Court File and Parties

COURT FILE NO.: CV19-80949 DATE: 2024/01/29 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

J.E. and S.E. Plaintiffs – and – METROLINX and BOCA CONSTRUCTION LTD. Defendants

Counsel: Joseph Obagi and Christopher Obagi, for the Plaintiffs Brandon W. Orct, for the Defendant, Metrolinx No one appearing for the Defendant, Boca Construction Ltd.

HEARD: December 19, 2023 (By videoconference)

RULING ON MOTION

CORTHORN J.

Introduction

[1] The defendant, Metrolinx, brings this motion for an order requiring the injured plaintiff, J.E., to attend an in-person assessment with a psychiatrist. Several months prior to the date on which the motion was heard, the psychiatrist prepared a report based on a document review. Since that time, J.E. has attended for a second defence neuropsychological evaluation; J.E. did so on consent.

[2] The document review, and the request for an in-person assessment by the psychiatrist, stem from J.E.’s multi-week hospital admission in January 2023. During that admission and subsequent to his discharge from hospital, J.E. received and continues to receive treatment for psychiatric conditions with which he has been diagnosed.

[3] The trial of this action is scheduled to proceed before a judge and jury in late March 2024. In support of the motion, Metrolinx expresses concern about its ability to respond at trial to the evidence of the healthcare professionals from whom J.E. received and continues to receive treatment for his psychiatric conditions.

[4] J.E. has, on two occasions, attended a defence neuropsychological evaluation – with the same neuropsychologist each time. The first evaluation was conducted in 2022; the second, follow-up evaluation was conducted in late 2023.

[5] In support of the motion, Metrolinx distinguishes between psychiatrists and neuropsychologists in terms of their expertise to opine on J.E.’s psychiatric conditions.

[6] The outcome of this motion turns on (a) the case to which Metrolinx is required to respond; (b) the role of a participant expert at trial; and (c) the nature and the quality of the evidence filed in support of the motion.

Background

[7] In November 2017, J.E. was a student at the University of Waterloo. The incident giving rise to this action is alleged to have occurred on November 27, 2017. The plaintiffs are J.E. and his mother. They allege that, as J.E. was walking on the sidewalk of Ring Road, in the area of a Metrolinx bus stop, he was struck in the head by a bus stop sign. The plaintiffs allege the bus stop sign was protruding into J.E.’s path, as he travelled along the sidewalk.

[8] The defendant, Metrolinx, is incorporated pursuant to the Metrolinx Act, 2006, S.O. 2006, c. 16. The plaintiffs allege that Metrolinx is responsible for the management and integration of roads and public transit in the city of Waterloo, Ontario. The plaintiffs allege that Metrolinx was negligent in fulfilling its obligations regarding the maintenance and repair of the bus stop sign by which J.E. was struck.

[9] The other defendant, Boca Construction Ltd. (“BCL”), is described in the statement of claim as a landscape design and contracting company. The plaintiffs allege that BCL was negligent in fulfilling its responsibilities regarding the supply of labour and materials for the installation of the bus stop sign by which J.E. was struck.

[10] The action is scheduled to proceed to trial on March 24, 2024, for six weeks before a judge and jury. Set out below is a chronology of the proceeding:

• November 27, 2017 - The events giving rise to this action occur.
• July 30, 2019 - The statement of claim is issued.
• September 13, 2019 - Metrolinx serves its statement of defence and crossclaim, and jury notice.
• September 16, 2019 - BCL serves its statement of defence and crossclaim, and jury notice.
• May 25, 2020 - The plaintiffs are examined for discovery.
• June 24, 2020 - A representative of Metrolinx is examined for discovery.
• July 14, 2020 - A representative of BCL is examined for discovery.
• December 8, 2020 - The plaintiffs set the action down for trial.
• April 27, 2022 - At Metrolinx’ request, J.E. attends for the first of two days of a defence examination with neuropsychologist, Dr. Catherine Gow.
• April 28, 2022 - J.E. attends the second day of the defence examination with Dr. Gow.
• September 28, 2022 - A pre-trial conference is conducted.
• January 11, 2023 - J.E. is brought to The Ottawa Hospital (“the Hospital”), by the Ottawa Police. He is admitted pursuant to a Form 1 under the Mental Health Act, R.S.O. 1990, c. M.7.
• January 25, 2023 - Following an in-patient assessment of J.E., psychiatrist, Dr. Robert Swenson diagnoses J.E. with “Psychotic Disorder NOS (first episode psychosis)” and considers schizophrenia as a possible diagnosis.
• January 31, 2023 - J.E. is discharged from the Hospital, to live with his parents. As of the date of discharge, the diagnoses of J.E.’s conditions are “Psychotic disorder; depression”.
• June 2023 - The parties appear before Fortier A.J. on a motion by Metrolinx for an order requiring the plaintiffs to produce unredacted copies of the Hospital records. At the same time, the court hears a cross-motion by the plaintiffs for a limited sealing order and a limited publication order.
• November 23, 2023 - The decision of Fortier A.J. on Metrolinx’ motion is released; the motion is dismissed. In the same endorsement, the plaintiffs’ cross-motion is adjourned and an interim, limited publication order is granted. In the court’s endorsement, the plaintiffs are referred to by their initials. The cross-motion is adjourned to permit the plaintiffs to notify the media of the cross-motion in accordance with the relevant Practice Direction.

