Court File and Parties

Court File No.: CV-18-2554
Date: 2025/02/18
Court: Superior Court of Justice – Ontario

Between:
Caitriona McGlinchey, Plaintiff
and
Randal MacKay and London Auto Group, Defendants

Before: K. Tranquilli

Counsel:
Chris Collins, for the Plaintiff Responding Party
Anne Davenport, for the Defendant Moving Parties

Heard: 2025-02-14

Endorsement

Introduction

[1] The defendants move for orders compelling the plaintiff to attend a psychological assessment with Dr. David Prendergast on March 11, 2025, and leave for late service of Dr. Prendergast’s report in respect of the pretrial scheduled for May 15, 2025. The defendants also seek leave to bring this motion, if necessary.

[2] The defendants submit it is in the interests of justice for the motion to be heard and for this assessment to take place. Fairness requires that they have an opportunity to respond to the psychological component of the plaintiff’s significant claim for damages. There is no prejudice to the modestly late service of the report. Their proposed expert advises the report can be ready by April 1, 2025, putting it inside the 60-day window for a responding report by approximately two weeks. It will not undermine the purposes of the pre-trial conference and will not jeopardize the trial date. Any prejudice to the trial date will be caused by the plaintiff’s recent service of a further four expert reports on the eve of the 90-day deadline and not this psychological opinion. The defendants are concerned they will not be able to respond to those reports in a timely way and plan to address this also by way of motion. They would have included that issue in this motion, but for the need to address entitlement to the psychology assessment in advance of the approaching date.

[3] The plaintiff submits the motion should be dismissed. The timing of the service of the responding report is in breach of the Rules. The defendants have failed to offer a reasonable explanation for their delay in scheduling the assessment for a responding report when the defendants have been in possession of the plaintiff psychology expert opinion since October 2020. Moreover, the plaintiff would need to undertake an updated assessment with her psychology expert to respond to the report and this would likely jeopardize the trial date. A trial adjournment would significantly prejudice the plaintiff because it would further limit her recovery of pre-trial damages in respect of her income loss claim. In any event, the proposed assessment is duplicative and unnecessary. The defendants’ recent neuropsychological report addresses the psychological component of the claim.

[4] These reasons explain why I allow the defendants’ motion for the medical assessment but deferred on granting leave for its service. The defendants arguably ought to have confronted this issue earlier in the proceeding. Nevertheless, in my view, both parties bear responsibility for these circumstances. In balancing the factors of fairness, necessity, and prejudice, I am persuaded the psychological assessment ought to proceed.

[5] I also give leave for late service of this report, on condition that it is served by April 4, 2025. Any prejudice arising from the plaintiff’s need for a responding opinion can be addressed by abridging the time for service for the responding report.

Background

[6] This action arises from a rear end collision at a stop sign at an intersection on the Western University campus on November 6, 2017. The statement of claim, issued in December 2018, claims damages of $2.5 million plus interest and costs. Examinations for discovery were held in September 2019. The parties unsuccessfully mediated the matter in 2022.

[7] The plaintiff was a university undergraduate at the time of the collision. She has since completed her undergraduate degree and has been working while pursuing a Master’s degree. She claims that her injuries from this collision have caused chronic impairments and altered her academic and career trajectory. But for the accident, she claims she intended to complete a PhD in social work or a related field and can no longer do so. Her diagnoses include chronic pain, post-concussive syndrome, mild traumatic brain injury, adjustment disorder, anxiety, and depression. The economic loss report of February 9, 2025, recently served on her behalf projects her income loss to range between $1.6 million and $2.5 million, which would seem to potentially exceed the current prayer for relief.

[8] The plaintiff passed the trial record on or about October 4, 2023.

[9] By letter of November 14, 2023, the plaintiff noted the pending assignment court date for later that month and advised, with reference to rule 53.02(2.2), that in addition to updates from current experts and treatment providers “we may retain the following additional experts and serve their reports on or before 90 days prior to the pre-trial; this will to some extent be dependent on which defence medical assessments are requested and the outcome of them …” Plaintiff counsel identified potential additional expert reports in the fields of bio-mechanical engineering, physiatry, future costs and accounting.

[10] At assignment court on November 17, 2023, the jury trial was scheduled for the sitting commencing September 29, 2025, for an estimated duration of five weeks and the pre-trial for May 15, 2025.

Plaintiff Reports

[11] The plaintiff has now served the following reports in support of her claim: physiatry, psychology, neuroradiology, neuropsychology (responding to the defence neuropsychology opinion), vocational, future care, bio-mechanical, and economic loss. This does not include any opinion or report from participant experts.

Defence Reports

[12] To date, the plaintiff has been assessed on the defendants’ behalf for a physiatry and a neuropsychology opinion. The defendants obtained the physiatry opinion in November 2021 and the neuropsychology opinion in 2024.

