BARRIE COURT FILE NO.: CV-20-1687 DATE: 20240606 CORRIGENDA: 20240607 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Dannel Cartwright Plaintiff – and – Paul David Smith Defendant

Counsel: James L Vigmond, for the Plaintiff/Responding Party Vanessa A. Tanner, for the Defendant/Moving Party

Heard: May 27, 2024

Reasons for Decision

(Text of Original Decision Has Been Amended – Change Appended)

MCKELVEY J.:

Introduction

[1] The defence in this action has brought this motion seeking the following relief:

1. An order to compel the plaintiff to attend a psychiatric medical examination to be conducted by Dr. Gary Chaimowitz on June 12, 2024;
2. An order extending the time for service of the psychiatry expert report to July 12, 2024;
3. An order for release for the foundation information, including raw data and test results from an examination by Dr. Behzat Mansouri, Dr. William Gnam and Dr. Vincenze Basile;
4. An order for this motion record to be sealed.

[2] At the hearing of this motion, the parties advised that they have now reached an agreement on the release of foundation information from the physicians. The defendant further advised that they were withdrawing the request for the motion record to be sealed.

[3] Thus, the issues to be addressed by me on this motion are the defence request to compel the plaintiff to attend at a psychiatric medical examination on June 12, 2024, together with an order extending the time for service of the psychiatric report to July 12, 2024.

[4] For the following reasons, I have concluded that the defence motion must be dismissed.

Background

[5] The plaintiff commenced this action on December 8, 2020. It appears to be a serious claim for damages. The prayer for relief is for 2 million dollars.

[6] Counsel for the defence served and filed a statement of defence on March 9, 2021.

[7] Examinations for discovery were held on August 24, 2021.

[8] A mediation was held on January 26, 2023.

[9] On December 6, 2023, Ms. Vanessa Tanner was retained on behalf of the defendant and delivered a Notice of Change of Lawyer.

[10] On January 18, 2024, the parties attended a pre-trial. At the pre-trial, Ms. Tanner requested an adjournment of the pre-trial conference in order to permit the defendant to obtain expert reports and prepare for trial.

[11] On January 23, 2024, Ms. Tanner wrote to the plaintiff’s solicitor and advised that she had scheduled a defence medical examination with Dr. Gary Chaimowitz who is a psychiatrist. The examination had been scheduled for February 26, 2024.

[12] On January 25, 2024, plaintiff’s counsel advised of their refusal to have the plaintiff attend at a psychiatric examination with Dr. Chaimowitz since the defendant had already retained Dr. Michael Ross as a psychiatric expert and had already served Dr. Ross’ report which is dated January 17, 2023.

[13] A follow up pre-trial in this action has been scheduled to take place on August 15, 2024. This case has been put on the September, 2024 Blitz List for trial which starts on September 9, 2024.

Statutory Framework

[14] Section 105 of the Courts of Justice Act provides as follows:

(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.

(4) The court may, on motion, order further physical or mental examinations.

[15] Rule 33.02 of the Rules of Civil Procedure provide as follows:

33.02 (1) An order under section 105 of the Courts of Justice Act may specify the time, place and purpose of the examination and shall name the health practitioner or practitioners by whom it is to be conducted.

(2) The court may order a second examination or further examinations on such terms respecting costs and other matters as are just.

Analysis

[16] Both parties agree that Bonello v. Taylor, 2010 ONSC 5723, sets out the applicable principles for further examinations. In that case, D.M. Brown J. (as he then was) makes clear that the overriding consideration on the question of an additional medical examination is trial fairness. He states at para. 15 as follows:

The right to respond to a plaintiff’s expert report is a substantive one, involving principles of trial fairness, as the Court of Appeal made clear in Rysyk v. Booth Fisheries Canadian Co. Ltd.:

It is plain that, if the defence proceeds to trial without the advantage of the examinations sought, it could be seriously prejudiced. Fairness in the conduct of this litigation seems to demand the defendants have the right now contended for, as, otherwise, the opinion of the plaintiff's expert in psychiatry and the plaintiff's own evidence would not be subjected to what is probably the best test and to a very great extent go unchallenged.

