Courts Have Inherent Jurisdiction to Order Assessments by Non-Health Practitioners

We previously posted on the Divisional Court's decision in Ziebenhaus v.Bahlieda (click here for our original post).  In that case, the Divisional Court held that courts have inherent jurisdiction to order a party to undergo an assessment by someone who is not a "health practitioner".  In Ziebenhaus, the particular assessor was a vocational assessor.

The Court of Appeal has now confirmed the Divisional Court's decision at 2015 ONCA 471 (C.A.).
It held:

[13]      The language of s. 105 and Rule 33 does not constitute such clear and precise language. The language of these provisions is permissive, and they do not state that a court cannot order an examination by someone who is not a “health practitioner”. Moreover, the conclusion that a superior court judge has the inherent jurisdiction to order such an examination does not conflict with the relief available under s. 105, nor should it be seen as extending the reach of that section. Inherent jurisdiction should be exercised only sparingly and in clear cases, when the moving party demonstrates that it is necessary to ensure justice and fairness.

Ziebenhaus may make it easier to obtain orders compelling plaintiffs to attend independent medical examinations with non-medical practitioners; however, it will still be important to have good supporting materials to show the assessments are necessary to ensure justice and fairness.

Plaintiff Ordered to Attend Second IME

A recent decision highlights the importance of wording correspondence when disputes arise over IMEs.

In Caesar v. Griaznov, 2014 ONSC 4329 (S.C.J.), the plaintiff alleged both physical and psychological injuries.  Defence counsel arranged IMEs with a psychiatrist and a physiatrist.  Plaintiff's counsel advised the plaintiff would attend only one IME of the defendant's choosing.  A clerk in defence counsel's office sent a letter stating the defendant "chose" the psychiatrist.  She later followed up in an email that read as though the clerk assumed the physiatry IME would proceed as well.

Master Muir ordered the plaintiff to attend the second examination.  Since the plaintiff was claiming two distinct types of injury (physical and psychological), fairness dictated the plaintiff be compelled to attend.  There would be no overlap between the two examinations.  There was little unfairness to the plaintiff since there was no trial date pending and a mediation date was several months away.  In contrast, there was the risk of significant unfairness to the defendant who would be required to defend a central element of the plaintiff's claim without the benefit of a current expert assessment.

Master Muir denied the successful defendant costs given the clerk's letter which suggested the defendant had "chosen" only one examination.  The decision on costs seems odd given that Master Muir was satisfied the defendant always intended to preserve her right to a second examination.  Counsel should be alert to the wording used in correspondence relating to disputed IMEs.

Courts Have Inherent Jurisdiction to Order Assessments by Non-Health Practitioners

For several years, there have been two streams of cases regarding whether courts can order independent medical assessments by non-health practitioners under s. 105 of the Courts of Justice Act and r. 33.  The Divisional Court considered the issue in Ziebenhaus v. Bahlieda, 2014 ONSC 138 (S.C.J.).

The Court held that court have inherent jurisdiction to order physical or mental examinations by non-health practitioners.  The inherent jurisdiction is to be exercised to further trial fairness and justice.  There is no automatic rule that "levels the playing field" by providing the defendant is entitled to each type of report that is obtained by the plaintiff.  The focus is on the need for a particular examination in order to meet the plaintiff's case.

Ziebenhaus provides guidance on an area that has called out for clarification for some time. Defendants who bring motions to compel IMEs should make sure they address how the proposed assessment will further trial fairness and justice.  It may be that it will become easier to obtain IMEs with future care cost assessors, occupational therapists and so forth than in the past.

Second Defence Medical Ordered

In Galea v. Firsker, [2013] ONSC 1666 (S.C.J.), there is an interesting twist to the usual motion to compel the plaintiff to attend a second defence medical examination.

The plaintiff alleged soft tissue injuries.  The defendant's first defence medical with a neurologist was obtained prior to the plaintiff serving any reports.  After being served with reports by an orthopedic surgeon and a physiatrist, the defence sought to have the plaintiff examined by a physiatrist. 

McDermot J. ordered the plaintiff to attend the defence medical.  Even though there was an element of "buyer's remorse" in the defendant's request for a second assessment, denying the request would work an injustice, as the defendant would have no way to respond to the plaintiff's medical evidence.  The fact that there was no affidavit from the neurologist, there was no change in circumstances and there was a possibility the trial may have to be adjourned, the primary concern was trial fairness.

The decision in Galea seems to follow the recent case law where the emphasis is on trial fairness above other factors.

Further Defence Medical Ordered After New Evidence Produced

In Low v. Clarke, [2013] OJ. No. 1703 (S.C.J.), the defendant brought a motion seeking to compel the plaintiff to attend a further defence medical with a neurologist.