[11] Fortier A.J. heard the plaintiffs’ cross-motion in December 2023. As of the date of this ruling, a decision on the cross-motion remains under reserve.

[12] The plaintiffs brought a similar cross-motion in response to the Metrolinx motion now before the court. The plaintiffs and Metrolinx consented to an adjournment of that cross-motion so that (a) it may be heard by Fortier A.J., and (b) a single decision on the issue of a sealing order and a publication ban is made in this proceeding. Associate Justice Fortier will hear the cross-motion on a date to be scheduled by counsel in the usual manner.

[13] Pending the outcome of the plaintiffs’ two cross-motions, and given the interim ruling made by Fortier A.J., I refer to the plaintiffs by their respective initials. I do so both in the title of proceeding and in the substantive text of the ruling.

The 2023 Hospital Records

[14] I return, for a moment, to the chronology of the proceeding. Subsequent to his discharge from hospital, J.E. is followed by psychiatrists and a neuropsychologist, at the Hospital, as part of the First Episode Psychosis Program (“FEPP”). For example, on February 7, 2023, J.E. is seen by psychiatrist, Dr. Marco Solmi. On that date, Dr. Solmi records his diagnosis of J.E.’s condition to be “schizophrenia”.

[15] As part of the FEPP, J.E. undergoes treatment and/or an assessment with neuropsychologist, Dr. Mary Marquardt. A neuropsychological evaluation by Dr. Marquardt is conducted over two days in June 2023.

[16] In 2023, the plaintiffs produced two sets of records for J.E. from the Hospital (“the Records”). The first set was produced in March 2023; the second set was produced in the fall of 2023. The Records include at least thirteen entries for Dr. Marquardt, from April through July 2023. In addition, the Records include entries from four psychiatrists by whom J.E. was and/or continues to be seen at the Hospital.

The Defence Examinations

[17] The proposed defence examination is a three-hour, in-person assessment of J.E. by psychiatrist, Dr. Emily Gavett-Liu. On July 14, 2023, Metrolinx’ counsel requested that J.E. attend such an assessment. At that time, the assessment was scheduled for a date in the latter half of August 2023.

[18] Through his counsel, J.E. refused to attend an in-person assessment by Dr. Gavett-Liu.

[19] Under cover of a letter dated September 8, 2023, Metrolinx’ counsel served a report, dated June 16, 2023, prepared by Dr. Gavett-Liu. The report is titled, “Psychiatry Paper Review Report of Dr. Gavett-Liu” (“the Report”). Excluding appendices, the Report is 46 pages. A Form 53, acknowledgement of expert’s duty, signed by Dr. Gavett-Liu on June 13, 2023, was served together with the Report.

[20] In October 2023, Metrolinx’ counsel requested that J.E. attend a re-assessment by neuropsychologist, Dr. Gow. Through his counsel, J.E. consented to attending that examination. That consent was given without prejudice to J.E.’s right, on the motion now before the court, to take the position that he should not be compelled to attend both the neuropsychological re-assessment with Dr. Gow and an in-person assessment with psychiatrist, Dr. Gavett-Liu.

[21] The re-assessment with Dr. Gow was conducted over two days in late November 2023. As of the return date for this motion, Dr. Gow’s report from the re-assessment was not complete. Before completing her report, Dr. Gow was waiting to receive raw test data from the neuropsychological evaluation conducted by Dr. Marquardt in the summer of 2023.

The Motion

[22] Metrolinx served a motion record (dated October 4, 2023) and a supplementary motion record (dated October 10, 2023). The supporting affidavits in those records are from Tessie Kalogeras. Ms. Kalogeras is one of the lawyers of record for Metrolinx.

[23] The plaintiffs served a responding record (dated October 13, 2023). That record includes an affidavit from psychologist and neuropsychologist, Dr. Hiten Lad. An exhibit to Dr. Lad’s affidavit is a Form 53, acknowledgement of expert’s duty, executed by Dr. Lad in May 2021.

[24] At para. 6 of his affidavit, Dr. Lad says, “I have agreed to re-assess [J.E.] and intend to comment on issues of diagnosis/diagnoses from [J.E.’s] admission to hospital under section 17 of the Mental Health Act, including the etiology of [J.E.’s] condition(s) and the effects they may be having on him.” In addition to addressing his historical and continuing involvement in the action as an expert witness, Dr. Lad addresses the scope of expertise of clinical psychologists and clinical neuropsychologists.

[25] The original return date for Metrolinx’ motion was October 19, 2023. The motion was adjourned on consent because counsel for Metrolinx intended to cross-examine Dr. Lad. In addition, plaintiffs’ counsel requested an opportunity to examine Dr. Gow pursuant to r. 39.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”).

[26] Ultimately, Dr. Lad was not cross-examined and an examination of Dr. Gow did not take place. Instead, the plaintiffs consented to Metrolinx delivering an affidavit from Dr. Gow. Metrolinx served a second supplementary record (dated December 7, 2023). That record includes an affidavit from Dr. Gow and a third affidavit from Ms. Kalogeras.

