Hopper v Summervale: Anna's Civil Procedure Memo

Purpose

You asked me to research the question of whether Andrew Hopper, a child, could be exempted from oral discovery in a personal injury suit against Summervale Camp for injuries sustained by him and his parents. The defendant has filed a motion to compel Andrew's oral discovery, returnable October 15, 2013. Case law focuses on the question of psychological harm linked to a pre-existing medical condition. We have reasonable arguments and evidence to establish that Andrew would suffer irreparable harm if forced to participate in oral discovery, likely sufficient to defend a motion to compel Andrew to attend discovery.

You instructed me to not consider the law on competence or whether Andrew is competent to give evidence.

Facts

Andrew was diagnosed at age nine with generalized anxiety disorder (GAD). He suffered for two years with significant, persistent, and uncontrollable anxiety. From age 11 to 15, with medication and cognitive behavioural therapy, he had only minor symptoms until his injuries as a camper at Summervale Camp. These injuries are the basis of the litigation against Summervale.

In addition to the serious physical injuries (Andrew was hospitalized for three weeks, requiring surgery and intensive physiotherapy, and he lost 15% of his mobility) and losing a term of high school and a promising football career, he suffered a reappearance of serious GAD symptoms.

According to his parents, the GAD symptoms have left him unable to deal with people in social situations, and he has trouble making eye contact with anyone other than his parents and his psychiatrist. In particular, he panics uncontrollably in new situations and is often unable to sustain a conversation or respond to questions.

A month after the injury, he restarted medication and began intensive cognitive behavioural therapy with his psychiatrist, Dr. Sandra James. She reported to his parents that he will require extensive therapy, both medication and cognitive behavioural, in order to gain back his pre-injury level of psychological stability. In Dr. James' opinion, Andrew is not yet psychologically stable enough to deal with his injuries and their consequences. She recommended that any discussion of his injury, even in therapy, let alone litigation, be handled very delicately to avoid further injury.

In August, we asked Dr. James for more information. In a letter to us, Dr. James wrote that forcing Andrew to describe the accident in oral discovery would likely cause him irreparable psychological harm. She added that he is having great difficulty interacting with other people and may be unable to respond to questions. Even if able to answer questions, his responses may not be reliable.

Dr. James' testimony would be of great assistance in responding to the defendant's motion to compel Andrew to attend oral discovery; however, she is now unavailable for several months and cannot be reached to swear an affidavit or provide a report, unless we were able to secure a lengthy adjournment.

Dr. James' absence leaves us with the following documentary evidence:

• Dr. James' notes and Andrew's file
• Dr. James' report to Andrew's parents, pre-litigation
• The letter to us explaining Andrew's likely reaction to oral discovery.

Issue

1. Will a court exempt a child from oral discovery where there is a risk of harm by aggravating a pre-existing medical condition?
2. What will the court accept as cogent evidence of the harm where the primary witness, the treating psychiatrist, is unavailable to provide evidence?

Brief Answer

1. Yes. There is a reasonable chance we would succeed in exempting Andrew from oral examination. The court has discretion to exempt a party from oral discovery where there is a risk of psychological harm. The harm must be proved by cogent evidence, preferably from the party's doctor. Where a minor party is involved, courts have been more flexible in the evidence they accept.
2. Ideally, the cogent medical evidence would be an affidavit or report from Andrew's psychiatrist describing the risk of harm to Andrew. Dr. James is currently unavailable so we should seek an adjournment, if possible. If Dr. James is not available in the foreseeable future, we have three alternatives:
   • Andrew could be examined by another psychiatrist;
   • Counsel or Bill Hopper could swear an affidavit setting out Dr. James' written and oral communications, as well as their own knowledge of Andrew's history. This is hearsay, but there is support in the case law;
   • Dr. James' report could be filed as a Rule 53 report.

Rules Governing Examination for Discovery

Rule 31 of the Rules of Civil Procedure governs examinations for discovery. Rule 31.03(1) provides that a party to an action "may examine for discovery any other party adverse in interest...".

Rule 2.03 allows for an exemption from the application of a Rule:

The court may, only where and as necessary in the interest of justice, dispense with compliance with any rule at any time.

Rule 1.04 provides that the Rules are to be "liberally construed to secure the just, most expeditious, and least expensive determination" of every proceeding on its merits.

Rule 31.03(5) applies to the examination for discovery of persons under disability:

Where an action is brought by or against a party under disability,

1. the litigation guardian may be examined in place of the person under disability; or
2. at the option of the examining party, the person under disability may be examined if he or she is competent to give evidence

Rule 53.02(1) deals with reports:

Before or at the trial of an action, the court may make an order allowing the evidence of a witness or proof of a particular fact or document to be given by affidavit, unless an adverse party reasonably requires the attendance of the deponent at trial for cross-examination.