Although the determination of whether to order a second or further examination by a health practitioner must turn on the specific facts and equities of a case, a body of case-law has developed around when a second or further examination may be ordered under CJA s. 105 and Rule 33. The leading principles can be summarized as follows:

(i) The party seeking the order for a further examination must demonstrate that the assessment is warranted and legitimate, and not made with a view to delaying trial, causing prejudice to the other party, or simply corroborating an existing medical opinion;

(ii) A request may be legitimate where there is evidence that (i) the party’s condition has changed or deteriorated since the date of a previous examination, (ii) a more current assessment of the plaintiff’s condition is required for trial, (iii) the plaintiff served specialist reports from new assessors after the defendants had conducted their medical assessments, or (iv) some of the party’s injuries fall outside the expertise of the first examining health practitioner;

(iii) Some cases take the view that the need for a “matching report” – i.e. a report from a defence expert witness in the same specialty as a plaintiff’s expert – is not, in and of itself, a sufficient reason to order a further defence medical. In the circumstances of the present case I need not wade deeply into that question. That said, I would venture that trial fairness should operate as the guiding principle in this area, so if the plaintiff has decided that expert evidence from one specialty based on an examination of the plaintiff is relevant to the adjudication of her claim at trial, courts should be loathe to deny the defence a fair opportunity to respond with expert evidence from the same specialty based on an assessment of the plaintiff. Ordering further examinations may be just where they are necessary to enable the defendant fairly to investigate and call reasonable responding evidence at trial;

(iv) Where the request is for the examination of the plaintiff by a person who is not a health practitioner, such as a rehabilitation expert, the defendant must demonstrate that the proposed examination is necessary as a diagnostic aid to the health practitioner who is conducting the defence medical examination;

(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;

(vi) While fairness, or “creating a level playing field”, may constitute a legitimate reason for ordering a second examination, someone with knowledge of the evidence in the case must provide evidence of unfairness for the court to consider; and,

(vii) A court should consider whether the request for a further examination would impose an undue burden on the plaintiff in light of the number of examinations already conducted of her by the defence.

[17] In the present case, the only reason given by defence counsel for requesting an examination by Dr. Chaimowitz is that she has previously tried a case where Dr. Ross testified as an expert psychiatrist on behalf of her client, the defendant. In the supporting affidavit on this motion, the affiant states:

During the course of trial, it was Ms. Tanner’s opinion, and I verily believe to be true that Dr. Ross’ testimony at trial was tangential and that questions were put to Dr. Ross several times.

[18] In oral argument, Ms. Tanner confirmed that she is not alleging that Dr. Ross is incompetent or incapacitated. Her submission essentially is that Dr. Ross did not present as well as she had hoped. She invited me to review the transcript of Dr. Ross’ evidence from the trial in question.

[19] Having reviewed that transcript, I was of the view that Dr. Ross did tend to wander at times in his evidence and at some points was non-responsive to questions which were asked. For example, the following exchange occurred in his examination in chief:

Q. What is major depressive disorder?

A. I wanted to take a moment to do the part I forgot to do before. And I’ll tell you the (indiscernible) major depressive disorder.

Because we’re going to be talking about mental illness, it’s important to know a couple things in general about mental illness. I used to work at CAMH at the corner of College and Spadina in Toronto, and probably for 20 years they had a sign -- I worked there during my residency -- but for 20 years they had a sign on the front lawn basically that said that one in five people in Ontario is hospitalized for mental illness in their lifetime. And that figure, although the sign is gone, the figure remains pretty much the same. So, if you think about that, if you look two to your right and two people to your left, on average, one of the five people will be hospitalized for psychiatric reasons.

When we look at population work, which is of interest to me, what we see is that somewhere between a third and 40 percent of doctors’ office visits includes psychiatric symptoms related to anxiety, low mood, and whatnot. So, I just wanted to say that anytime we’re examining mental illness and (indiscernible), you have to understand that this arises in a context of a population.

And we have to understand that -- well, suicide, fortunately, is unusual, perhaps in Ontario. And we range, depending on each year, between 12 to 13 and maybe 15 or 16 people per 100,000; a very small number.

MR. DICK: Your Honour --

THE COURT: There’s an objection, just hold on.

MR. DICK: We’re well beyond the four corners of your report. We’re hearing new statistics that have never been shared before -- research that has never been shared in Her Honour’s report and I (indiscernible)

THE WITNESS: Okay, I apologize.