[27] Dr. Gow’s affidavit was sworn on November 17, 2023. It pre-dates the two-day re-assessment conducted in the latter half of November 2023. In her affidavit, Dr. Gow responds specifically to the contents of Dr. Lad’s affidavit.

[28] In summary, Metrolinx relies on three affidavits from Ms. Kalogeras and the affidavit of psychologist and neuropsychologist, Dr. Gow.

[29] BCL was served with all of the motion documents. BCL did not deliver any responding materials and was not represented on the return of the motion.

The Issues

[30] Metrolinx requires leave to bring the motion at this stage of the proceeding. The plaintiffs consent to leave being granted in that regard.

[31] The substantive issue to be determined is whether Metrolinx has established that J.E.’s attendance for an in-person assessment with Dr. Gavett-Liu is necessary to level the playing field and to ensure that the proceedings are fair: Narouz v. Desjardins Financial Security, 2015 ONSC 540, 44 C.C.L.I. (5th) 279, at paras. 27-28; Martinez v. Dublin, 2018 ONSC 2619, at para. 7.

[32] The defence examination with Dr. Gavett-Liu was scheduled for January 25, 2024. [^1] Neither the plaintiffs nor Metrolinx wished to see that examination, if it proceeded, impact the March 2024 trial date. If the defence examination is ordered, the parties consent to a revised timetable for the exchange of experts’ reports.

Disposition

[33] For the reasons set out below, I find that Metrolinx has not satisfied the onus it bears on this motion. Metrolinx has not established that the in-person assessment with Dr. Gavett-Liu is necessary to permit Metrolinx to respond to the allegations in the statement of claim and/or to the records and reports served by the plaintiffs.

[34] The motion is dismissed.

The Law

[35] The plaintiffs raise J.E.’s physical or mental condition as a question in this proceeding. As a result, the court has the discretion, pursuant to s. 105(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), to order J.E. to “undergo a physical or mental examination by one or more health practitioners.”

a) Examinations Pursuant to s. 105 of the CJA

[36] In Bellamy v. Johnson (1992), 8 O.R. (3d) 591, the Court of Appeal for Ontario addressed whether a party undergoing a medical examination pursuant to s. 105 of the CJA has the right to record the examination. The court’s decision in that regard is not relevant for the motion before this court. The reasons of Doherty J.A. are, however, helpful in understanding the purpose defence medical examinations are intended to serve in a proceeding.

[37] First, it is important to remember that an examination ordered pursuant to s. 105 of the CJA is part of the discovery process. Rule 33 of the Rules governs motions of the kind now before the court; the provision of information to the party obtaining the order; preparation of a report by the examiner, service of the examiner’s report; and failure to comply with either an order made under s. 105 of the CJA or the requirement, under r. 33.04, for the party being examined to provide information.

[38] At p. 595, Doherty J.A. describes medical examinations as an “integral part of the discovery process where the physical or mental condition of a party to the proceedings is in issue.” Doherty J.A. discusses the importance of defence examinations to the defendant’s ability to learn the case it has to meet. At p. 596, Doherty J.A. says, “[w]ithout an effective medical evaluation, the defendant cannot know the case he or she must meet and the chances of a pre-trial settlement and a fair and effective trial must suffer.”

[39] In Narouz, at para. 28, Roger A.J. (as he then was) refers to Bernier v. Assan (2006), 33 M.V.R. (5th) 26 (Ont. S.C.), when stating that trial fairness involves not only responding to expert reports served on behalf of the plaintiff, but also to the allegations made in the statement of claim.

b) The Moving Party’s Evidentiary Burden

[40] In Nelson v. Thiruchelvam (2005), 21 C.C.L.I. (4th) 115 (Ont. S.C.), Haberman A.J. considers requests made by the defendants in two separate personal injury actions for the plaintiff to be examined by medical practitioners – three practitioners per action, for a total of six examinations. The plaintiff opposed each request.

[41] The decision in Nelson is relevant to the motion before this court because Haberman A.J. addresses requests for multiple examinations and the evidence required in support of such requests.

[42] As of the date on which the motion before this court was heard, J.E. had, at the request of Metrolinx, been examined twice by neuropsychologist, Dr. Gow – first in 2022, and again in November 2023. The request for J.E. to be examined by psychiatrist, Dr. Gavett-Liu falls within the category of multiple defence examinations.

[43] From the decision of Haberman A.J. in Nelson, the following principles emerge regarding the evidence the moving party must present to establish why the proposed examination is necessary to level the playing field (at paras. 21-22):

• The evidence in support of the requested examination must be “clear and compelling”;
• The moving party must make “some effort to demonstrate why an examination by [the] particular specialist is needed”; and
• At a minimum, “the evidence must explain why the particular examination is required” (citing Abergel v. Hyundai Auto Canada (2002), 43 C.C.L.I. (3d) 241 (Ont. S.C.)).

