Daggitt: Judge Refuses to Order Plaintiff to submit to Examination by Dr. Bail citing Concerns about Bias and Lack of Impartiality

Under Section 105 of the Courts of Justice Act and Rule 33.01 of the Rules of Civil Procedure, an opposing party may make a motion to request a 'second opinion' or independent physical or psychological examination of a person, such as the plaintiff, if their medical condition is in question. The purpose of such a motion is to potentially create a 'level playing field' between the parties in terms of objective medical assessment. However, there must be proof that this type of examination is necessary to ensure it is not merely a stalling or disingenuous tactic on the part of the party requesting the motion. This was the issue to be decided in Daggitt v. Campbell, 2016.

Case example

On November 16, 2012, the plaintiff, Ms. Daggitt was rear-ended by Mr. Campbell, after she braked to avoid an unidentified vehicle which suddenly pulled from the shoulder onto the roadway directly in her path and then performed a U-Turn. The plaintiff proceeded to file a claim against both the unidentified driver and Mr. Campbell. While the claim against the former was eventually abandoned, owing largely to the driver's identity being unknown, the claim against Mr. Campbell proceeded to trial.

With the trial date looming, the defendant filed a motion for an independent medical examination of the plaintiff by a psychiatrist, Dr. Bail. Although the plaintiff was willing to agree to an independent medical examination by a psychologist or neuropsychologist, she opposed the request for a medical assessment by the psychiatrist for the following reasons. First, she argued that the defendant was not entitled to a psychiatric evaluation as she had never been treated by a psychiatrist. Also, there was insufficient evidence showing why an assessment by a psychiatrist was warranted. Finally, the plaintiff opposed the examination being conducted by Dr. Bail specifically, because he had allegedly demonstrated clear and definitive bias in many previous cases and was thus not credible.

The defendant countered with the argument that defense counsel is entitled to decide what speciality of medical practitioner should examine the plaintiff. The defendant also argued that for Mr. Campbell to properly defend himself against the plaintiff's claim, they needed to provide opinion evidence as to the plaintiff's depression and mental health related injuries from a psychiatrist and further, they could select any qualified psychiatrist of their choice.

The key issues for the Court to resolve for this case were: should the plaintiff be required to undergo an independent medical examination by a psychiatrist; if so, is the plaintiff obligated to submit to examination by the psychiatrist specifically selected by the defendant; and if the examination is mandated, what terms of that examination, if any, should be imposed by the Court?

Justice Macheod-Beliveau began her analysis by making it clear that the Court has the discretion to order a second or further independent medical examination of the plaintiff, particularly if it helps to ensure a fair trial by creating a level playing field between the parties. The judge then stressed that this decision must be based on evidence of unfairness and necessity. In deciding the latter, Justice Macheod-Beliveau referred to the guiding principles set out in Bonello v. Taylor.

In the latter case, the judge outlined seven key principles to justify ordering a second or further examination from the plaintiff. They include:

1. The party seeking the order for further examination must show that this request is warranted and legitimate and not made with the purpose of delaying the trial, causing prejudice to the other party or simply to corroborate existing medical opinion.

2. The request may be legitimate if evidence demonstrates that:

   • the party's condition has changed or deteriorated since the date of the previous examination;

   • a more current assessment is required for trial;

   • the plaintiff provided specialist reports from new assessors after the defendants conducted their medical assessments; and

   • some of the plaintiff's injuries fall outside the expertise of the first examining health professional.

3. In the interest of fairness, there may be need for a matching report (i.e. a report from a defence expert witness in the same speciality as a plaintiff's expert).

4. If the request for examination of the plaintiff is by a person who is not a health practitioner, such as a rehabilitation expert, the defendant must show that the proposed examination is necessary as a diagnostic aid to the health practitioner conducting the defense medical examination.

5. The request for a second examination must be supported by sufficient evidence to persuade the Court of the need for the further examination. What constitutes sufficient evidence will likely vary from case to case.

6. Someone with knowledge of evidence in the case must provide evidence of unfairness for the Court to consider a second or further examination.

7. The Court must consider whether or not the request for a further examination would impose an undue burden on the plaintiff in light of the number of examinations already conducted of him/her by the defence.

After evaluating all the evidence of the case as well as the guiding principles laid out in Bonello v. Taylor, Justice Macheod-Beliveau ruled that there were no valid grounds for ordering a further independent medical examination. She noted that the assessment was neither warranted nor legitimate, adding that the plaintiff's condition had improved since her treatment ended; she was no longer in active treatment or counseling and was being monitored by her family doctor.

The judge added that the plaintiff had not served any reports from any new assessors and further, the fact that the defendant put forward this motion at such a late stage all but guaranteed a delay in the upcoming trial, likely for at least two years.

The judge referenced the ruling in Carradine v. Worsley where the Court rejected a similar request because there was no evidence to explain precisely what a psychiatrist would add to the case, which equally applies to this case, according to Justice Macheod-Beliveau. As well, in the interests of fairness, the plaintiff would likely require another assessment by a psychiatrist of her choosing to prepare a parallel report, which would result in significant additional expense and delay of trial.

Justice Macheod-Beliveau concluded that the only unfairness in granting the motion would be to the plaintiff. The judge submitted that the appropriate field of expertise for a second opinion would be psychology or neuropsychology, based on the medical professionals who had already examined the plaintiff. However, the defendant purposefully sought not to pursue this option.

The judge referred to the ruling in Karbasion v. Batorowicz, where the defendant's request for a psychiatric assessment was similarly dismissed because the plaintiff had not previously undergone psychiatric treatment; her psychiatric condition was not an issue; and as there is a difference between a psychologist and a psychiatrist, a psychiatric assessment was not appropriate to level the playing field.

The same findings were applied to the facts of this case and accordingly, the defendant's motion was dismissed. Although it was unnecessary to comment on other issues once the motion was dismissed, the judge nevertheless felt obligated to do so with regard to the bias and lack of impartiality of the defendant's chosen psychiatrist, Dr. Bail.

On this matter, she sided with the plaintiff and agreed that in the past, Dr. Bail failed to adhere to the principles of fairness, objectiveness and impartiality. Referencing multiple cases in which Dr. Bail was found not to be a credible witness, Justice Macheod-Beliveau stressed the importance of an impartial expert, noting, "When an expert and that expert's report is notably partisan, acts as judge and jury, advocates for the insurer rather than being impartial, is not credible, and fails to honour the undertaking to the court to be fair, objective, and non-partisan, it directly affects a party's right to a fair trial."

The judge further submitted that when we allow experts who fail to honour their obligation to be objective, this does little to prevent the expert from repeating this same action, as long as there are lawyers willing to hire them.

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