THE COURT: Yeah.

THE WITNESS: So, there’s lots of mental illness. I can’t remember your exact question, I’m sorry.

MS. TANNER: Q. What is major depressive disorder?

A. Yes. Classifications change over time. Back in the 60s and 70s we referred to reactive depression, which meant a person got a depression in reaction to something external. Today, we call that adjustment disorder, mostly.

Then we referred to things which were called endogenous depression. Endogenous means arising from within, or it also meant for reasons we don’t know. And so, that was our classification.

At some point, when we got to the fourth edition of the Diagnostic and Statistical Manual for mental disorders, they started calling adjustment disorder with depressed mood, which was one depressive thing. They started having dysthymia, which is similar low mood that pervades your personality, has been there for years, it’s not going away, but it spikes. It might be what we used to think of as a reactive depression; now we might think of adjustment disorder.

When they developed the book number four –

Q. The DSM?

A. They -- the DSM IV, they started called it major depressive disorder. They might have even started with the word major on the third edition, I can’t recall offhand. But you can skip the label. They don’t call major schizophrenia. So –

[20] While Dr. Ross took some time to address the question of mental illness generally in the population at large, his evidence on this issue might have had some relevance given that the plaintiff in this case apparently had some mental health issues prior to the motor vehicle accident in issue.

[21] And when it came to the important part of his opinion, I thought Dr. Ross was more direct and improved in his communications to the Court. As noted above, the plaintiff in the case he was dealing with had a pre-existing condition. Dr. Ross stated as follows in his evidence,

So, I took Ms. (name deleted) understandable, obvious, and to her no doubt bothersome, post-collision stress-related symptoms that arose from the accident, to be an exacerbation of the pre-existing adjustment disorder (indiscernible)

Q. I think -- I think you did.

A. Okay.

Q. But with respect to -- in terms of again with your summary, what about your prognosis for -- your diagnosis, prognosis, as to her going forward? Or her current state as of this time when you see her? That was probably poorly worded, but hopefully you understand.

A. What did I think of Ms. (name deleted) prognosis with regard to these symptoms when I saw her. I think that’s what you’re asking me.

Q. Yes.

A. I thought that her underlying condition was worsened by the accident. I felt that with proper treatment and the passage of time, she would get a whole lot better, and that she had a probably good -- very good prognosis….

[22] In reviewing the transcript of Dr. Ross’ cross-examination, I felt generally that he held his own while being cross-examined.

[23] While I acknowledge that Dr. Ross did have some communication issues at the trial in question, I am mindful that communication issues can sometimes be a two-way street. A good deal depends on the nature of the trial preparation by counsel. In the case before me, defence counsel will have considerable opportunity to address issues in Dr. Ross’ communication skills and to prepare him for giving evidence at trial. She will be able to discuss with Dr. Ross concerns she had regarding communication issues he had in giving evidence at the earlier trial. As a respected expert, I would expect Dr. Ross to pay attention to communication issues raised by defence counsel.

[24] As noted by the plaintiffs in this action, Dr. Ross is currently listed with the College of Physicians and Surgeon’s of Ontario as an active, licensed psychiatrist. He is also listed as an active psychiatric evaluator on the Canadian Society of Medical Evaluator’s website. According to his profile, Dr. Ross served many years on the Canadian Society of Medical Evaluator’s Executive and was president. He received the Michael Lacerte Award of Excellence in 2018. He has been accepted as a court qualified expert in psychiatry in both civil and criminal matters. He appears to be a respected expert in his field.

[25] The decision to retain Dr. Ross lies with the defendant who apparently had full confidence in his abilities at the time that he was retained. The decision to try and drop Dr. Ross as the defence expert and to replace him appears motivated solely by the change in counsel which occurred in December, 2023. In my view, a change in counsel does not justify a conclusion that there is a lack of fairness in holding the defence to its selection of Dr. Ross as an expert witness. As noted in the Bonello case, fairness or “creating a level playing field” may constitute a legitimate reason for ordering a second examination. Someone with knowledge of the evidence in the case before me must provide evidence of unfairness for the court to consider. In this case, defence will be able to call Dr. Ross as an expert who would appear to be a qualified expert. There is no unfairness created in my view by requiring the defendant to abide by the decision it made to retain Dr. Ross. No other reason for wanting another expert examination has been tendered in this case.

