Lawlor v. Pennell, 2012 NLCA 32

Date: 20111212 Docket: 11/44 Citation: Lawlor v. Pennell , 2012 NLCA 32 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: LEONA LAWLOR APPELLANT AND: LLOYD LAWLOR APPELLANT AND: KENNA MAUREEN PENNELL RESPONDENT Coram: Green C.J.N.L, Harrington and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland & Labrador, Trial Division (General) 200401T0236 Appeal Heard: October 21, November 16 and December 12, 2011 Judgment Rendered: December 12, 2011 (Orally) Written Reasons Filed: June 11, 2012 Reasons for Judgment by Harrington J.A. Concurred in by Green C.J.N.L and Hoegg J.A.

Counsel for the Appellants: Bridget S. Daley Counsel for the Respondent: Wade D. Drover Harrington J.A.

INTRODUCTION [ 1 ] This is an appeal from an interlocutory order dismissing the appellants’ application to require the respondent to submit to a mental examination by a qualified psychiatrist designated by them, pursuant to rule 34.01(1) of the Rules of the Supreme Court, 1986 . At the hearing of this appeal, the Court (1) granted leave to appeal with reasons to follow; (2) dismissed the appeal with reasons to follow; and (3) reserved its decision on costs. What follows are the reasons for decision on the leave issue and the merits of the appeal and the decision with reasons on the issue of costs.

BACKGROUND [ 2 ] This claim arises out of a motor vehicle accident which occurred May 23, 2002. A Statement of Claim filed by the respondent on February 4, 2004 alleges that she had suffered a soft tissue injury to her lower back and that she has or had “ongoing pain, suffering and distress”. She also claims to have “suffered loss of income, loss of opportunity for advancement in her work place and loss of earning capacity as a result of the injuries suffered in the aforesaid accident”.

She seeks “general damages, including loss of income, loss of earning capacity, pain and suffering, loss of housekeeping capacity, loss of child care capacity and loss of amenities of life”. That is the extent of the pleading as it relates to the type of injuries allegedly suffered as a result of the accident. [ 3 ] The Lawlors, in their defense, deny that the respondent suffered any injuries. [ 4 ] An amended Statement of Claim was filed on December 29, 2006.

The respondent further alleges that private investigators hired on behalf of the appellants upset, intimidated and harassed her by conducting surveillance and, specifically, acted in an aggressive manner towards her and her husband on March 7, 2005, approximately 33 months after the accident. The respondent claims that this conduct caused “severe emotional trauma [leading] to physical harm to the Plaintiff and her unborn child”. [ 5 ] The respondent has been examined or treated by a number of medical health professionals during a period of nearly ten years since the accident occurred.

While it appears that a significant amount of medical documentation has been generated, the only documents before this Court and the applications judge below were the reports of three physicians, Doctors Geoffrey Lloyd, Gail Delaney and Daniel Squire. [ 6 ] Dr. Geoffrey Lloyd, an orthopedic surgeon, conducted a physical examination of the respondent with the consent of the respondent on December 5, 2005 at the appellants’ request. Dr. Lloyd’s report, dated January 6, 2006, states that, “[the] events after the delivery of her child have been complicated by the fact that she had two miscarriages.

She had what she described as a psychological meltdown. She has been receiving appropriate psychiatric support.” [ 7 ] The respondent was then assessed by Dr. Gail Delaney, a specialist in physical medicine and rehabilitation, on September 16, 2009 at the request of her own counsel. Dr. Delaney’s report noted that the respondent had reported that: After her second miscarriage she was diagnosed with depression and was treated with Celexa until January, 2006. She said she had also had post-partum depression after William was born.

Adam [the respondent’s son] was diagnosed with a nasal glioma and had two nasal surgeries before he was 1 year old. She was depressed with the miscarriages, depressed after what happened with Adam and then, last year, she thought she could work, but mentally could not because her back would not let her… … … She knows that she had a meltdown after her second miscarriage but has not really had any specific pain counseling per se. [ 8 ] Dr. Delaney reported that her initial impression was “that [the respondent] has a chronic pain syndrome consistent with a fibromyalgia type picture.” Dr.

