Dr. Grant Iverson

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 plaintiffs moved to set aside an order that required the plaintiff to undergo two defence neuropsychological examinations.

The original order was made on the assumption that the defendants were adverse in interest.

It was subsequently discovered that the defendants had entered into a secret settlement agreement ending all adversity between them six months prior to the order.

The court found that the failure to disclose the agreement altered the landscape of the litigation.

The court varied the original order to permit only a single neuropsychological examination, finding that allowing two examinations by experts in the same field for non-adverse defendants was improper.

The court declined to exclude both reports entirely, finding that such a consequence would be disproportionate, but awarded the plaintiffs full indemnity costs.