G. McKenna

The defendant brought a motion seeking an order requiring the plaintiff to undergo psychological testing as part of a defence medical examination in a civil action alleging historical assaults during a domestic relationship.

The defendant argued the testing would assist a psychiatrist retained by the defence in forming an opinion and responding to the plaintiff’s psychological expert evidence.

The court held that additional defence medical examinations are discretionary and require clear and compelling evidence demonstrating necessity.

The proposed testing was characterized by the defence experts only as helpful or beneficial rather than necessary.

The court also considered the risk of creating an imbalance in expert evidence and the potential delay to the scheduled trial.

The motion for psychological testing was dismissed.

Following unsuccessful defence motions seeking dismissal of a long‑standing medical malpractice action for delay, the parties made submissions regarding costs.

Although the plaintiffs succeeded in resisting dismissal, the court found they had demonstrated a persistent lack of diligence in prosecuting the claim, which had been outstanding for over 12 years.

The defendants had established inordinate and inexcusable delay but failed to prove prejudice sufficient to justify dismissal.

In exercising discretion under section 131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, the court concluded the defendants had reasonably brought the motions in light of the plaintiffs’ conduct.

Accordingly, the court declined to award costs to either party.

The defendants brought motions to dismiss a medical negligence action for delay after the matter had remained unresolved for more than twelve years and had been struck from the trial list without restoration.

The court found that the delay was both inordinate and largely inexcusable, identifying several extended periods where the plaintiffs failed to advance the litigation with diligence.

However, the defendants did not establish actual prejudice and the plaintiffs successfully rebutted the presumption of prejudice by demonstrating that contemporaneous medical records and discovery transcripts remained available to refresh witnesses’ recollections.

Because the evidence did not establish a substantial risk that a fair trial was no longer possible, the court declined to impose the severe remedy of dismissal for delay.

The motions were dismissed but the court warned that further delay could justify a renewed motion.