Judge Rules that Defendant’s Request for Further Examinations are not Reasonable - Rocca v 6131646 Canada Inc., 2021 ONSC 8445 (CanLII)

January 07, 2022, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Date of Decision: December 22, 2021

Heard Before: Associate Justice Jolley

The plaintiff alleged she suffered serious and permanent physical, psychological and cognitive impairments as a result of a fall that occurred in August 2011. She has produced three medical reports that she relies on as evidence of her injuries:

• A medicolegal report by Dr. Gerber, psychiatrist, September 2016
• An orthopedic consultation by Dr. Ogilvie-Harris, orthopedic surgeon, September 2016
• A medicolegal report by Dr. Mailis, physiatrist, September 2016

The plaintiff had also attended three defence medicals at the request of the defendant:

• An orthopedic Surgeon Dr. Marks, August 2020
• A psychiatrist Dr. Hines September 2021
• A neurologist Dr. Gladestone

he defendant brought a motion for an order compelling the plaintiff to attend yet another medical examination with a physiatrist Dr. B. Clark in February 2022 who is qualified to speak about the physical impairments the plaintiff claims to have. The plaintiff declined to attend this examination.

The defendant argues it should be granted leave to compel this examination to ensure trial fairness and that the trial is determined on its merits. It also argues there is no prejudice to the plaintiff even though this is a 2013 action and has been set down for trial and the examination date is February 2022. They also reject any contention that it is onerous for the plaintiff to attend in person during the pandemic.

The onus is on the defendant to provide sufficient evidence to the court of the need for this further examination and it must file evidence from someone with knowledge of the case to explain what unfairness it alleges will befall if the examination is not permitted. 

The defendant argues that several passages of the report from Dr. Mailis need to be addressed otherwise their case will be seriously prejudiced in the eyes of a jury.   

Justice Jolley reviewed the entirety of the medical evidence before him and determined that the defendant's own expert Dr. Marks commented extensively on the same issues that Dr. Maillis raised and in fact, disagreed with the conclusions of Dr. Maillis’ report. 

Justice Jolley concluded that there was no evidence of any limitations on Dr. Marks’ ability to opine on the issues raised by Dr. Mailis, nor is there any evidence before him concerning what the additional examination would entail or how it would differ from previous defence examinations.

On the basis that the defendant did not provide sufficient evidence to persuade the court of the necessity of further examination in order to obtain a fair trial, the motion was dismissed.

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