[44] Regarding the final bullet point listed above, at para. 22, Haberman A.J. says,

This means setting out the nature of the speciality of the proposed physician; indicating the type of evidence they can provide and explaining why it is necessary in the context of the injuries and symptoms complained of and the evidence already tendered by the plaintiff. In other words, what evidence will the plaintiff be calling at trial that must be addressed by this particular defence expert?

[45] Citing Abergel, Haberman A.J. refers to the responsibility of the court to consider not only fairness of the proceeding, but delay in and costs of litigation: at para. 25.

Analysis

a) The Case to Which Metrolinx Must Respond

[46] The case to which Metrolinx is called upon to respond includes, (a) the allegations in the statement of claim; (b) the contents of the records and reports from the treating healthcare professionals; and (c) the contents of the experts’ reports served on behalf of the plaintiffs.

i) The Pleadings

[47] The statement of claim in this action was issued in 2019 – more than three years prior to the January 2023 hospital admission. The injuries which the plaintiffs allege J.E. sustained as a result of the November 2017 incident are listed in para. 9 of the statement of claim as follows:

a. a concussion and post-concussion syndrome; b. severe headaches; c. muscle tension, pain in neck, legs, back and shoulders; d. cognitive and neurological impairments and limitations (particulars omitted); e. degenerative changes in neck and spine; f. difficulty performing physical tasks; g. irritability, depression and anxiety; h. social withdrawal; i. difficulty sleeping, sleep loss, low energy and fatigue.

[48] At para. 11 of the statement of claim, the plaintiffs allege that, as a result of the injuries sustained in November 2017, J.E. has suffered a loss of enjoyment of life, loss of amenities, loss of income, and loss of competitive advantage. Paragraph 11 concludes with the allegation that J.E. “has suffered from depression and anxiety since [November 2017] and is unable to focus.”

[49] The statement of claim makes no mention of the 2023 hospital admission or of a diagnosis of schizophrenia. The plaintiffs do not, at this time, seek leave to amend their pleading to include allegations related to J.E.’s January 2023 hospital admission and/or the psychiatric diagnoses he received in 2023. There is nothing before the court to suggest that the plaintiffs intend, at trial, to seek leave to amend their pleading in that regard.

[50] In its statement of defence and crossclaim, Metrolinx denies that any negligence on its part caused or contributed to J.E.’s injuries. The issue of causation is addressed, as follows, at para. 9 of the Metrolinx pleading: “In the alternative, if the plaintiffs sustained any injuries, damages or losses, which is not admitted but denied, then such injuries, damages or losses did not arise from the incident in question but from trauma from a previous accident, fall, illness, disease or other medical condition unrelated to the accident.”

[51] I find that, when the statement of claim is read together with the Metrolinx pleading, the pleadings do not, collectively, support a conclusion that an in-person assessment is required for Metrolinx to be able respond to the case it must meet.

ii) The Documents Produced

[52] The other component of the case to which Metrolinx is called upon to respond is found in the documents produced by the plaintiffs in fulfillment of their documentary disclosure obligation pursuant to the Rules and the experts reports served in accordance with Rule 53.

[53] The plaintiffs produced the Hospital records for J.E.’s January 2023 admission, the diagnosis of schizophrenia, and the treatment J.E. continues to receive from healthcare professionals at the Hospital. The plaintiffs have not served an expert’s report prepared by any one or more of a psychiatrist, neuropsychologist, or other healthcare professionals by whom J.E. was or continues to be seen at the Hospital in relation to the diagnosis of schizophrenia or other psychiatric conditions.

[54] Based on the plaintiffs’ productions and the experts’ reports served by the plaintiffs to date, if a healthcare professional involved in the diagnosis and treatment of J.E.’s psychiatric condition(s) is called by the plaintiffs to give evidence at trial, that individual will do so in the capacity of a participant expert. In a later section of this ruling, I will address the role of participant experts at trial.

[55] There is no evidence to suggest that Metrolinx’ request for the in-person assessment with Dr. Gavett-Liu stems from any records other than those of the Hospital from January 11, 2023 forward.

iii) The Experts’ Reports

[56] I next consider the experts’ reports served by the plaintiffs to date and those which they intend to serve prior to the commencement of trial in March 2024.

[57] There is no evidence to suggest that the plaintiffs served an expert’s report from a psychiatrist or from any other healthcare professional, retained specifically for the proceeding, in which the expert opines on either (a) J.E.’s psychiatric condition from January 2023 forward, or (b) whether the November 2017 incident caused or contributed to J.E. experiencing those psychiatric condition(s). The plaintiffs do not, however, intend to leave that issue unaddressed.

[58] Based on the responding affidavit of psychologist and neuropsychologist, Dr. Lad, I make the following findings. First, the plaintiffs intend to have J.E. re-attend with Dr. Lad and, following that attendance, serve a further report from Dr. Lad. Second, the plaintiffs anticipate Dr. Lad will, in his report, (a) comment on issues of diagnosis/diagnoses arising from J.E.’s January 2023 hospital admission, and (b) address the etiology of J.E.’s conditions and the effects they may be having on him.

iv) Summary

[59] The case to which Metrolinx is called upon to respond includes:

• A statement of claim in which the plaintiffs do not allege that the November 2017 incident caused or contributed to the development of the psychiatric condition(s) with which J.E. was diagnosed in 2023;
• The evidence of the treating healthcare professionals from the Hospital, who, if called to give evidence at trial, will testify in their respective capacities as participant experts; and
• An expert’s report from psychologist and neuropsychologist, Dr. Lad, in which he intends to address the diagnoses J.E. received in 2023, the etiology of those conditions, and how those conditions may be affecting J.E.