[13] The defendants arranged for further assessments in the last quarter of 2024. An ophthalmology assessment is scheduled for February 25, 2025, to address the opinions of the plaintiff’s treating optometrist. The defendant has also retained an expert to provide a neuro-radiology opinion to respond to the plaintiff’s expert.

[14] In December 2024, the defendants advised the plaintiff they had retained Dr. Prendergast to conduct a psychological assessment. After several follow up emails, Plaintiff counsel demurred and asked when the psychology report would be received. The defendants made further inquiries and confirmed the report would be delivered approximately two weeks after the rule 53 deadline. In mid January 2025, counsel advised he would not consent to the proposed psychological assessment both because of the timing and because he did not think the assessment was necessary, given the recent neuropsychological evaluation.

[15] As mentioned, the defendants advised they were also just served with future care, economic loss, and bio-mechanical engineering reports. Absent any agreement with the plaintiff, the defendants anticipate a further motion will be necessary to address their ability to respond to these reports in a timely way. They advised they opted to proceed with this motion only on the entitlement to the psychology assessment so as to preserve the potential appointment and avoid prejudice to the pre-trial and trial dates.

Analysis

[16] The defendants did not set this action down for trial. Therefore rule 48.04, requiring a moving party to seek leave of the court to bring this motion, is not required. To the extent that leave is arguably required, I am satisfied it is in the interests of justice to address this motion on its merits: Louis v. Poitras, 2020 ONSC 5301, at para. 22.

[17] Where the physical or mental condition of a party to a proceeding is in question, the court may order the party to undergo a physical or mental examination by one or more health practitioners. The court may also order further physical or mental examinations on such terms as are just: Courts of Justice Act, s. 105; Rules of Civil Procedure, r. 33.02.

[18] Each party filed case briefs in support of their position. In my view there is no controversy about the applicable principles; the disagreement arises from their application. Each case turns on its own facts. Ultimately, this court’s exercise of its discretion on this issue is informed by necessity, fairness and prejudice: Godin v. Goncalves, 2014 ONSC 7297 at para. 29.

[19] The plaintiff served her psychological report in October 2020. Dr. Joan Clayton diagnosed Post Traumatic Stress Disorder, Adjustment Disorder with Mixed Anxiety and Depression, and Chronic Pain with cognitive impairment and functional limitations. Other diagnoses that have emerged in the years since this collision include post-concussive syndrome with oculo-visual dysfunction and post-traumatic headache.

[20] I will allow the defendants had to be strategic in the selection and timing of their assessments, since they do not have a limitless right to examinations. This is not a situation where the record shows the defendants showed a lack of diligence in arranging the assessments. To date, but for this assessment, the other examinations have been arranged in a manner consistent with the rule 53 timelines. That said, given the time that passed since they were first served with the psychology opinion, they arguably had ample time in which to schedule an assessment before engaging in this race against the clock.

[21] That said, I cannot find that either party adhered to rule 53.03(2.2). The rule requires the parties to agree to a schedule setting out dates for the service of experts’ reports in order to meet the service deadlines for pre-trial. While plaintiff counsel’s letter of November 2023 can be interpreted as an overture to begin that discussion, there is no evidence that either party had any further communication about the nature of the experts contemplated or the schedule. At most, plaintiff counsel indicated he “may” retain further experts. There was no concrete proposal, let alone a discussion or agreement to a schedule as contemplated by the rule.

[22] In a situation where one side or the other will not agree to the required schedule for the delivery of expert reports, counsel should immediately request a 50.13 case conference in order to have the court fix one: Agha v. Munroe, 2022 ONSC 2508 at para. 13. Both parties appear to be responsible for the lack of an expert schedule in accordance with r. 53.03(2.2). Such an exercise would have afforded the opportunity to clarify the parties’ expectations, to identify whether there would be issues as to the number of assessments and disciplines involved and would allow the parties to seek the court’s direction in a timely way in advance of pre-trial and trial. While the defendants’ motion could be dismissed for non-compliance with the timing of service of expert reports, I find that in the circumstances of this matter, this joint failure to agree to a schedule, in combination with other factors arising on this record weighs in favour of the defendants.

[23] The number of assessments conducted by the defence to date do not bear the hallmarks of excess in the context of the damages claim and the array of impairments alleged as a result of the collision. The plaintiff claims significant damages. The recent economic loss report would seem to put her damages claim in excess of the pleading for $2.5 million. In my view, the defendant should be able to test the psychological component of the claim as a matter of fairness. It will also assist the trier of fact to have expert evidence that is subject to the adversarial process: Girao v. Cunningham, 2010 ONSC 4607 at para. 22.