Analysis

Courts do not easily permit exceptions to the well-established requirement in Rule 31.04(1) that a party to an action is entitled to examine for discovery any other party adverse in interest. However, case law holds that the right of discovery is not absolute and, under Rule 2.03, the court will determine whether an exemption is appropriate. The onus rests on the party seeking the exemption and the court must be satisfied that a clear case has been made out on the evidence.

1. Courts will exempt child plaintiffs from oral discovery if there is cogent evidence that the child risks psychological harm from participating in the discovery process.

To succeed under Rule 2.03, we will need to establish two elements:

1. the court's discretion to exempt Andrew from oral discovery
2. the standard of proof for an exemption from oral discovery

a. The court has discretion to exempt a child from oral discovery

Courts have not always considered psychological harm in determining exemptions from oral discovery. Competence to give evidence, rather than harm, is the operative factor in Rule 31.03(5). In the first case to consider the issue, Nyilas et al. v Janos (1985), 50 C.P.C. 91, the Master refused to exempt two boys from attending oral discovery, even though a report from a psychologist showed a "serious risk that they may suffer psychological damage if they are required to submit to such examinations". The boys were two of four plaintiffs in a claim for damages in connection with the death of their sister when she was struck and killed by an automobile. One of the boys was an eyewitness to the accident. In his reasons, the Master said that if the boys were competent, he had no discretion to refuse the order sought, even if satisfied there would be psychological harm. The only basis for refusing to order that they be examined was if the examination of multiple parties would be "oppressive, vexatious or unnecessary."

The courts no longer take this position and are willing to exercise discretion to grant an exemption from oral discovery where cogent medical evidence shows psychological harm would likely result. The analysis in Nyilas has been rejected by subsequent courts and is likely no longer valid law in Ontario.

b. The standard of proof is the balance of probabilities

Courts now look to persuasive medical evidence of harm to exempt parties from examinations under Rule 31. The questions arising from the case law are how certain the risk of harm needs to be and whether courts will treat infant plaintiffs differently.

The risk of harm does not need to be a certainty

Early decisions required certainty of harm. More recent cases say that certainty is too high a standard. The risk of harm does not need to be a certainty before a court will grant an exemption; courts have come to accept proof of harm based on the balance of probabilities. The evidence in the Hopper matter should meet either standard.

In an early case, F(J) v Roman Catholic Episcopal Corporation for the Diocese of Toronto in Canada (1996), 42 O.R. (3d) 312 (Gen. Div.), Lax J. did not grant an exemption from oral discovery in the case of the adult plaintiff in a sexual abuse case. Although Lax J. accepted that the Rules may be dispensed with in the interest of justice, she held that an exemption could only be granted "in the clearest and most positive of cases, where the avoidance of certain injury to a litigant, offsets the rights of the litigants to due process under the Rules..."

There is a good argument that F(J) would not apply to our case because the facts differ significantly. In F(J), the plaintiff was an adult and had no specific, pre-existing medical condition aggravated by the injury in issue. These two material facts would likely be sufficient to distinguish this case.

Recent cases confirm that certainty is too high a standard, even in the case of adults. In Mohanadh v Thillainathan, 2010 ONSC 2678, an adult with schizophrenia was exempted from oral discovery based on reports from a doctor explaining the plaintiff's condition and how oral discovery would increase anxiety and symptoms. Similarly, in Ontario (Attorney General) v Singer, 2012 ONSC 5485, Brown J. held that an exemption, even for adult parties, required only cogent medical evidence of the risk of harm. The motion for exemption failed in that case because there was insufficient evidence of the plaintiff's illness or effects on her condition potentially resulting from oral discovery.

Thus, it is likely that in Andrew's case the court will not require proof of certain harm, and will instead be satisfied by the balance of probabilities test.

However, even if the principle of "certain injury" in F(J) applies, the evidence from Dr. James will support the argument that Andrew should be exempt from examination. Andrew's diagnosis of severe GAD pre-existed the injury, and his GAD recurred as a direct result of the injury. Dr. James has stated that Andrew will certainly be harmed further if forced to attend oral discovery.

The court has more flexibility with respect to child plaintiffs

Courts have accepted a broader range of evidence in cases involving children. In Kidd (K) v Lake (1998), 42 O.R. (3d) 312 (Gen. Div.), Aitken J. denied leave to appeal from the order of a motion judge exempting a child from oral discovery on two bases: the court's overriding responsibility to protect the interests of children in the context of the confrontational rigors of litigation, and courts should not make orders that, on a balance of probabilities, would have the effect of causing a child psychological harm. Aitken J. reviewed a wide range of evidence (discussed below) to rule that the child should be exempt from discovery.

To strengthen the case for an exemption for Andrew, we should argue the proposition that the court has a duty to protect vulnerable minors from a risk of harm, proved on the balance of probabilities. Andrew is a minor, with a pre-existing psychological problem. His psychiatrist has given her opinion that Andrew is not psychologically able to deal with the injury and its consequences and that Andrew would suffer irreparable harm if forced to deal with the injury now.

