Crista L. Rea

The defendants brought a motion seeking an order compelling the plaintiff to attend a defence neuropsychological examination in a personal injury action arising from a motor vehicle accident.

The plaintiff alleged significant physical, psychological, and cognitive impairments, including a head injury and memory problems, and had obtained expert reports including a neuropsychological opinion.

The defendants had already arranged three defence medical examinations but sought a fourth assessment by a neuropsychologist to respond to the plaintiff’s expert evidence.

Applying the principles of necessity, fairness, and prejudice under s. 105 of the Courts of Justice Act and Rule 33.02 of the Rules of Civil Procedure, the court held that a neuropsychological assessment was necessary to level the playing field.

The court found the defence would be prejudiced without an opportunity to respond to the plaintiff’s neuropsychological report and permitted the examination to proceed over one and a half days across two days.

The moving defendants sought summary judgment dismissing claims and cross‑claims arising from a motor vehicle collision where a driver turning left collided with an oncoming vehicle and pedestrians were injured.

The court considered whether there was a genuine issue requiring a trial under Rule 20.04 of the Rules of Civil Procedure.

The responding defendant argued the oncoming driver may have contributed to the accident by slowing or failing to keep a proper lookout.

The moving defendants relied largely on unsworn statements and an affidavit from counsel rather than firsthand evidence.

The court held the evidentiary record was insufficient and that a trier of fact could potentially find contributory negligence by the oncoming driver.