Dr. Gerber

In a personal injury action arising from a motor vehicle accident where liability was admitted, the defendants moved for an order compelling the plaintiff to attend a second defence psychiatric examination under s. 105 of the Courts of Justice Act and Rule 33 of the Rules of Civil Procedure.

The plaintiff opposed the request, arguing the defendants had already conducted an examination years earlier.

The court applied the factors from Bonello v. Taylor and found that trial fairness warranted a further examination, particularly given that the original defence report would be more than five years old at trial, new expert reports had been served by the plaintiff, and evidence suggested the plaintiff’s psychological condition may have deteriorated.

The court concluded that a current psychiatric assessment was necessary to permit the defence to fairly respond to the plaintiff’s expert evidence and to assist the trier of fact.

The motion was granted and the plaintiff was ordered to attend the psychiatric examination.

The defendants appealed a Master's order that struck out one of two defence neuropsychological assessments of the plaintiff.

The Master had varied his original order allowing two assessments after discovering the defendants had entered into an undisclosed settlement agreement, reasoning they were no longer adverse in interest.

The Superior Court allowed the appeal, finding the Master erred in law.

The court held that the defendants remained adverse in interest despite the settlement, and that adversity is not a strict prerequisite for multiple defence medicals under section 105 of the Courts of Justice Act if fairness requires it.

Both assessments were permitted, but the defendants were ordered to pay full indemnity costs and fund an additional assessment for the plaintiff as a sanction for failing to disclose the agreement and breaching the examination protocol.

The insurer sought to compel the applicant to attend a psychiatric examination to determine his ongoing entitlement to income replacement benefits following a motor vehicle accident.

The applicant refused, arguing the insurer had already fully explored the psychological component of his claim through previous assessments and that the request was untimely.

The arbitrator found that because the applicant had recently obtained his own psychiatric report, which his counsel failed to disclose until the submissions on this motion, it was reasonably necessary for the insurer to obtain its own psychiatric opinion.

The insurer's request for the examination was granted.