[60] There is no evidence to suggest that the plaintiffs intend to retain a psychiatrist, as a litigation expert, to prepare either a paper review report or an examination-based report, addressing the issues it is anticipated Dr. Lad will address in his report.

[61] I turn next to consider the contents of the Records and the potential evidence at trial from the treating healthcare professionals.

b) The Participant Experts

[62] At para. 31 of her first affidavit, Ms. Kalogeras summarizes the basis for the request to have J.E. attend an in-person assessment with Dr. Gavett-Liu: “Counsel for Metrolinx [is concerned] about Metrolinx’s ability to defend any evidence presented at trial by the treating psychiatrists … Consequently, Metrolinx would need an opinion from a psychiatrist.”

[63] If called to give evidence at trial, the healthcare professionals from the Hospital, involved in the diagnosis and treatment of J.E.’s schizophrenia and other psychiatric conditions, will testify in the capacity of a participant expert. What does it mean to be a “participant expert”?

[64] In Westerhof v. Gee Estate, 2015 ONCA 206, 124 O.R. (3d) 721, at paras. 60-61, Simmons J.A. defines the term “participant expert” as follows:

I conclude that a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53.03 where:

• the opinion to be given is based on the witness’s observation of or participation in the events at issue; and
• the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.

[65] Justice Simmons emphasizes the importance of the court’s gatekeeper function in relation to opinion evidence from participant experts and non-party experts. At para. 64, he says,

In exercising that function, a court could, if the evidence did not meet the test for admissibility, exclude all or part of the opinion evidence of a participant expert or non-party expert or rule that all or part of such evidence is not admissible for the truth of its contents. The court could also require that the participant expert or non-party expert comply with rule 53.03 if the participant or non-party expert’s opinion went beyond the scope of an opinion formed in the course of treatment or observation for purposes other than the litigation.

[66] In none of the affidavits from Ms. Kalogeras and Dr. Gow, does either affiant identify any specific contents of the Records which give rise to the concern expressed by Ms. Kalogeras regarding Metrolinx’ inability to respond. For example, it is not suggested by either Dr. Gow or Ms. Kalogeras that any one of the treating healthcare professionals has, in the Records, expressed an opinion as to any potential causal link between the November 2017 incident and the diagnosis of schizophrenia.

[67] In her report, included as an exhibit to one of the Kalogeras affidavits, Dr. Gavett-Liu refers to “comments” made by J.E.’s treating healthcare professionals, in the Records, about the possibility that J.E.’s prior traumatic brain injury contributed to the presentation as of January 2023. Dr. Gavett-Liu cautions that treating psychiatrists frequently do not have sufficient information to provide them “a true understanding of the nature or severity of prior TBIs.”

[68] In summary, the substantive contents of the Kalogeras and Gow affidavits, and the exhibits attached to those affidavits, do not support a finding that any one of the treating healthcare professionals from the Hospital expressed an opinion about the possible contribution of the November 2017 incident to J.E.’s presentation and/or psychiatric condition from January 2023 forward. The Records may, however, include “comments” in that regard.

[69] The inclusion of such comments in the Records does not guarantee the admission into evidence at trial of an opinion on that subject from a participant expert. It will be up to the trial judge to exercise their gatekeeper function. Metrolinx may request that the trial judge order any treating healthcare professional who testifies to restrict the scope of their evidence to that of a participant expert (unless the healthcare professional has otherwise fulfilled the obligations of an expert witness, including by completing a Form 53).

c) The Grounds in Support of the Necessity of the In-person Assessment

[70] An affidavit from the healthcare professional with whom the proposed examination is to take place is preferred, not required: Bernier, at para. 34, citing Beaudoin A.J. (as he then was) in Grant v. Keane (2001), 37 C.C.L.I. (3d) 278 (Ont. S.C.), at para. 18, aff’d [2001] O.J. No. 4914 (Div. Ct.).

i) The Documents from Dr. Gavett-Liu

[71] Metrolinx did not file an affidavit from Dr. Gavett-Liu. The only documents before the court from Dr. Gavett-Liu are two exhibits to the Kalogeras affidavits: the Report and a single-paragraph letter from Dr. Gavett-Liu. The letter is dated September 8, 2023; it is addressed to Ms. Kalogeras (“the Letter”).

▪ The Report

[72] Nowhere in the Report does Dr. Gavett-Liu say that, in order for her to respond to the contents of the Records, an in-person assessment of J.E. is necessary.

