) ) NICOLE DIANNE CARRADINE v. KATHRYN, 2010 ONSC 6434

CITATION : Carradine v. Worsley, 2010 ONSC 6434 DIVISIONAL COURT FILE NO.: 554/10 DATE: 20101122 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT THEN R.S.J., SACHS AND HARVISON YOUNG JJ. BETWEEN: ) ) NICOLE DIANNE CARRADINE and KATHRYN MARIE CARRADINE Appellants (Plaintiffs) – and – JOHN WORSLEY and SEMPLE-GOODER LEASING LIMITED Respondents (Defendants) )) )) )) )) ))))) Jasmine T. Akbarali and William A. G. Simpson , for the Appellants (Plaintiffs) Tara S.

Pollitt , for the Respondents (Defendants) ) ) ) HEARD at Toronto: November 22, 2010 HARVISON YOUNG J. [ 1 ] The appellant argues that the motion judge erred in law in ordering, pursuant to s.105 of the Courts of Justice Act and Rule 33 of the Rules of Practice, that the appellant undergo three medical assessments at the request of the respondent by a psychiatrist, a neurologist and a neuropsychologist. [ 2 ] The appellant does not object to being examined by the neuropsychologist, Dr.

Kiss, but argues that the respondent has failed to satisfy the prerequisites for the order that she be examined by a neurologist and a psychiatrist. [ 3 ] Dr. Kiss clearly states that it would be useful for him to have the plaintiff examined by a neurologist before he conducts his examination.

Specifically he states that a neurologist has the expertise “to determine the existence or non-existence of any level of brain injury.” In other words, “a neurological examine looks to determine whether there is an organic cause for the behaviour, whereas a neuropsychological examine focuses on behavioural issues.” Thus, Dr. Kiss stated that in order to complete his report “a neurological examination should first be completed.

In his view, “a neurological examine will confirm or deny in the most complete and comprehensive manner the existence of any type of brain injury, be it mild, moderate or traumatic.” [ 4 ] The plaintiff has been assessed by another neuropsychologist who expressed the opinion that she may have sustained brain injury. [ 5 ] The motion judge exercised his discretion and concluded that the evidentiary record before him was sufficient to warrant the ordering of a second defence medical opinion by a neurologist. [ 6 ] In GEA Group v. Venture Group Co.

(2009) ONCA 619 at paras. 58-59, the Ontario Court of Appeal adopted, with

approval, an Alberta Court of Appeal

interpretation of the principles set out by Labelle J. in B.C. (Ministry of Forests and OkanaganIndian Board) 2003 SCC 71 , [2003], 3 S.C.R. 371 at para. 43 relating to the review of discretionary judicial orders. In B.(A.)and D.(C.) 2008 ABCA 51 , [2008], 429 A.R. 89, the Alberta Court of Appeal wrote at para. 10: Orders involving the exercise of judicial discretion are generally evaluated on a standard of reasonableness. Absent a material error inprinciple, a significant misapprehension or disregard of the evidence or a decision which is clearly wrong, an Appellate Court will notinterfere with an exercise of discretion. In assessing whether a decision is clearly wrong, an error in the

interpretation or application ofthe law to found facts will attract appellate review. A decision, though discretionary, will be clearly wrong when it involves anerroneous

interpretation of the law. In other words, where the exercise of the discretion rests first on preconditions to the exercise of thediscretion, which themselves involve points of law, the standard of review of the chamber judge’s conclusions on those points of law iscorrectness.

However, an appeal court will not interfere merely because it would have exercised the discretion differently. [7] The appellant argues that the motion judge’s decision with respect to the neurologist was clearly wrong because thenecessary evidence was not provided by the neurologist whom the defence was proposing to conduct the examination. [8] We do not accept the appellant’s submission that the motions judge clearly erred in the exercise of his discretion in relyingon Dr. Kiss’s affidavit to justify ordering the examination by a neurologist. (See Harris v. Canada Life Insurance Co. (2002) (ON SC), O.J.

No. 1123). [9] In our view, this order is consistent with the principle of proportionality as it is now articulated in the circumstances of thiscase. [10] In contrast to the record regarding the need for a neurological examination, there is no satisfactory evidence in the record toexplain why an examination by a psychiatrist is warranted in addition to whatever evidence may be proffered by the neuropsychologist. [11] The only evidence on this issue comes through the affidavit of counsel for the respondent.

The respondent argues that the factthat the appellant raises issues of anxiety and depression justifies the order that she be examined by a psychiatrist.

The problem,however, is that there is no evidence from an appropriate source to explain precisely what a psychiatrist could add or why aneuropsychologist or neurologist could not address the issues of anxiety and depression or why their reports could not address issues ofpreexisting injuries or conditions. [12] In the absence of any such evidence, we must conclude that the order that the appellant be examined by a psychiatrist wasclearly wrong. [13] For the foregoing reasons, the appeal from the order that the appellant be examined by a neurologist is dismissed and theappeal from the order that she be examined by a psychiatrist is allowed.

THEN R.S.J. [14] I have endorsed the Appeal Book as follows: “This appeal is dismissed with respect to the order requiring the plaintiff to beexamined by a neurologist and allowed with respect to the order requiring the plaintiff to be examined by a psychiatrist for oral reasonson behalf of the Court delivered by Harvison Young J. In view of the divided success each party is to bear its own costs throughout.” HARVISON YOUNG J. THEN R.S.J. SACHS J. Date of Reasons for Judgment: November 22, 2010 Date of Release: December 8, 2010

CITATION : Carradine v. Worsley, 2010 ONSC 6434 DIVISIONAL COURT FILE NO.: 554/10 DATE: 20101122 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT THEN R.S.J., SACHS AND HARVISON YOUNG JJ. BETWEEN: NICOLE DIANNE CARRADINE and KATHRYN MARIE CARRADINE Appellants (Plaintiffs) – and – JOHN WORSLEY and SEMPLE-GOODER LEASING LIMITED Respondents (Defendants) ORAL REASONS FOR JUDGMENT HARVISON YOUNG J. Date of Reasons for Judgment: November 22, 2010 Date of Release: December 8, 2010