Delaney concluded that, “There also appears to be significant psychological factors at play here and I strongly recommend she be seen by a clinical psychologist or psychiatrist with an expertise in rehabilitation and post-trauma depression.” [ 9 ] The respondent was also examined by Dr. Daniel Squire, an orthopedic surgeon, on October 27, 2009 at the request of her counsel. He reported: The diagnostic impression here is that this lady suffered a soft tissue injury in a motor vehicle accident in May 2002. This has been complicated by exacerbation of pain during several pregnancies since then.

In addition, it has been complicated by significant psychological stress associated with the ongoing chronic pain that she has in her back. The psychological and emotional aspects of this are well outside my area of expertise and is not something that I would be able to comment on from a professional point of view, but clearly had a significant effect on her over the last seven years. [ 10 ] Dr. Lloyd, at the appellants’ request and with the consent of the respondent, conducted a second orthopedic examination of the respondent on September 27, 2010. In his report, dated November 2, 2010, Dr.

Lloyd concluded: Given the presence of inappropriate findings and inconsistencies during the course of the clinical evaluation and her general demeanour and near tearfulness, there are almost certainly very significant issues in the realm of psychopathology. The causes for these issues and the implications of these issues are going to have to be addressed by specialists in the realm of psychopathology. [ 11 ] Counsel for the appellants then sought a mental examination of the respondent to be conducted by a designated psychiatrist.

The respondent did not consent. [ 12 ] The appellants brought an application pursuant to rule 34.01(1) of the Rules of the Supreme Court, 1986 , requesting an order that the respondent submit to an examination by the designated psychiatrist based in Halifax who has previously conducted such examinations and has testified at a number of personal injury trials in Atlantic Canada as a defence witness.

APPLICATION JUDGE’S DECISION [13] In an oral decision given May 30, 2011, the applications judge dismissed the application. [14] The applications judge referred to the analytical framework set out by Orsborn J., as he then was, in Cromwell v. Hillier (1994), (NL SC), 119 Nfld. & P.E.I.R. 271 (Nfld. T.D.) for the granting of orders for medical examinations. In that case,Orsborn J. set out guiding principles in this way at paragraph 71: 1. The right of a defendant to examine and assess the plaintiff's injury is fundamental to ensuring that neither party comes to courtenjoying an unfair evidentiary advantage.

To permit a situation in which only one side has the opportunity to examine and assess the injury would be to create an unfair evidentiary advantage. 2. The right of a plaintiff to personal privacy and physical integrity must be accorded the utmost respect.

An order that an individualbe subject to a medical examination in the face of an express refusal to consent should be given only when, after full consideration of theevidence before it, the court is satisfied that the interests of the defendant outweigh those of the plaintiff and that the only way to protectproperly the interests of the defendant is to grant the order requested. 3. A defendant must satisfy the court that the request is reasonable and that the specialist(

s) named is(are) qualified. In a personalinjury case, it would be the exception rather than the rule to find that a defendant's first request was unreasonable. 4. If the plaintiff refuses the request for an examination, some explanation must be given for the refusal. In the absence of anexplanation, a mere refusal will normally be insufficient grounds on which to refuse an order. 5. The court will assess the offered reasons for refusal in the circumstances put before the court. This assessment is of coursesubjective, but the authorities suggest that the following factors may influence the assessment. (

i) An objection related to the plaintiff personally will be viewed more sympathetically than an objection external to the plaintiff,such as, for example, an objection based on the past experience of the plaintiff's solicitors. (ii) A plaintiff's objection is more likely to be respected if there are non-objectionable and qualified alternatives to the defendant'srequest. Where the defendant limits the request to one specialist only, and the court is advised of a number of qualified alternatives, allacceptable to the plaintiff, the issue is not one of access to the injuries.

The contest is between the defendant's freedom of choice ofwitnesses and the plaintiff's physical integrity.

In such circumstances, the defendant should lead evidence to support the contention thatresort to any of the available alternatives would unduly prejudice the defendant's ability to prepare for and conduct the litigation. (iii) Objections related to the impartiality or predisposition of the named specialist are generally not relevant on an application forexamination, but are more appropriately dealt with on cross-examination at trial. (Emphasis added.) [15] With respect to the right of a defendant to examine and assess the plaintiff's injury, the applications judge first noted that thiswas not the first medical examination sought and obtained by the appellants.