[73] In the first 36 pages of her report, Dr. Gavett-Liu addresses matters such as her profile; the acknowledgement of expert’s duty form; her documentation review protocol; and a “Current File Summary”. In the latter section, Dr. Gavett-Liu reviews in detail the records and reports produced to date. The topics covered in that section of the Report include J.E.’s personal history, education and vocational history, medical history, substance use history, and current medications; a history of the subject loss; and J.E.’s post-loss physical symptoms, post-loss psychiatric and neuropsychiatric symptoms, and current functional ability.

[74] Dr. Gavett-Liu begins the Report by stating the reason for referral: “At the request of Tessie Kalogeras, of Beard Winter LLP, a paper review was conducted to assess for psychiatric diagnoses and related impairments, address causation, as well as address specific questions.” Eight specific questions were posed; the questions are answered at pp. 37-45 of the Report.

[75] When answering the referral questions, Dr. Gavett-Liu expresses her opinion on matters including whether, as a result of any injury sustained in the November 2017 incident, J.E. will require assistance with self-care; assistance with home care; medication; other healthcare; further treatment; and further therapy. Dr. Gavett-Liu’s opinion is that, from a psychiatric perspective, J.E. will require none of those items.

[76] In answer to the question whether J.E. will, because of any injury sustained in the November 2017 incident, require medication or other health care in the future, Dr. Gavett-Liu answers in the negative. She also states, “[i]n my opinion, [J.E.’s] psychosis that developed in January 2023 is unlikely related to the injury sustained on November 27, 2017.” When expressing that opinion, Dr. Gavett-Liu does not place any caveat on the opinion or identify that she was hindered in any way because she did not have an opportunity to assess J.E. in person.

[77] At referral question no. 7, Dr. Gavett-Liu is asked, “[w]hat is [J.E.’s] diagnosis as a result of the incident on November 27, 2017?” The answer to that question spans three full pages of the Report. More than two pages of the answer consist of a review of records from the post-incident period and of Dr. Gow’s report of the two-day neuropsychological examination conducted in April 2022.

[78] In the final two paragraphs of the three-page answer, Dr. Gavett-Liu expresses her opinion in response to referral question no. 7:

Based on a review of the available documentation, including the records highlighted above, [J.E.] does not currently meet the threshold for a psychiatric diagnosis as a result of any injury related to the subject loss. There is documentation indicating that [J.E.] has experienced symptoms of depression and anxiety in the time following the subject loss, however, these symptoms have not been consistently present, and there is no evidence to suggest they correlate with subject loss related concerns. Furthermore, despite the presence of psychiatric complaints intermittently, there does not appear to have been any period of time where these symptoms were of a sufficient concern to [J.E.] to make an effort to participate in active treatment for an adequate period of time in contrast to his avid pursuit of physical rehabilitative treatments.

It is noted that [J.E.] was hospitalized in January 2023 and diagnosed with “schizophrenia”; however, due to reasons outlined in the response to question 8 below regarding causation, this diagnosis is not attributable to the subject incident.

[79] When responding to referral question no. 7, Dr. Gavett-Liu does not indicate she was limited in her ability to express an opinion because she did not have an opportunity to assess J.E. in person.

[80] The eighth and final referral question requires Dr. Gavett-Liu to “comment on causation with respect to [J.E.’s] psychiatric presentation, generally and as reported in the more recent medical records, in relat[ion] to the incident on November 27, 2017.” The response to that question spans three pages. In her response, Dr. Gavett-Liu addresses three points.

[81] First, Dr. Gavett-Liu expresses an opinion that J.E.’s persisting symptoms of light headache and light fatigue, as of the April 2022 defence examination by Dr. Gow, in combination with J.E.’s reported absence of other symptoms suggest “that [J.E.] was not experiencing any diagnosable psychiatric condition as of April 27 and 28, 2022, related or unrelated to the subject loss.”

[82] Second, as noted in para. 61, above, Dr. Gavett-Liu expresses the opinion that caution is required in regard to “comments” from the treating healthcare professionals about the possible contribution of the November 2017 incident to J.E.’s presentation in January 2023.

[83] Third, Dr. Gavett-Liu addresses the link between cannabis use and the onset of a psychotic illness. Her opinion in that regard includes a chart comparing the clinical features of idiopathic versus cannabis-induced psychosis. Including the chart, Dr. Gavett-Liu’s opinion on the subject comprises a full page of the report. The substantive text of her opinion is as follows:

There is little consensus in the medical community as to whether a traumatic brain injury may cause a chronic psychotic illness or schizophrenia. In contrast, substance use, such as use of cannabis, is clearly linked to the onset of psychotic illnesses, with scientific literature documenting increasingly higher rates of psychosis with increasing use of cannabis. At the time of the onset of psychosis noted above, [J.E.] had been utilizing cannabis heavily, and had also been under the influence of other substances. [J.E.’s] records also reflect the presence of many of the early symptoms of schizophrenia including withdrawal from friends and family, declining school performance, irritability, and amotivation; however, none of these symptoms appeared to be severe or disabling. In addition, he was at the age that the onset/development of schizophrenia is most common in males. The table below outlines the clinical feature of idiopathic versus cannabis-induced psychosis.

[Chart]

Based on the available documentation, and current medical consensus, there is no compelling information to opine that the subject incident resulted in the episode of psychosis experienced in January 2023.

