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December 13, 2010

Defence "Life Care" Assessment

This entry was prepared by Alexandra Lacko, articling student.

In the case of Vanderidder v. Aviva Canada Inc., 2010 ONSC 6222, the moving party sought an order compelling the plaintiff, Vanessa Vanderidder to participate in a life care plan assessment by a certified life care planner.

The action arose out of an accident in which the plaintiff sustained an injury when a rock fragment fell from a truck, deflected from the road surface, went through her open car window and struck her in the head. The plaintiff alleged that she sustained serious injuries which caused permanent and serious disfigurement and serious impairments of important physical, mental and psychological functions. She also alleged that she continued to suffer and required treatment, and would continue to suffer from the effects of her injuries for an indefinite period of time. The plaintiff claimed damages for future health care costs as a result of the effects of the injuries on the activity of the plaintiff.

In support of Vanessa Vanderidder’s claim for future health care costs, counsel for the plaintiff served a future care cost report authored by Keith C. Hayes, Ph.D. The report was analysed by an actuary and placed a present value on the plaintiff’s future health care needs at $719,901.00.

As a result of the substantial monetary claim of the plaintiff, the moving party wished to have Vanessa participate in a life care assessment/future care cost assessment by an individual who had a Bachelor of Science in Occupational Therapy and was defined as a “practitioner” pursuant to s. 52 of the Evidence Act, R.S.O. 1990, c. E.23. The basis for the moving party’s motion for the life care assessment/future care cost assessment was prejudice.

The position of the responding party, Vanessa Vanderidder, was that the moving party had not deduced any evidence that the requested assessment was necessary to aid a health practitioner as a diagnostic tool.

Plaintiff’s counsel asked Justice Granger to recuse himself from hearing the motion on the grounds that in Kozhani v. Gelbart, [2010] O.J. No. 1348, Justice Granger ordered the plaintiff to submit to a life care assessment/future care cost assessment by an occupational therapist without a health practitioner requiring the assessment as a diagnostic tool. Plaintiff’s counsel suggested that based on Justice Granger’s earlier decision, there was a reasonable apprehension of bias and that Granger J. should recuse himself from hearing the motion. Justice Granger went through the test for bias and found that plaintiff counsel’s apprehension was an apprehension of lack of success rather than an apprehension of bias and Justice Granger did not recuse himself.

In coming to his decision on the assessment, Justice Granger underwent an analysis of the case law in the area of non-medical expert assessment. Justice Granger stated that:

It would seem to me that if Vanessa Vanderidder elects to place before the court evidence concerning her future care needs as determined by a non-health practitioner, she can hardly be heard to claim that it would be unfair to order her to submit to such an assessment by a person of the choosing of the defence.

The Court concluded that “fairness can only be achieved by ordering Vanessa Vanderidder to participate in a life care assessment by a person other than a “health practitioner” notwithstanding that there is a lack of evidence before me from a health practitioner that such an assessment is needed by a health practitioner as a “diagnostic aid.”

The plaintiff was therefore ordered to participate in a life care plan assessment by the certified life care planner and occupational therapist. The Court’s goal was to achieve fairness in the trial process in order to create a “level playing field” for trial.

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