Therefore, the evidence of Dr. James should be sufficient to support the position that Andrew be exempted from oral discovery.

2. How to prove the risk of harm

Dr. James' absence means we have a practical problem bringing the required, cogent evidence before the court on this motion. There is no precise standard on what evidence the court will accept, but the cases do provide some guidance.

An affidavit setting out Dr. James' advice to us sworn by Andrew's counsel would be one possibility. However, there are some risks with this approach. In F(J), an affidavit from the plaintiff's lawyer was not accepted as medical evidence because the court found it to be "clearly hearsay". It was the only evidence offered to prove the harm and the affidavit could not adequately replace the medical evidence needed to assist the court in determining whether an exemption was needed. The key to the ruling was that the affidavit was the only evidence offered to prove the harm.

With a broad base of evidence to tender, an affidavit by counsel or Andrew's father, Mr. Hopper, would be a possible solution. The most useful insights on the issue of proof are in the analysis by Aitken J. in Kidd, where the overall evidence of the child's current condition was sufficient to support a finding that, on the balance of probabilities, the child would be further harmed psychologically by attending oral discovery. The child to be examined was 10 years old at the time of the motion to compel oral discovery. She had been struck by a car, lost a leg, and suffered significant psychological trauma and physical and emotional shock. The motion judge had denied the defendant's application to compel her to submit to oral discovery because of the "real potential of psychological damage" to the child. Aiken J. agreed with this ruling and dismissed the defendants' leave to appeal.

Aitken J. considered the evidence before the motion judge. The only medical evidence had been a letter from the child's family doctor focusing on her educational needs and confirming evidence of deterioration in her school performance, her increased distractibility, her lowered attention span, and her reduced physical energy. Aitken J. held the medical evidence offered was only marginally relevant, noting that the doctor's letter was not up to the court's expectations.

However, she accepted that other evidence of the horrific injury and severe trauma; the changes to the minor's life, her age, and her unwillingness to talk about the accident could supplement the medical evidence. She concluded that the challenge the minor was experiencing would be a problem for the strongest adult and ruled the motion judge had been correct in granting the exemption.

The deciding factor was the concern the courts have for the welfare of children in the confrontational rigors of litigation.

Aitken J. also provided advice to litigators on the evidence. She advised counsel to consider the totality of evidence available and to put the fullest case before the court. A last-minute doctor's letter would not likely be sufficient by itself, but where supported by other evidence of the nature of the injury, the age of the child, and other facts demonstrating the potential for harm, a persuasive case can be made.

The Kidd approach was accepted recently in Mohanadh v Thillainathan, where the judge cited Aitken J.'s reasoning and exempted the plaintiff from oral discovery on the basis of clear medical evidence in the form of reports and letters appended to an affidavit sworn by one of the plaintiff's lawyers. With reports prepared solely for the purpose of addressing the question of risk of harm to the plaintiff, the totality of the evidence adequately demonstrated the likely harm to the plaintiff, who suffered from severe and chronic mental illness.

These cases offer the opportunity of presenting the evidence on this motion to the court in a number of ways: a new doctor's evaluation, backed up by evidence of the harm Andrew has already suffered, or affidavits by counsel or Andrew's father, Mr. Hopper, attaching the earlier report prepared by Dr. James.

The evidence should meet the cogency requirement, as described in Kidd and Mohanadh. We have cogent evidence of the likely harm to Andrew: the report of Dr. James to Andrew's parents, a letter from Dr. James responding to our request for information on the risks to Andrew, and Dr. James' notes in Andrew's medical file. However this evidence is presented to the court, it should be sufficient to meet the test in law.

Recommendations

We should continue to try to obtain the best medical evidence possible.

We should argue first for an adjournment to enable us to produce direct medical evidence, preferably from Dr. James. Considering her current unavailability and the need to proceed with the main action, an adjournment may not be feasible. We could investigate whether we might send a notary to Dr. James to swear an affidavit that we would prepare.

Another alternative would be to have Andrew examined urgently by another psychiatrist who could provide the necessary report.

On the motion for adjournment, even if unsuccessful, at least the court will hear why Dr. James is not able to provide evidence and we could argue that we are forced to proceed with the best evidence available. Either or both:

• Bill Hopper's affidavit setting out facts based on Dr. James' last report and oral communications to him on Andrew's condition. This hearsay evidence is not ideal but we would argue that it is likely still better than the evidence in Kidd, where the evidence was only indirectly relevant to the harm that would be caused by the examination. Mr. Hopper's affidavit could also speak to his own knowledge of Andrew's psychological history and the effects of the injuries on his son.
• An affidavit by counsel, reporting on Dr. James' observations and recommendations in her letter to us on Andrew's prognosis. The hearsay problems would likely be significant.

We should also explore whether we could file Dr. James' report as a Rule 53 report on the motion and I will follow up further on this issue, if needed.