[84] Once again, Dr. Gavett-Liu does not place any caveat on the opinion expressed or state that she was hindered in responding to the question because she did not have an opportunity to assess J.E. in person.

▪ The Letter

[85] The only other document from Dr. Gavett-Liu is the Letter. Ms. Kalogeras refers to the Letter in a chronology of events, from the initial request for J.E. to attend the in-person assessment to J.E.’s refusal to do so and to the period prior to service of the motion record. Ms. Kalogeras does not provide any other context for the Letter. For example, there is no explanation as to why Dr. Gavett-Liu sent the Letter.

[86] The single substantive paragraph of the Letter reads as follows:

I previously provided a paper review for the above noted claimant. Given the question about the possibility of Schizophrenia or another psychotic illness, I strongly recommend that an in-person assessment be completed to adequately assess psychiatric symptoms. If a virtual assessment is first undertaken, it may result in the need for a later in-person assessment to clarify symptoms, and so a single in-person assessment would eliminate the need to require the claimant to complete two separate assessments, potentially, as well as expedite the process.

[87] The reason given by Dr. Gavett-Liu for her strong recommendation that an in-person assessment be conducted is to “adequately assess psychiatric symptoms”. She does not suggest that the in-person assessment is strongly recommended, let alone necessary, to permit her to address the issue of causation of the post-incident psychiatric symptoms or to otherwise respond to the anticipated evidence of the treating healthcare professionals.

▪ Summary – Dr. Gavett-Liu

[88] The documents from Dr. Gavett-Liu do not support a conclusion that Dr. Gavett-Liu is of the view, belief, or opinion that an in-person assessment is necessary in order for her to respond to the eight referral questions posed. Nor do those documents support a conclusion that such an assessment is necessary for Metrolinx to know the case it has to meet.

ii) The Evidence of Drs. Gow and Lad

[89] I turn next to the affidavit evidence of the two neuropsychologists – Dr. Gow and Dr. Lad. Their respective affidavits are relatively brief.

[90] For the most part Drs. Gow and Lad agree as to the scope of practice of neuropsychologists. For example, they agree that clinical psychologists and clinical neuropsychologists are qualified to make and are capable of making diagnoses citing the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM-V”). Drs. Gow and Lad agree that the diagnosis of schizophrenia is addressed in the DSM-V and, therefore, falls within the ambit of expertise of a clinical psychologist or clinical neuropsychologist.

[91] In his affidavit, Dr. Lad says the diagnosis “and treatment” of schizophrenia is included in the DSM-V, and therefore falls within the ambit of expertise of clinical psychologists and clinical neuropsychologists. Dr. Gow disagrees with the inclusion of “and treatment” in that statement. Her evidence is that “[t]he ensuing treatment of a diagnosed disorder is not strictly speaking, [within] the purview of the DSM-V, although the reliance upon a common nosology does guide and facilitate treatment” (emphasis in original).

[92] Dr. Gow agrees with Dr. Lad’s statement that neither a psychiatrist’s nor a psychologist’s opinion is more “valid” than the other with respect to a diagnosis of schizophrenia. Dr. Gow describes the fields of psychiatry and psychology as complementary and collegial. She provides the following explanation as to how they are so:

[I]t cannot be ascertained out of hand whether there may be medical/pharmacological aspects of presentation that need to be brought to bear and are relevant to a formulation and differential diagnosis in schizophrenia. Those domains are within the purview/fall within the expertise of psychiatrist.

As a duly qualified psychologist, with expertise in clinical psychology, neuropsychology, neuroscience, and rehabilitation, I would deem it within my areas of expertise to diagnose schizophrenia; however, in so doing, I would rely on the opinion(s) of my psychiatry colleagues with respect to putative physical and pharmacological features of a condition and make an informed diagnosis of the basis of the totality of that information in the same way I would review my neurology colleague’s opinion regarding headaches, neurological exam finding etc. in a differential diagnosis of a neurological disorders which I am duly qualified to provide.

[93] There is, however, no evidence from either Dr. Gow or Dr. Gavett-Liu identifying any potential “medical/pharmacological aspects” of J.E.’s presentation, as recorded by the treating health professionals, which are “relevant to a formulation and differential diagnosis in schizophrenia.”

[94] Nor is there any evidence from either Dr. Gow or Dr. Gavett-Liu to support a conclusion that it is necessary for Dr. Gavett-Liu to conduct an in-person assessment to address “medical/pharmacological aspects of [J.E.’s] presentation”.

[95] To the extent that Dr. Gow disagrees with or differs from Dr. Lad, those disagreements and/or differences are not sufficient to support a conclusion that an in-person assessment of J.E. is necessary to permit Metrolinx to know the case it has to meet.

d) Does the Playing Field Require Levelling?

[96] At para. 34 of her first affidavit, Ms. Kalogeras offers the following explanation as to why Metrolinx requires a “responding psychiatric opinion”:

I am advised by review of the file and the Ottawa Hospital records of the Plaintiff, [J.E.], that causation in respect of post-incident symptoms is a central issue to the litigation. Consequently, the opinion of a psychiatrist is needed to comment on the same. The Plaintiff, [J.E.], continues to be treated and prescribed medications by various psychiatrists with respect to his schizophrenia. Without a responding psychiatric opinion, Metrolinx is unable to provide any psychiatric evidence on this central issue in the litigation.