The respondent had already been examined by Dr. Lloydon two occasions at the appellants’ request and with her consent. In light of rule 34.01(3) and the decision in Hatch v. C.B. Bus LinesLtd. (1998), (NL CA), 164 Nfld. & P.E.I.R. 145 (Nfld. C.A.), he considered this to be a relevant factor in theassessment of the merits of the application.

The applications judge acknowledged, however, that this was the first application for amental examination. [16] With respect to the respondent’s reasons for refusing to submit to this, the applications judge stated at page 3, lines 26-28, that,“[s]he has expressed her concern and Mr. Drover [her counsel] has expressed in argument that this has less to do with a genuine effort touncover the truth and more a collateral attack on her credibility.” At page 3, lines 44-46 of the transcript, the applications judgeconcluded, “… I guess in

summary in terms of the Plaintiff’s perception on this I’m satisfied that there is a level of reasonableness to herperception.” [17] With respect to the reasonableness of the appellants’ request, the applications judge concluded at page 4, lines 66-74: … I don’t believe the Defendant’s request is a reasonable one in the circumstances. The Defendant has not put forward compellingevidence to suggest that there are psychiatric issues here.

I’m satisfied there are issues involving a psychological response to physicalinjuries but I am not satisfied that there is any evidence to support a psychiatric issue requiring or providing justification for a psychiatricevaluation at this time. [18] He concluded: “[F]undamentally, I don’t believe the Defendant has made out [its] argument that this is either necessary or[reasonable] based on the evidence that’s before the court.” LEAVE TO APPEAL [19] Leave to appeal was required in this case as it was an appeal from an interlocutory order; see rule 57.02(1)(a).

As was notedabove, leave to appeal was granted at the appeal hearing. [20] Here, the Court found that the appeal involved matters of such importance that leave to appeal should be granted pursuant torule 57.02(4)(c). This appeal involves the weighing of the right to privacy of a litigant against the right of an opposing litigant to makefull answer and defence. It also involves a re-examination of the principles applicable to determining when an order pursuant to rule34.01(1) ought to be made, and, more specifically, an order that a party submit to a mental examination. ISSUES

[ 21 ] The following issues are engaged on this appeal:

(1) Should this Court allow the appeal and order the respondent to undergo a mental examination pursuant to rule 34.01(1)? i. Had the respondent’s mental condition been put in issue in the proceeding when the appellants’ interlocutory application was made? ii. If the respondent’s mental condition was put in issue, what factors should the applications judge have taken into account before exercising his discretion to make an order for a medical examination pursuant to rule 34.01(1)?

(2) What order for costs should be made on this appeal? ANALYSIS

(1) Should this Court allow the appeal and order Mrs. Pennell to undergo a mental examination pursuant to rule 34.01(1)? (

i) Has the respondent’s mental condition been put in issue? [ 22 ] The relevant parts of rule 34.01 provide: 34.01(1) Where the physical or mental condition of a party is in issue , the Court may, at any time on the application of an opposing party or on its own motion, order the party to submit to a physical or mental examination by a qualified medical practitioner. …

(3) The Court may order a further examination or examinations on such terms as to costs or otherwise as it deems just. (Emphasis added.) [ 23 ] An applications judge by the exercise of discretion may order a party to submit to a mental examination. This judicial discretion may only be exercised if the applicant satisfies the threshold requirement of demonstrating that the opposite party’s mental condition has been placed “in issue”. This question must be decided before the criteria in Cromwell v.

Hillier are engaged. [ 24 ] The key question in this case then becomes: how and when is a party’s mental condition put in issue? While the applications judge ultimately decided that the respondent’s mental condition was not in issue his analysis did not begin with a consideration of this issue in the context of the existing pleadings which the opening words of rule 34.01(1) require. [ 25 ] This approach was discussed in Jones v. Donaghey , 2011 BCCA 6 .

There, Smith J.A. stated: [9] … an "issue" is a disputed fact the resolution of which will, without more, have legal consequences as between the parties to the dispute. Smith J.A. continued, stating: [14] Accordingly, since the purpose of pleadings is to define the "issues" of material or ultimate fact as between the parties, whether a proposition of fact is "in issue" for purposes of Rule 7-6(1) must be determined from an examination of the pleadings: Astels v.