The plaintiff was examined by a neurologist, Dr. Upton.  Following the examination, the plaintiff served over 400 photographs of the plaintiff post accident.  According to Justice Glithero, the photographs appeared to show the plaintiff in various physical activities that were inconsistent with what she had previously reported to doctors.  The defendant filed a letter by Dr. Upton stating that a further examination would be important and useful to his opinion at trial.

Justice Glithero cited with approval a number of factors from Bonello v. Taylor, 2010 ONSC 5723:

1.  The request may be legitimate where there is evidence the plaintiff's condition has changed or deteriorated.  Justice Glithero added to this factor: where new evidence is disclosed and is material to the opinion and to any proper assessment of the extent and nature of injuries sustained.
2.  Trial fairness should be the guiding principle.
3.  Ordering further examinations may be just where they are necessary to enable the defendant to fairly investigate and call reasonable responding evidence at trial.

Justice Glithero allowed the motion and ordered a further examination.  Although these types of motion are largely fact specific, it is important to remember the guiding principle of fairness when deciding what evidence to present to the court.

Second Independent Medical Examination - Evidence

What evidence is necessary on a motion to compel the plaintiff to attend a second independent medical examination?

In Nasir v. Kochmanski, 2012 ONSC 4088 (S.C.J.), the plaintiff was a minor who was injured in a motor vehicle accident.  The claim alleged the plaintiff was struck while a pedestrian and sustained a head injury and various psychological impairments.  He had been assessed by a number of medical doctors and psychologists, both treating and arranged by plaintiff`s counsel.  He had been assessed by a paediatric neurologist on behalf of the defendant, although no report had been prepared.  The defendant sought to have the plaintiff assessed by a psychologist.  The proposed assessor wrote a letter to defence counsel outlining the assessment, its length, information she would require from the plaintiff`s parents, and test results from other assessments she required.

Justice Daley permitted the assessment.  The proposed assessment was outside the scope of expertise of the neurologist, according to the psychologist`s letter.  There was no evidence the assessment would delay trial or prejudice the plaintiff.  Since the plaintiff was very young, his evidence would be of limited evidentiary value, and the most probative and reliable evidence would have to come from experts.  Trial fairness favoured the second examination.

It should be noted that the evidence in support of the motion appears to come from a letter from the proposed assessor.  Justice Daley stated that it would have been preferable to have an affidavit or report from the neurologist outlining the need for a further examination, but accepted that there was enough evidence to support the motion.  There is some inconsistency in the case law as to the form of evidence needed on a motion for a further examination, and counsel should carefully consider whether it would be beneficial to have affidavit evidence. 

  

Independent Medical Examinations - Second IME Ordered

Walsh v. Newland, 2012 ONSC 2123 (S.C.J.)

Motions to compel a plaintiff to attend at an independent medical examination are often dependent on their facts, as can be seen in Justice Eberhard's decision in Walsh v. Newland.

In this case the plaintiff had previously been assessed by the defendant's neurologist. The defendant sought to have a second neurologist assess the plaintiff. Trial was scheduled for April 2012. In February 2012, the plaintiff served a report which linked the plaintiff's Bell's Palsy to the motor vehicle accident. At the time of the first IME, no link had been made so the first neurologist did not comment on it.

At paragraph 4, Justice Eberhard stated the basic test for compelling additional IMEs:

a) Whether the moving party established a need for the further examination;
b) Any new symptoms or complaints or a change in the landscape of the case as a result of a new medical report from the plaintiff. This is often used as a basis to justify a further defence medical examination; and
c) The overriding test of fairness and both sides having the ability to put the best evidence before the court at trial.

Justice Eberhard concluded that although the trial would be adjourned in order to allow for the examination to take place, the defendant was entitled to the IME. There was no real prejudice and it was important the defence be permitted to assess the new allegation.

- Tara Pollitt

Disclosure of Surveillance - 2

Aherne v. Chang, 2011 ONSC 3846

This is an appeal from Master Short’s recent decision on the issue of ‘when is privilege waived?’.

The defendants argued that if they provided surveillance material to an IME doctor, the privilege was not waived until the doctor released the report. The plaintiff argued that the privilege was waived as soon as the surveillance was given to the IME doctor. The defendant seems to want to avoid having the plaintiff’s lawyer review the surveillance before the plaintiff goes to the IME to make sure that the plaintiff doesn’t embellish during the IME.

It seems that the defendant in this case could have avoided this entire problem if they simply held onto the surveillance materials and let the IME doctor assess the plaintiff and prepare the report. Then, after the report is released, the defendant can provide the IME doctor with the surveillance, and ask the IME doctor if the surveillance changes his/her opinion.

Thanks to M. Edward Key for bringing this appeal to our attention and for the comments.

Disclosure of Surveillance

If surveillance is provided to an independent medical assessor, does it have to be produced to the plaintiff, even if the assessor does not rely on it in forming his or her opinion?

