. Campbell is found incapable of testifying, the jury shall be told that, due to the dementia diagnosis, Ruth Campbell has been found to be incapable of testifying. (5) Dr. Moore is permitted to review relevant medical records. (6) Dr. Moore shall not conduct any tests or record any findings that are not necessary for the determination of the issue of Ms. Campbell’s ability to testify, and whether doing so could cause her harm. (7) The assessment can be videotaped, provided that this is done unobtrusively with a static recording device. The recording may not be used for any purpose other than a voir dire proceeding pertaining to Ms. Campbell’s capacity or ability to testify. (8) The defendants will not distribute any aspect of the assessment, including Dr. Moore’s findings, the report and any recordings, to any third party, including any potential witnesses at trial. (9) The parties shall not seek to file or produce any report to the court, or elicit any evidence, that is not in strict compliance with the foregoing requirements.

Capacity Assessment

[29] Rule 7 of the Rules of Civil Procedure sets out the procedures for bringing or continuing a legal proceeding on behalf of a party under disability. “Disability” is defined in Rule 1.03 to mean, inter alia, as “mentally incapable within the meaning of s. 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding, whether the person has a guardian or not”. Among factors that can be considered in determining whether a party is under a disability, and, hence, requires a litigation guardian, one factor that should be considered is whether the person is able to choose, keep and instruct her lawyer. As Benotto J. noted in Calvert (Litigation Guardian of) v. Calvert (1997), 32 O.R. (3d) 281:

The capacity to instruct counsel involves the ability to understand financial and legal issues. This puts it significantly higher on the competency hierarchy [than decisions a person makes regarding personal matters such as where or with who to live].

[30] Lawyers have a professional responsibility to ensure that a client is competent to provide instructions. If the client who is a party to litigation is, or becomes incompetent, or if genuine concerns about the client’s competence emerge, the lawyers for the party must take reasonable steps to either satisfy themselves as to the client’s competence, or to have a litigation guardian appointed. Sometimes, as in the present case, the client will have executed a power of attorney for property. The nominated attorney for property will, in such circumstances, typically be put forward for appointment as the party’s litigation guardian.

[31] As a result of Dr. Bartlett’s recent reports and, possibly, the concern raised by the defendants, the plaintiffs’ lawyers have now decided to obtain a capacity assessment. However, the defendants argue that the capacity assessment, and any information on which it is based, including raw data, should be disclosed and admissible as evidence at trial.

[32] The plaintiffs take the position that, in the circumstances, the issue of Ms. Campbell’s ability to instruct her lawyers should attract the same privilege as any other communications between, or pertaining to, the relationship between lawyer and client, or the conduct of litigation on the client’s behalf.

[33] While there may be circumstances in which the need for the appointment of a litigation guardian is raised by an opposing party and opposed by the party said to be under a disability, that is not the case here. The plaintiffs’ solicitors have acknowledged their responsibility to ensure that Ms. Campbell is capable of providing them with instructions. But they take the position that how they discharge that professional responsibility is, essentially, a matter for them.

[34] I agree with the plaintiffs’ solicitors. Furthermore, it would, in my view, be an unwarranted incursion into both the plaintiffs’ solicitor-client privilege and litigation privilege to order production of the capacity assessment, and the source information upon which such assessment is based, to the defendants.

Disposition

[35] The court orders as follows:

(a) The defendants are granted leave to bring this motion; (b) The plaintiff, Ruth Amey Campbell, will undergo an assessment by Dr. Moore at her current place of residence to determine whether she is able to testify at the trial of this matter and whether testifying at trial would cause her harm. The terms pertaining to the examination by Dr. Moore and the delivery of her report are as set out in paragraph 28 of these reasons; (c) The findings, opinions and conclusions of Dr. Moore may not be shared with the defendants’ current Rule 53 medical-legal experts in this proceeding for the purposes of providing any evidence at the trial of this action, and/or for the purposes of cross-examination of witnesses at trial; (d) Should the plaintiffs obtain a capacity assessment of Ms. Campbell for the purposes of determining whether or not she is a party under disability, the plaintiffs will be required to disclose the existence of such a capacity assessment report as a privileged document, but, subject to further order of this court, will not be required to produce a copy of the report to the defendants or to disclose to the defendants any records, notes, findings, opinions or conclusions of the assessor.

Costs

[36] It was reasonable for the defendants to raise concerns after receiving Dr. Bartlett’s reports. That said, the possibility of Ms. Campbell’s dementia advancing was entirely foreseeable. To the extent that the defendants sought relief which would have permitted them to do indirectly what, three weeks before the trial, it would be too late for them to do directly – namely to obtain expert evidence on the scope and causation of Ms. Campbell’s dementia or its effect on the future care claims that she advances – the relief should not have been sought and has not been granted.

[37] The plaintiffs, while initially resistant to the suggestion of an independent medical assessment of Ms. Campbell’s ability to testify, ultimately agreed to do so, on terms which, although not all of them have been implemented, were not fundamentally unreasonable. The main sticking point in the terms was the defendants’ insistence that Dr. Moore’s report should be capable of being introduced into evidence, or referred to (other than in a voir dire proceeding). It was the pursuit of that option which led to the bringing of the formal motion, and, hence, the incurring of many of the costs related to that motion. In my view the defendants should be responsible for those costs.

[38] The defendants indicated that if awarded costs, they would seek $7,500. The plaintiffs said they would request costs of $10,000, payable forthwith.

[39] The court orders the defendants pay the plaintiffs costs of the motion, fixed in the amount of $7,500, within 30 days of the release of these reasons.

Released: 1 May 2024 Mew J.