Canada Life Assurance Co. , 2006 BCCA 110 at para. 4 , 23 C.P.C. (6th) 266 . [ 26 ] While the nature and extent of a claimant’s injuries will always be in issue in a personal injury case, this cannot entitle the opposite party to seek medical examinations for every form of medical sequelae that may be reported upon in the medical records and reports arising in the claimant’s medical history. The medical information sought by way of a mental examination must help resolve an issue which will, without more, have legal consequences.

As suggested in Jones , supra , the court must begin by examining the pleadings in the case. If the plaintiff herein was claiming for psychiatric injury, such as alleged in Mustapha v. Culligan of Canada Ltd. , 2008 SCC 27 , [ 2008] 2 S.C.R. 114 [1] , then the mental condition of the party would clearly be in issue as the claim for damages would be dependent on the mental condition of the claimant. The typical pleadings in personal injury cases, however, are frequently not so clear cut. [ 27 ] The pleadings in this case are a perfect example.

The respondent’s original statement of claim alleges that she has suffered “ongoing pain, suffering and distress”. This is alleged to have caused “general damages, including loss of income, loss of earning capacity, pain and suffering, loss of housekeeping capacity, loss of child care capacity and loss of amenities of life”.

The respondent’s defence denies that she suffered any injuries. [ 28 ] In her amended statement of claim, the respondent claims that the investigative surveillance by the appellants’ agents, particularly on March 7, 2005, approximately three years after the motor vehicle accident, caused her “severe emotional trauma [leading] to physical harm to the Plaintiff and her unborn child”. [ 29 ] Pleadings with somewhat similar allegations were considered in MacIntyre v. RBC Life Insurance Company , 2010 NSSC 152 , which involved a disability insurance claim.

There, Bourgeois J. stated with reference to the pleadings: [12] I have carefully reviewed the Originating Notice and Statement of Claim filed on behalf of Dr. MacIntyre on April 8, 2004. Although Dr. MacIntyre claims he is incapable of working, there is no assertion that this is due to psychological or psychiatric reasons. The sole reference to the mental health of the plaintiff is contained within paragraph 11 of the Statement of Claim, which reads: 11. The Defendant was under a duty to assess the Plaintiffs' application for monthly benefits in good faith, but failed to do so.

In violation of its duty of good faith the Defendant has:

(

a) instituted surreptitious surveillance on Dr. MacIntyre without reasonable cause; (

b) considered medical information which was improperly obtained; (

c) failed to consider the medical information provided by the Plaintiffs; and (

d) such other acts of bad faith as may appear. The Defendant's high-handed and arbitrary handling of Dr. MacIntyre's claim has caused the Plaintiff and his family to suffer severe anxiety and emotional distress. [13] I cannot find, when considering the nature of the claim brought forward by Dr. MacIntyre that the above provision serves to "put in issue" his mental condition as contemplated by Rule 21.02(2). Dr. MacIntyre asserts that his ailments are physical in nature - he does not plead mental illness as a source of his "sickness" under the policy

definitions. It is as an adjunct to the claim of bad faith that he asserts that he and his family have suffered mental distress due to the actions of the Defendant.

This is not an uncommon pleading in such circumstances, and I do no accept that his mental condition, and in particular his psychiatric health, is being put in issue as a significant issue in the litigation. [The wording of the rule considered in MacIntyre is similar to our rule 34.01(1).] The application for a mental examination by a physician designated by the defendant insurer was rejected. [ 30 ] An assertion that a claimant has suffered emotional distress in a pleading will not necessarily place the party’s mental condition in issue.

The valuation of damages for such claims is frequently conducted in the absence of psychiatric evidence. [ 31 ] A result similar to that found in MacIntyre was reached in Lafleur v. Fraser , 2000 CarswellOnt 3574 (Ont. S.C.J.) , where Valin J. made the following comments in affirming the rejection of the psychiatric evaluation sought: [6] … The plaintiff was injured in a motor vehicle accident on April 16, 1990.