[26] Further, in the Bonello decision the Court notes that the party seeking a further examination must demonstrate that the assessment must not be to simply corroborate an existing medical opinion. While the defence has agreed not to call Dr. Ross if their request is granted, there is no evidence before me to suggest that Dr. Ross’ existing opinion is deficient in any way or that the new opinion will cover any new ground.

[27] In Ward v. Wright, 2024 ONSC 2701, Justice Rady dealt with a similar request to order further defence medical examinations. She found as follows:

In my view, a change in litigation strategy because of the appointment of new counsel is not a reasonable explanation, particularly this late in the litigation with an impending trial date.

[28] I am further concerned that allowing the defence request at this point would put the pre-trial and trial date in serious jeopardy. The defence states that Dr. Chaimowitz’s report would be available by July 12, 2024. But as noted by the plaintiff’s solicitor, depending on the content of the report from Dr. Chaimowitz, they may by necessity need to get further responding reports from not only their own psychiatric expert, Dr. Gnam, but possibly from other experts as well. In my view, this puts both the next pre-trial date and the trial date at risk, especially given that summer is a time when a number of experts may well be on holiday.

[29] This case dates back for close to six years. If it cannot be settled, it needs to be tried. A delay in this trial will cause real and non-compensable prejudice to the plaintiff. Given that Dr. Ross appears competent and able to testify, I have concluded that there is no unfairness here which requires a further medical examination.

[30] I agree with plaintiff’s counsel that if trial counsel are permitted to replace their experts due to previous shortcomings at an earlier trial, chaos in the justice system will ensue. Any time a new counsel is appointed they may favour retaining new experts they have more confidence in and experience with. In the absence of any compelling reasons, the defendant should be held to his choice of a psychiatric expert.

Conclusion

[31] For the above reasons, the defence motion is dismissed. I do order, however, that there is to be no reference to this motion at the trial of this action. The parties have agreed that the partial indemnity costs of the motion are $10,000 all inclusive. Unless there is reason to depart from an order for partial indemnity costs, I order that the defence pay to the plaintiff, the sum of $10,000 all inclusive as the costs of this motion. If counsel wish to make further submissions on costs, then an appointment may be taken out through the Trial Coordinator’s Office within thirty days of the release of these Reasons to set a date for an attendance before me to deal with the issue of costs. In the event that an attendance before me is necessary to deal with costs, then the parties at least two days prior to that hearing are to submit brief written submissions on the issue of costs.

Justice M. McKelvey

Released: June 6, 2024

Amendment

1. Paragraph [31] has been amended from its original text:

   For the above reasons, the defence motion is dismissed. The parties have agreed that the partial indemnity costs of the motion are $10,000 all inclusive. Unless there is reason to depart from an order for partial indemnity costs, I order that the defence pay to the plaintiff, the sum of $10,000 all inclusive as the costs of this motion. If counsel wish to make further submissions on costs, then an appointment may be taken out through the Trial Coordinator’s Office within thirty days of the release of these Reasons to set a date for an attendance before me to deal with the issue of costs. In the event that an attendance before me is necessary to deal with costs, then the parties at least two days prior to that hearing are to submit brief written submissions on the issue of costs.

   To now read as follows:

   For the above reasons, the defence motion is dismissed. I do order, however, that there is to be no reference to this motion at the trial of this action. The parties have agreed that the partial indemnity costs of the motion are $10,000 all inclusive. Unless there is reason to depart from an order for partial indemnity costs, I order that the defence pay to the plaintiff, the sum of $10,000 all inclusive as the costs of this motion. If counsel wish to make further submissions on costs, then an appointment may be taken out through the Trial Coordinator’s Office within thirty days of the release of these Reasons to set a date for an attendance before me to deal with the issue of costs. In the event that an attendance before me is necessary to deal with costs, then the parties at least two days prior to that hearing are to submit brief written submissions on the issue of costs.

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Dannel Cartwright Plaintiff – and – Paul David Smith Defendant REASONS FOR DECISION Justice M. McKelvey

Released: June 6, 2024