) ) WILLIAM MCHARDY, a person under disability by his litigation guardian, Tara Luck, WILLIAM MCHARDY SR. KATHERINE MCHARDY v. TARA LUCK, 2013 ONSC 5610

CITATION : McHardy v. Ball, 2013 ONSC 5610 BARRIE COURT FILE NO.: 09-0138 DATE: 20130905 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) WILLIAM MCHARDY, a person under disability by his litigation guardian, Tara Luck, WILLIAM MCHARDY SR. KATHERINE MCHARDY and TARA LUCK Plaintiffs – and – DAVID BALL, ERIC BALL and CITY OF BARRIE Defendants ) ) ) ) ) ) ) ) )))))) A. Little, for the Plaintiffs S. Zacharias, for the Defendant City of Barrie ) ) ) HEARD: August 20, 2013 REASONS FOR DECISION DiTOMASO J.

THE MOTION [ 1 ] The Plaintiff, William McHardy (“McHardy”) brings this motion for an order compelling the defendant City of Barrie (“Barrie”) to produce the defence Vocational Assessment Report of Ms. Renee Ruiter-Kohn, which is in its possession and control. BACKGROUND [ 2 ] On October 20, 2008, Mr. McHardy sustained serious and permanent injuries, including a traumatic and severe brain injury, as a result of a motor vehicle collision.

Due to his cognitive impairments, he is represented in this action by his litigation guardian, Tara Luck. [ 3 ] The expert reports served on behalf of the Plaintiffs included a Psycovocational Assessment Report from Dr. Neville Doxey dated July 21, 2010 containing the opinion, amongst others, that Mr. McHardy would not be able to complete his training program and would be competitively unemployable in his own or any field. [ 4 ] In response, Renee Ruiter-Kohn, a Vocational Rehabilitation expert and Social Worker was retained on behalf of Barrie to conduct a vocational assessment on Mr. McHardy.

Arrangements were made for Ms. Ruiter-Kohn to interview Mr. McHardy as part of the assessment. By letter to Plaintiffs’ counsel dated March 28, 2011, it was confirmed that this assessment would take place on November 4, 2011 and counsel had asked to confirm the address of the Plaintiffs’ residence. In addition to the Vocational Assessment, the March 28, 2011 letter also confirmed the scheduling of a separate future care assessment by Sandra Vellone (“Ms. Vellone”) as well as separate medical assessments. [ 5 ] By letter dated April 7, 2011, Plaintiffs’ counsel confirmed that Mr.

McHardy would attend the various assessments as well as his home address. [ 6 ] Ms. Ruiter-Kohn’s interview of Mr. McHardy took place on November 4, 2011 at his parents’ home where he resides. A representative on Mr. McHardy’s behalf was present at all times during the interview. [ 7 ] The Plaintiffs made numerous requests of Barrie to produce Ms. Ruiter-Kohn’s Report. Counsel for Barrie refused to produce her Report.

[ 8 ] When Plaintiffs’ counsel advised of an intended motion to compel production of the Reports from Ms. Ruiter-Kohn and Ms. Vellone, counsel for Barrie replied that “neither Ms. Ruiter-Kohn nor Ms. Vellone are health practitioners within the meaning of

section 105 of the Courts of Justice Act ” and that Rule 33 “is a function of

section 105”. In addition, counsel for Barrie advised: “We are not relying on [Ms. Ruiter-Kohn’s] report. We anticipate receiving Ms. Vellone’s report shortly and will then make a determination as to whether it will be served”. [ 9 ] By letter dated July 25, 2013, counsel for Barrie served Ms. Vellone’s Report dated July 19, 2013. To date, counsel for Barrie have refused to produce a copy of Ms. Ruiter-Kohn’s Report. THE ISSUE [ 10 ] The issue on this motion is whether Barrie should be required to produce the Report of its vocational expert Renee Ruiter- Kohn forthwith.

POSITION OF THE PARTIES Position of the Plaintiff McHardy [ 11 ] On behalf of Mr. McHardy, it is submitted that while Ms. Ruiter-Kohn is not a “medical practitioner” as defined in

section 105 of the Courts of Justice Act , nevertheless, a copy of her Report must be served pursuant to rule 33.06 of the Rules of Civil Procedure . That obligation should not change simply because the assessor did not meet the definition of a “medical practitioner”. The defence vocational examination by Ms. Ruiter-Kohn was conducted on consent and the Plaintiffs did not require Barrie to first obtain an Order for the examination. Pursuant to 33.08, a consent examination is analogous to a court ordered examination, and is subject to the same obligations out of the Rules.