In paragraph 11 of her statement of claim, the plaintiff alleges, inter alia , that she suffered physical injuries that have impaired her ability to earn her livelihood and that those physical injuries have resulted in past, present and future economic loss… [7] … The plaintiff alleges disability arising from physical injuries suffered in the accident. She does not allege that she suffered any psychiatric damage as a result of the accident… The evidence offered in support of the request for a psychiatric examination was in the form of a suggestion or recommendation made in a report by Dr. Lloyd.

A psychiatric examination is one of the most intrusive examinations to which a person can be subjected. In those circumstances, and given the manner in which the plaintiff has pleaded her case, I can well understand Karam J. being reluctant to make such an order. [ 32 ] The foregoing cases may be contrasted with Guglielmucci v. Makowichuk (1996), 72 B.C.A.C. 308 , where the British Columbia Court of Appeal allowed an appeal and ordered the plaintiff to submit to a mental examination where the plaintiff had alleged that she suffered from fibromyalgia, depression and a personality change.

It is significant that the defendant had supported its interlocutory application with a written opinion from a psychiatrist to the effect that the claims alleged could have a psychiatric underpinning. [ 33 ] It is apparent from the case law that the dividing line between compensable psychiatric injury and non-compensable upset can sometimes be difficult to draw. In Mustapha , McLachlin C.J. wrote: [9 ] This said, psychological disturbance that rises to the level of personal injury must be distinguished from psychological upset. Personal injury at law connotes serious trauma or illness: see Hinz v.

Berry , [1970] 2 Q.B. 40 (C.A.) , at p. 42 ; Page v. Smith , at p. 189; Linden and Feldthusen, at pp. 425- 27 . The law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury.

I would not purport to define compensable injury exhaustively, except to say that it must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept. … [ 34 ] Where the claimant actually alleges “psychiatric injury”, the assessment of whether the claimant’s mental condition is in issue is straightforward.

When terms such as “distress” and “emotional trauma” are pleaded, the existing jurisprudence supports a view that the use of such words would not generally support the proposition that a claimant’s “mental condition” has been placed in issue, at least to the extent of justifying a free-wheeling intrusion of the claimant’s general psychiatric history. [ 35 ] The appellants contend that the mental condition of the respondent is in issue and that a mental examination is justified by a psychiatrist who had not previously treated the respondent.

Here, the pleadings do not place the respondent’s mental condition in issue. The statement of claim as amended does not assert a psychiatric or psychological injury was suffered by the respondent arising from the accident in 2002. It is worthy of note that in paragraph 6 of the statement of defence filed February 11, 2004 and not subsequently amended, “… the Defendants deny that the Plaintiff incurred any bodily injuries, pain, suffering and distress”. [ 36 ] A plaintiff is entitled to decide the claim she intends to plead and prove.

If she chooses not to claim that she suffers from a mental condition caused by the negligence of the defendants the latter does not have free rein to delve into the plaintiff’s psychological or psychiatric history when it has not been put in issue by the pleadings. [ 37 ] The applications judge implicitly found that the mental condition of the respondent had not been placed in issue in this proceeding and ought to have limited his analysis to that threshold question.

In reaching his conclusion on this issue he was correct. (ii) If the respondent’s mental condition was in issue, what factors should the applications judge take into account in ordering a mental examination pursuant to rule 34.01(1)? [ 38 ] As the decision of the applications judge can be supported on the ground that the mental condition of the appellant was not

placed in issue, it is not strictly necessary to consider the manner in which the applications judge purported to apply the Cromwell v.Hiller factors. Nevertheless, because much of the argument on this appeal was directed to this issue, a few comments are in order. [39] While it may not be necessary in all cases, evidence in the form of an affidavit from a psychiatrist or an equivalent mentalhealth professional would be relevant evidence to establish justification for a medical examination provided that the mental condition ofthe claimant is in issue.

An affidavit from a qualified doctor or that physician’s written report attached to counsel’s affidavit should bebased upon an examination of the claimant’s medical records including reports by attending physicians and available discoveryevidence. Extracts from discovery examination of the claimant may also be relied upon. Such documentation is absent from theapplication here. [40] Here the physicians who examined the respondent merely recommended in their reports that she be seen by either a clinicalpsychologist or psychiatrist with an expertise in rehabilitation and post-trauma depression.

