Courneyea v Mazzuca, 2019 ONSC 2105 (CanLII)

June 17, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Courneyea v Mazzuca, 2019 ONSC 2105 (CanLII)

Date of Decision: April 2, 2019
Heard Before: Master Jolley

Adam Cournyea was injured in a car accident on September 13, 2012 and was examined for discovery on February 9, 2015. The pre-trial conference is scheduled for November 10, 2020 and a 25-day trial is set to commence on January 18, 2021. 

The defendants, Nino Mazzuca and Toyota Credit Canada Inc. brought a motion seeking an order to require the plaintiff Adam Courneyea to attend an IE for discovery. The parties agreed that to be successful with their motion, Nino Mazzuca and Toyota Credit had to establish the exceptional circumstances which would warrant further examination of Nino Mazzuca. They also agreed that a substantial deterioration in a plaintiff’s condition could constitute exceptional circumstances but the parties disagreed about whether Nino Mazzuca’s condition had substantially deteriorated since his examination in February 2015. 

Nino Mazzuca and Toyota Credit argued that Nino Mazzuca had not complained of significant psychological issues at the time of his 2015 examination and since then, he has been determined catastrophically impaired by his accident benefit insurer due to his psychological condition.  Mr. Mazzuca argued that all his medical records and reports had been produced and he could not be shed light on his condition.

Mr. Mazzuca indicated that psychological differences since February 2015 were a difference in his symptoms but and not his condition. Nino Mazzuca argued he has and continues to suffer from depression. Master Jolley did not “believe such a fine parsing [was] warranted.” 

Nino Mazzuca and Toyota Credit were granted leave to conduct a further examination of Nino Mazzuca on issues that were not covered during the first examination based on a review of the medical documents by Master Jolley produced both before and after the February 2015 examination and Nino Mazzuca’s evidence given at his examination with respect to his psychological condition.

The Master accepted Nino Mazzuca’s position that there was reference to his psychological condition in the reports delivered before the February 2015 examination for discovery, however the injuries were of a different magnitude. Master Jolley held: 
 

Based on Nino Mazzuca’s post-discovery diagnosis of PTSD, his reported behavioural and emotional changes, the fact that he had taken steps toward attempting suicide and had been admitted to hospital on a Form 1 for treatment for a month, I find these changes are more than a natural extension or worsening of the prognosis on which he was examined at discovery. I find there has been a substantial deterioration in Nino Mazzuca’s psychological condition that, on these facts, constitutes an extraordinary circumstance.  I am not prepared to say that Nino Mazzuca will not have something useful to offer during his examination. He may speak to his own symptoms, his daily experiences and future outlook, something that the medical doctors are only able to report second hand. 


 

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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us toll-free at 1-866-414-4878.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.

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