Further, the language of rule 33.06 is mandatory and requires service of the report following a defence assessment without exception. Lastly, Barrie is obligated to produce a report arising out of a defence medical examination in the interests of fairness and full disclosure. [ 12 ] Mr. McHardy submits that Ms. Ruiter-Kohn’s Report should be served forthwith on his counsel. Position of the Defendant City of Barrie [ 13 ] On behalf of the City of Barrie, it is submitted that Rule 33 of the Rules of Civil Procedure is a function of

section 105 of the Courts of Justice Act . There is no basis to require disclosure of a report from Ms. Ruiter-Kohn as she has not been identified as a “health practitioner” pursuant to

section 105 of the Courts of Justice Act . It is submitted that the rule 33.06 requirement to serve a health practitioner’s report only applies to medical assessments conducted pursuant to Court Order or on “consent in writing” under rule 33.08. There is no such Order, nor was there any written consent that Ms. Ruiter-Kohn’s interview with Mr. McHardy was being conducted on the basis that Rule 33 would nevertheless apply. It is submitted that had the Plaintiffs’ counsel requested an undertaking or commitment to serve a report from Ms.

Ruiter-Kohn, this would not be given. [ 14 ] Contrary to the assertion made on behalf of Mr. McHardy, there is no attempt by Barrie to circumvent the language, spirit and intent of the Rules of Civil Procedure and the Courts of Justice Act . Rather, Ms. Ruiter-Kohn’s Report did not add anything of substance to the existing information and Barrie would not be calling her as a witness at trial. In effect, Barrie accepts the Plaintiffs’ assessment as accurate as of the time it was conducted. There is no “unfairness” to the Plaintiffs and the motion ought to be dismissed.

ANALYSIS [ 15 ] The Rules of Civil Procedure and

section 105 of the Courts of Justice Act are relevant to this discussion. [ 16 ] Rule 33.08 of the Rules of Civil Procedure provides as follows: 33.08 – Rules 33.01 to 33.07 apply to a physical or mental examination conducted on the consent in writing of the parties, except to the extent that they are waived by the consent. [1] [ 17 ] Rule 33.06 of the Rules of Civil Procedure provides as follows: 33.06(1) – After conducting an examination, the examining health practitioner shall prepare a written report setting out his or her observations, the results of any tests made and his or her conclusions, diagnosis and prognosis and shall forthwith provide the report to the party who obtained the order.

(2) The party who obtained the order shall forthwith serve the report on every other party. [2] [ 18 ]

Section 105 of the Courts of Justice Act defines “health practitioner” as follows:

(1) In this section, “health practitioner” means a person licensed to practise medicine or dentistry in Ontario or any other jurisdiction, a member of the College of Psychologists of Ontario or a person certified or registered as a psychologist by another jurisdiction. [3] [ 19 ] Counsel for Mr. McHardy relied upon the decision of Wright J. in Ontario (Attorney General) v. CEC Edwards Construction. [4] In this case, the Plaintiff opposed a defence assessment based on the fact that it would be conducted by a person who is not “medical practitioner” under the former s.118 of the Courts of Justice Act .

This provision was the prior equivalent to the current s. 105 of the Courts of Justice Act . The Plaintiff objected to the examination on the basis that the Defendant would not be required to serve the Assessor’s Report because the Assessor was not a “medical practitioner” as defined under s.118. [ 20 ] In determining the Plaintiffs’ entitlement to the Assessor’s Report, Justice Wright concluded that if the Defendant was granted an examination under s.118 , then he must serve the Report pursuant to rule 33.06 .

Justice Wright held that this obligation should not change simply because the assessor did not meet the definition of a “medical practitioner”: I am of the opinion that if an examination is ordered under s.118 then the subsequent report must be disclosed to the parties in accordance with r.33.06(1). An examining party cannot avoid the provisions of r.33.06 on the ground that only the medical practitioner must prepare a report while taking advantage of a rule which ostensibly limits examinations to those conducted by medical practitioners. [5] [ 21 ] It is agreed that Ms.

Ruiter-Kohn is a Social Worker and Vocational Assessor. Further, technically, she is not a “health practitioner” as defined under s.105 of the Courts of Justice Act . Nevertheless, it is submitted on behalf of Mr. McHardy that the Court has inherent jurisdiction to exercise its discretion to order examinations of non-“health practitioners”. In such circumstances, the procedures set out in Rule 33 ought to be followed. [6] [ 22 ] I agree with the submission from Mr.

McHardy’s counsel that this Court does have the inherent jurisdiction to exercise its discretion to order examinations by non-“health practitioners” who are not defined under s.105 of the Courts of Justice Act . [ 23 ] Further, the defence vocational examination by Ms. Ruiter-Kohn was conducted on consent and the Plaintiffs did not require Barrie to first obtain an Order for the examination.

I find that pursuant to rule 33.08 , the consent examination in this case is analogous to a court-ordered examination and as such is subject to the same obligations under rule 33.06 . [ 24 ] I find that the language of rule 33.06 is mandatory and requires preparation and service of a written report following the defence assessment forthwith and without exception. [ 25 ] Rule 33.06 does not contain any exception permitting a defendant to refuse to produce a report where there is no intention to rely on it at trial.