They are not psychiatrists or psychologistsand their conclusions make no direct linkage of symptoms with the motor vehicle accident. On the other hand, whatever records wereavailable to Doctors Delaney, Squire and Lloyd along with their interviews of the respondent reported that she had suffered from post-partum depression resulting from two miscarriages and stress caused by a health problem diagnosed with respect to her child, by heroverall physical constraints and discomfort affecting her daily living combined with her inability to return to work or manage herhousehold.

There is no written opinion which separates this medical history from other psychological symptomology connected inwhole or in part to the motor vehicle accident. [41] Thus there are a number of factors that militate against the appellants’ position: (

i) The pleadings do not expressly assert psychiatric or psychological injury to the respondent as a result of the 2002 accident; (ii) The record before the applications judge confirmed that the respondent is not proposing to adduce any expert psychiatric evidenceat trial; (iii) No immediate steps were taken by the appellants based on the reports of Drs. Lloyd (January 2006) Dr. Squire (October 2009) orDr. Delaney (October 2009) to seek a medical examination; (iv) At the time of the application, the respondent had voluntarily participated in three physical examinations; (

v) The amended statement of claim did not assert a claim that a psychiatric condition had arisen from the alleged improperinvestigative surveillance by agents of the appellants; and (vi) No evidence by discovery or otherwise was placed before the applications judge that the respondent had been seeing a psychiatriston her own initiative as a consequence of the accident or the surveillance. [42] In the circumstances at play here, it is difficult to see how the conditions of such an investigation are likely to be fruitful andreliable in an interview process which by its very nature would have a relatively limited window.

Firstly, there is the discomfort andstress to a claimant being subjected to a probing interview by a psychiatrist who has been chosen by the opposing party to investigate hermental state before and after the 2002 accident to determine the nature and intent of any suspected mental condition that may or may notexist. Secondly, the focus of the examination would turn to whether the condition is connected, in whole or in part, to the accident.

Thirdly, the fact that the proposed medical examiner is a stranger and is known to have appeared in court as a defence witness on manyprior occasions could further serve to heighten the respondent’s anxiety and reticence and expose her to a rather traumatic, inconclusiveand unreliable mental examination.

From these perspectives, such an examination could constitute a significant intrusion on therespondent’s personal privacy and may not serve the ends of justice. [43] Here, the record before the applications judge confirmed that the respondent is not proposing to adduce any expert psychiatricevidence at trial, nor is she alleging any injuries of a psychiatric or psychological nature flowing from the accident beyond emotionalstress and anxiety coping with her physical injuries.

While the three medical experts made reference to issues of psychopathology whichmay have an effect on the respondent’s ability to cope with her physical injuries and indicated that a psychiatric or psychologicalconsultation might be helpful for her overall recovery, they did not indicate that such an examination was necessary for them to completetheir assessment of her injuries and residual disabilities, as they may relate to the accident (See Snow v. Kashyap (1996), (NL CA), 139 Nfld. & P.E.I.R. 321 (Nfld.

C.A.)). [44] If an applications judge is satisfied that a claimant’s mental condition is put in issue, he or she must determine whether to ordera mental examination and by whom the examination should be conducted. The decision of the applications judge should not beinterfered with on appeal unless the discretion was exercised arbitrarily or capriciously or was based on a wrong or inapplicable principleof law: see Clarke v. Seaward (1995), (NL CA), 133 Nfld. & P.E.I.R. 58 (Nfld.

C.A.) at para. 6. [45] The applications judge correctly identified the competing rights which must be weighed in determining whether to make suchan order: the plaintiff’s right to privacy and the defendants’ right to know the case against them.

With respect to these rights, MarshallJ.A. stated in Hatch, cited above, that: [19] … Neither interest is to be regarded as subservient to the other and the one which will ultimately be accorded paramountcy willdepend on the relative weight due to each as balanced in the context of the particular facts presented by the case at hand… [46] Hatch relied on the reasoning in Clarke, cited above, where Cameron J.A. stated at page 61: In his decision the Chambers judge noted the competing interests to be considered in such cases; the right of the defendant to beinformed of the case against him and to choose his own witnesses, particularly expert witnesses, and the right of the plaintiff to personalprivacy and physical integrity.