In Aherne v. Chang, [2011] O.J. No. 1880 (S.C.J.), the plaintiff sued for injuries alleged to have been caused as a result of medical treatment provided by the defendant. On the defendant's examination for discovery, his counsel confirmed that there had been no surveillance undertaken but refused to answer questions pertaining to disclosure of any future surveillance that might be undertaken after the discoveries. Counsel for the defendant took the position that privilege over documents released to a medical examiner, is waived only if the document is relied upon by the medical examiner, and not at the time that the document is released to the medical examiner. The plaintiff sought to obtain copies of any surveillance that was released by the defendant to a physician or healthcare practitioner retained for purposes of a defence medical assessment.

Master Short held that from the moment of his retainer to conduct a Rule 33 examination, a defence medical examiner owes his or her primary duty to the court. It is inappropriate and unseemly for the court to prevent any party before it from having contemporary access to the information provided to that expert.

Master Short summarized the following principles emerging from the rules and previous jurisprudence:

(a) if information is sent to an expert, then the same information should be sent to the opposing party to allow that party to test the expert’s opinion;
(b) an opposing party is entitled to the facts on which the expert’s opinion is based;
(c) so long as an expert read a document sent to him or her, then that document was considered, such that it is a “finding” that must be produced;
(d) the privilege claimed over a document sent to an expert is waived at the time that it was decided to rely on that expert’s opinion or in circumstances where privilege is waived over the report, even if the waiver was inadvertent;
(e) by sending a defence medical assessor portions of surveillance, privilege over the full surveillance video or all photographs is waived.

Master Short held that privilege is lost at the point the material is sent to an expert retained for the purpose of a Rule 33 examination. It was therefore held that the defendant is obliged to provide a copy of any surveillance of the plaintiff concurrently with its release to any defence medical examiner.

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.

An Interesting Twist on Beasley v. Barrand

The fallout from the Beasley v. Barrand decision continues. You may recall that in Beasley, the Court refused to permit expert evidence at trial from accident benefits assessors.

In Jeffrey v. Baker, [2010] O.J. No. 4415 (S.C.J.), the defendant sought to compel the plaintiff to attend at an orthopaedic IME. She had already attended at two IMEs with a physiatrist and psychiatrist, and the defendant had lost a motion in 2009 to compel two additional examinations.

Justice Quigley allowed the motion and ordered the plaintiff to attend the orthopaedic assessment. One of the reasons for allowing the IME was that prior to enactment of the new rule 53 the defendant would have been at liberty to call accident benefits assessors to give expert evidence at trial, but given the rule change this is no longer permitted, as made clear in Beasley. The Court was satisfied there was a real risk the defendant would be left without evidence to refute the plaintiff’s claims if the orthopaedic IME was not permitted.

Compelling Attendance at a Future Care IME

Here is a useful case in compelling a plaintiff to attend an IME with an occupational therapist.

Moore v. Wakim, 2010 ONSC 1991 (CanLii)

The defendant sought to compel the plaintiff to attend a Future Care Cost Assessment with an occupational therapist. The plaintiff had already undergone an orthopedic IME and a psychiatric IME.

Justice Howden ordered the assessment. The plaintiff had served a Future Care Cost report alleging attendant care potentially exceeding $2,000,000. Justice Howden held that the court has inherent jurisdiction to exercise its discretion in ordering assessments and it is not necessary to show that the assessment is a "diagnostic aid". There is a line of cases which stand for the principle that an assessment by someone who is not a health practitioner (such as an occupational therapist) must be necessary as a diagnostic aid to assist a health practitioner complete his or her report. Justice Howden accepted that the report was vital to the final result in the case since future care was a principal issue.

Cases such as Moore are helpful in obtaining reports to respond to the plaintiff. Such reports can be ordered under s. 105 of the Courts of Justice Act as "diagnostic aids", but may also be ordered pursuant to the Court's inherent discretion.

Audiotaping Independent Medical Examinations

In Adams v. Cook (2010), 100 O.R. (3d) 1 (C.A.), the defendant sought an independent medical examination of the plaintiff by a specialist in physical medicine and rehabilitation. The plaintiff would consent only if the examination was audio recorded. In the initial motion, plaintiff's counsel swore an affidavit alleging there was a systemic bias by those conducting IMEs. He made no allegations against the specific specialist selected by the defendant. The motions judge refused to order the IME without audiotape and the Divisional Court dismissed the appeal. The defendant then appealed to the Court of Appeal.

The Court of Appeal allowed the appeal. In order to show that audio or video recording is necessary, there must be something more than an allegation of general bias among doctors who perform IMEs; there has to be something specific to the case.

The Court was invited to opine on whether there should be routine recording of IMEs in all cases; however, it declined to do so, preferring to leave this issue for the Rules Committee.

Independent medical examinations seem to be an area ripe for disputes between plaintiffs and defendants. The Court of Appeal's decision is one that may assist the defence in opposing requests to record the examination, although it seems that the Court of Appeal has left the door open for plaintiffs to argue for recording of IMEs in specific cases.