Rather, the Rule is quite specific in that production of a report shall be served forthwith by the party who obtained the report on every other party. [ 26 ] I do not agree with the submissions of counsel for Barrie that there is no basis to require disclosure of the Report of Ms. Ruiter-Kohn on an analysis of s.105 of the Courts of Justice Act and Rule 33 . [ 27 ] It should also be noted that while counsel for Barrie initially took an identical position regarding the production of Ms. Vellone’s Report, ultimately, Barrie served all three defence reports, with the exception of Ms.

Ruiter-Kohn’s report on counsel for the Plaintiffs. Ms. Vellone is also technically not a “health practitioner” as defined under s.105 of the Courts of Justice Act . Nevertheless, her report was produced to the Plaintiffs while Ms. Ruiter-Kohn’s report was not. The status of Ms. Ruiter-Kohn and Ms. Vellone pursuant to s.105 of the Courts of Justice Act is no different. Yet, defence counsel produced one report and not the other. This position is totally inconsistent and without any merit.

Neither is the argument on behalf of Barrie that there was neither a court order or written consent that Rule 33 would nevertheless apply. I find implicit in the dealings between the parties was the understanding that the attendances required by the defence were on consent. There would be no other reason why Mr. McHardy’s counsel would agree to have his client examined by the defence experts. Further, I reject the argument advanced on behalf of Barrie that had the Plaintiff’s counsel requested an undertaking or commitment to serve a report from Ms. Ruiter-Kohn, this would not have been given.

Such an argument has no foundation given the fact that Ms. Vellone’s report and the other defence reports were produced in exactly the same circumstances where Ms. Ruiter-Kohn’s report was not. I am firmly convinced in all the circumstances of this case, there was every expectation that after the examinations of Mr. McHardy by the defence experts, copies of their reports would be produced by Defence counsel to the Plaintiff’s counsel. I believe that if this were not the case, Plaintiff’s counsel would not have been so forthcoming in permitting an examination of Mr.

McHardy by a battery of defence experts without court order. Mr. Justice Wright’s decision in CEC would necessarily involve as an adjunct to the court ordered assessment, production of the report. [ 28 ] Whether the defence takes the position that no other expert will be relying on anything from Ms. Ruiter-Kohn or her meeting with Mr. McHardy and that Barrie would not be calling her as a witness at trial does not affect my ultimate disposition. Whether Barrie takes the position that Ms. Ruiter-Kohn’s vocational assessment does not add anything of substance to the existing information may be true.

Further, it may also be true that the defence accepts the Plaintiffs’ assessment as accurate as of the time it was conducted. Nevertheless, Barrie is obliged to produce a copy of Ms. Ruiter-Kohn’s report and serve it forthwith on counsel for Mr. McHardy. [ 29 ] I would also note that production should also be made of Ms. Ruiter-Kohn’s report in order to promote the interests of fairness and a full disclosure in the litigation process. In this regard, I have considered the decision of Davis v.

Beatty , [7] where Justice Southey held that full disclosure was the key purpose of the Rules at the time when the Rules of Civil Procedure came into force in 1985: The

interpretation I have given to r.33.06 is the only one that would be consistent with the general rule for the

interpretation of the new

rules contained in r.1.04, that is, “these rules shall be liberally construed to secure the just, most expeditious and least expensivedetermination of every civil proceeding on its merits”. One of the purposes of the new rules is to encourage full disclosure between theparties at an early stage with a view to encouraging early settlement and the avoidance of trial by ambush. The

interpretation is also consistent with the view expressed by Osler J. in Nyssen v. White (1984), (ON SC), 45 O.R. (2d) 598 at p. 600, 43 C.P.C. 108, 7 D.L.R. (4th) 681, leave to appeal to the Divisional Court refused 45 C.P.C. 108n (Ont.Div.Ct.), inwhich he allowed an appeal from a decision of a Judge who ordered a medical examination of the other party without imposing thecondition that the report be made available to the other parties.

Osler J. referred to the new r.33.06 that was not then in force and said: In my view, subrule (2) of the above proposed rule accords with the general practice that has developed in this province, and withcommon sense. While the rules do not, of course, have any force until promulgated and proclaimed, the procedure they contemplate isone which, in my view, should be followed in the present case. It is abundantly clear that disclosure, for the purpose of defining issuesand making possible and encouraging early settlement, has more and more become the rule, and not only in this province [sic].

CONCLUSION [30] For the reasons given, I conclude that Barrie produce a copy of the report of Renee Ruiter-Kohn on her assessment of Mr.McHardy at his parents’ home on November 4, 2011, forthwith to Mr. McHardy’s counsel. The production of this vocationalassessment report is consistent with the application of Rule 33 and the promotion of the interests of fairness and full disclosure. [31] As for costs, the parties have agreed that the successful party would be entitled to partial indemnity costs in the amount of$2,500 all inclusive. [32] I find that the Plaintiffs are the successful parties on this motion.

The Defendant City of Barrie is ordered to pay to thePlaintiffs the sum of $2,500 all inclusive within 30 days. DiTOMASO J. Released: September 5, 2013