The intervenor submitted that rule 34 had changed the balance between the opposing interests, that therespondent's right to personal liberty must now be subordinated to the public interest in "a fair and open trial system" and that, therefore,cases which were decided before the introduction of rule 34 ought not to influence the outcome of this case. I am unable to agree. The

interests enunciated by the Chambers judge remain those to be considered when deciding whether to exercise the discretion under rule34. [47] As a general rule, the application of these principles will mean that mental examinations will be ordered less frequently thanphysical examinations. There are two reasons for this. First, mental examinations are considered to be one of the most intrusiveexaminations to which a person can be subjected; see Lafleur per Valin J.; Robinson v. Kilby (1996), (ON SCDC), 20R.F.L. (4th) 413 (Ont. Div. Ct.) per Jenkins J.; and Gourlay v.

Sandu, [2009] A.W.L.D. 2447 (ABQB) per Hillier J. at paras. 11-13. Thisresults from the nature of such examinations. They involve delving into the private lives of the persons being examined. This factor willmilitate against making such an order. [48] Second, these types of examinations implicitly require a certain amount of trust between the patient and the examiningphysician. As noted by the Master in Wheeler v.

White (1983), (BC SC), 49 B.C.LR. 294 (BCSC) affirmed at (1984), (BC CA), 7 D.L.R. (4th) 767 (BCCA): [6] … It seems obvious, to me at least, that in the particular field of psychiatry and psychology it is imperative that the patient becooperative and at relative ease if the examination is to proceed with any hope of a meaningful conclusion.

Where this cooperation is absent, it is less likely that such an examination, if conducted, will advance the appellants’ efforts to know thecase they have to meet even when the matter has squarely been placed in issue. [49] The applications judge in this case stated that the respondent “expressed her concern… that this has less to do with a genuineeffort to uncover the truth and more a collateral attack on her credibility.” It appears that the applications judge was aware that there wasa certain lack of trust in this case especially given that the amended claim arose from the investigative surveillance which is alleged tohave caused emotional trauma “linked to physical harm to Ms.

Pennell and her unborn child”. This state of affairs could seriouslyundermine the atmosphere, candour and the utility of any mental examination, if ordered. [50] This is not to say that medical examinations regarding a claimant’s mental condition should never be ordered. The judgehearing such an application under rule 34.01(1) has to consider all of the facts before issuing or refusing an order for such anexamination. [51] Further, the respondent has already voluntarily subjected herself to a number of examinations regarding her physical conditionat the request of the appellants.

As noted in Hatch, applications for subsequent examinations by physicians designated by the opposingparty will be less frequently successful. In these circumstances, any suggestion or concern that the respondent may enjoy an evidentiaryadvantage at trial is muted. [52] On these facts, the applications judge was not persuaded that the respondent’s mental condition was placed in issue and that therespondent’s right to privacy outweighed the appellants’ right to pursue further medical discovery in order to make full answer anddefence. There is no basis for interfering with the judge’s exercise of discretion.

COSTS [53] Counsel appeared with respect to this matter for a full day on October 21, 2011, the morning of November 16, 2011 and a fullday on December 12, 2011. It is the opinion of the Court that this matter was capable of being dealt with in one day and that the delaywas the result of the actions of counsel for the respondent. [54] Costs are always in the discretion of the Court. The hearing of this appeal took place over two and one-half days.

Here, theCourt is of the opinion that the respondent, as the successful party on the appeal, should be awarded party and party costs based onColumn 3 of the Scale of Costs, Rule 55 but limited to counsel fees for one day. However, since the appellants incurred counsel fees onOctober 21, 2011 and the morning of November 16, 2011 due to the actions of the respondent’s counsel which unnecessarily prolongedthe appeal hearing, they are entitled to party and party costs based on Column 3 of the Scale of Costs for one and one-half days.

SUMMARY AND CONCLUSIONS [55] For these reasons leave to appeal is granted and the appeal is dismissed. The respondent as the successful party shall have itscosts on a party and party basis for the first day under Column 3 of the Scale of Costs, Appendix to Rule 55. Given the unnecessaryextension of the hearing due to actions of the respondent’s counsel the appellants shall be awarded costs on a party and party basis forone and one half days under Column 3 of the Scale of Costs. ________________________ M. F. Harrington J.A. I concur: _____________________ J. D. Green C.J.N.L.

I concur: ______________________ L. R. Hoegg J.A.