[24] The plaintiff underwent a neuropsychology assessment on behalf of the defendant by psychologist Dr. Dowhaniuk in August 2024. The selection of this discipline appears reasonable given the symptoms and diagnoses of cognitive dysfunction arising from a suspected concussion and the diagnosis of mild traumatic brain injury and its role in her substantial damages claim. Dr. Dowhaniuk’s report of November 13, 2024, advised that from a cognitive/neuropsychological perspective, the plaintiff did not meet the criteria for a diagnosis of Neurocognitive Disorder and that it was incorrect to classify her symptoms as “post-concussive”. He recognized she described a degree of psychological maladjustment that was understandable and congruent with her life situation but found she does not meet the threshold of mental illness or a diagnosable psychological condition. He found her profile showed no elevations indicative of clinical depression, an anxiety disorder, or any mood disorder.

[25] The plaintiff submits that Dr. Dowhaniuk has therefore already provided a psychological opinion of assistance to the defendants such that a further assessment with Dr. Prendergast is not necessary. The plaintiff refers to the transcript of a 2022 cross-examination of Dr. Dowhaniuk on his affidavit in another court proceeding. In that examination, the expert acknowledged that while he practiced neuropsychology, that did not preclude him from commenting on psychological issues that he felt he had the expertise or knowledge to comment upon.

[26] The court is without the full context of that cross-examination in order to appreciate the context in which these comments were made. In any event, while there may be overlap in the disciplines and assessments, I do not agree that Dr. Dowhaniuk has addressed the psychological component to this claim. That same transcript of his cross-examination explains that his registration with the Ontario College of Psychologists is limited to clinical neuropsychology. Further, while he said he is not precluded from commenting on psychological issues that he feels he has the expertise or knowledge to be able to comment upon, he explained he would not conduct pure psychological assessments exclusively for the purpose of a psychological evaluation. Dr. Dowhaniuk’s explanation is consistent with his report in this matter, where he has commented upon some psychological issues as they arose in his assessment but otherwise did not engage in a psychological evaluation. The focus of his retainer and the focus of his opinion was on the existence of cognitive impairment and its relationship to the collision. He did not address all the diagnoses identified by the plaintiff psychologist Dr. Clayton, such as chronic pain or post-traumatic stress disorder, nor can I see that he was asked to do so.

[27] To the extent there is concern as to unfairness in the overlap of psychological opinion, and the perception of “doubling up” on opinions, this could be remedied through limiting the defence expert’s trial testimony to the neuropsychological findings, if found necessary by the trial judge.

[28] My conclusion that this psychological assessment is justified does not arise from a simply matching exercise of respective experts: Moore v. Bertuzzi, 2012 ONSC 5399, at para. 36. Fairness demands that the defendant have the right to address the psychological diagnoses, otherwise the plaintiff’s expert and the plaintiff’s evidence on that aspect could go unchallenged: Bonello v. Taylor, 2010 ONSC 5723 at para. 15.

[29] I am not satisfied that the timing of this report will be the cause of irreparable prejudice to the trial date. The defendants anticipate being able to serve the report sufficiently in advance of the pre-trial. Plaintiff counsel advised that he had intended to only call Dr. Clayton to testify as to the plaintiff’s psychological condition at the time of the assessment in October 2020. However, if he must now respond to the defendant’s psychological opinion, he suggests this will require a fulsome updated assessment, possibly with psychometric testing, which could jeopardize the September trial date. Counsel did not suggest that he did not plan to call this expert at all. Irrespective of a responding defence report, if his original plan was that he would only call her to testify as to her 2020 assessment, I question whether he would nevertheless have otherwise served an updated report in some fashion, as the psychologist’s opinion would be five years old by the time of trial. There was no evidence as to Dr. Clayton’s availability or advice as to the nature of an updated report and its timing, only evidence of counsel’s concern about the timing of the responding report. There will be approximately five months between the anticipated service of the defence report and trial. In my view it is reasonable to conclude that a responding report could be served without jeopardizing the trial date, with leave for late service.

[30] In summary, although I remain troubled by the lack of a schedule as required by r. 53.03(2.2), I am not prepared to visit the consequences of that oversight entirely upon the defendants. The parties share the responsibility for either an agreed upon schedule or in obtaining direction from the court in the event of disagreement. As I am satisfied this report can be served and responded to without jeopardizing the trial date, it remains the court’s strong preference that this proceeding be determined on its merits and not a technical application of the Rules.

Conclusion

[31] The motion is therefore granted.

[32] The plaintiff is ordered to attend the assessment with Dr. Prendergast on March 11, 2025.

[33] The defendants have leave to serve Dr. Prendergast’s report by April 4, 2025.

[34] I find it would not be appropriate to provide terms for the service of any responding psychology report by the plaintiff as the contingencies to contemplate are numerous. Depending upon timing and the content of the report, it would be my expectation that the defendants would not be able to complain of late service of a responding psychology opinion, although this issue would likely fall to the discretion of the trial judge in the event of disagreement.

[35] I encourage the parties to resolve costs. If the court must address costs, the defendants shall deliver their written submissions by March 7, 2025 and the plaintiff her written submission by March 14, 2025. There is no reply without leave. Written submissions are limited to two pages, excluding bills of costs.

Justice K. Tranquilli
Date: February 18, 2025