[97] I leave aside for the moment the conclusory nature of statements made in the above-quoted paragraph. Once again, I highlight that Ms. Kalogeras does not identify any specific entries in the Records, which give rise to a concern that any one of the treating healthcare professionals expressed an opinion, let alone will be permitted by the court to give opinion evidence, outside the scope of their respective roles as participant experts.

[98] The final sentence of the above-quoted paragraph completely ignores the existence of the Report – a 46-page document in which Dr. Gavett-Liu expresses her opinion in response to eight referral questions, including a question addressing the issue of causation.

[99] There is no evidence which suggests the plaintiffs have served or intend to serve a report from a psychiatrist, in the capacity of a litigation expert, to respond to the opinions expressed by Dr. Gavett-Liu. Metrolinx is entitled to call Dr. Gavett-Liu as a witness at trial, and request that the court qualify her to give opinion evidence.

[100] It is unclear how the playing field is unlevel. If the playing field is in any way unlevel, it is possibly because the plaintiffs, of their own choosing, do not have a litigation expert to match the precise area of expertise of Dr. Gavett-Liu.

[101] At para. 34 of her first affidavit, Ms. Kalogeras mentions the “various psychiatrists” by whom J.E. has been seen and who have prescribed medication for his psychiatric conditions. It appears Metrolinx is concerned that the playing field will not be level because the number of psychiatrists (at least four) by whom J.E. was and may be continuing to be seen is greater than the number of psychiatrists Metrolinx is in a position to call as witnesses as part of its case.

[102] For at least two reasons, the number of psychiatrists by whom J.E. has been and may be continuing to be seen is not, in and of itself, sufficient to create an unlevel playing field in this proceeding.

[103] First, there is no property in the treating healthcare professionals as witnesses. It is open to Metrolinx to call any one of them as a witness at trial. There are obvious limitations in the extent to which counsel for Metrolinx will be able to engage with those healthcare professionals prior to their attendance at trial. Those limitations do not, however, contribute to the playing field being unlevel.

[104] Second, there is the court’s gatekeeper function. The importance of that function as it relates to the number of participant experts and litigation experts who may be called at trial was addressed by Edwards J. in Davies v. The Corporation of the Municipality of Clarington, 2016 ONSC 1079, 95 M.V.R. (6th) 231.

[105] In Davies, Edwards J. exercised the court’s gatekeeper function in the context of a lengthy personal injury trial. After the first ten weeks of what was expected to be an 18 to 20-week trial, the defendants requested a ruling as to whether the plaintiff required leave, pursuant to s. 12 of the Evidence Act, R.S.O. 1990, c. E.23, to call more than three participant experts. A concern about the number of expert witnesses testifying at trial arose, at least in part, because the plaintiff had retained 18 litigation experts and the plaintiff’s witness list included 18 participant experts.

[106] In his ruling, Edwards J. reviews the applicable principles and the steps to be taken to avoid duplication of evidence already called: at paras. 25, 27, and 29-30. In the end, Edwards J. concludes that it would be up to the plaintiff to determine which of the litigation experts and which of the participant experts would be called to “assist the court in coming to an informed and just decision”: at para. 35. In the same paragraph, Edwards J. emphasizes the limitations on the scope of evidence a participant expert is entitled to give: “To the extent that the plaintiff intends to call any of the proposed participant experts to give opinion evidence that strays beyond the opinion evidence of a treating doctor, leave will not be granted.”

[107] The plaintiffs in the matter before this court will, at trial, face the same limitations as the plaintiff in Davies faced regarding the number of experts – litigation or participant – they are permitted to call as witnesses. The trial judge will be required to exercise the court’s gatekeeper function with regard to both the number of participant expert psychiatrists whom the plaintiffs are entitled to call as witnesses and the substance of their evidence.

Conclusion

[108] For the reasons set out above, I make the following order:

1. Metrolinx is granted leave to bring a motion for an order requesting J.E. to attend an in-person assessment with psychiatrist, Dr. Emily Gavett-Liu.
2. The motion for an order requesting J.E. to attend an in-person assessment with psychiatrist, Dr. Emily Gavett-Liu is dismissed.
3. The plaintiffs’ cross-motion is adjourned and shall be heard by Associate Justice Fortier on a date to be scheduled by the parties in the usual manner for the scheduling of a motion before an Associate Justice of this court.

[109] The appeal by Metrolinx from a ruling of Fortier A.J., on the issue of the production of redacted versus unredacted records, is scheduled for early February 2024. The trial is scheduled to commence on March 24, 2024. It does not make sense to add to the workload of counsel by requiring them, as they prepare for the appeal and the trial, to address the costs of this motion. Costs of the motion are reserved to the trial judge.

Madam Justice Sylvia Corthorn

Date: January 29, 2024

[^1]: This court’s decision was made and this ruling was written, but not released, prior to January 25, 2024. In early January 2024, counsel for the parties were informed of the court’s decision on the motion.