Marianne Motha

Following a defence motion compelling the plaintiff to attend certain defence medical examinations, the court addressed costs after partial success on the underlying motion.

The defendant succeeded in obtaining an order requiring attendance at a vascular surgery examination but not an ophthalmological examination.

Applying s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court considered proportionality, complexity, divided success, and the reasonable expectations of the parties.

The defendant’s request for nearly $13,000 in costs was found disproportionate for a one‑hour motion.

The court fixed partial indemnity costs at $4,000 payable by the plaintiff.

The defendant brought a motion seeking an order compelling the plaintiff to attend further defence medical examinations with a vascular surgeon and an ophthalmologist in a motor vehicle personal injury action.

The court considered the discretionary authority under s. 105(2) of the Courts of Justice Act and Rule 33.02(2) of the Rules of Civil Procedure governing additional medical examinations.

The plaintiff had not pleaded vision loss and existing expert evidence suggested the visual impairment was unrelated to the accident, making an ophthalmological examination unnecessary and disproportionate.

However, causation of the plaintiff’s significant leg injuries remained a central issue and an orthopaedic expert had raised the possibility of vascular disease, recommending assessment by a vascular surgeon.

The court held that fairness required allowing the vascular examination but not the ophthalmological assessment.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits for caregiving, housekeeping, and home maintenance.

The insurer terminated these benefits, arguing the applicant failed to provide requested information under section 33 of the Schedule and that she was no longer disabled.

The arbitrator found that the applicant's pre-existing chronic pain was significantly exacerbated by the accident, resulting in a substantial inability to perform her pre-accident caregiving and housekeeping duties.

The arbitrator also held that the insurer's requests for additional medical information and an Election of Benefits were unreasonable, as the insurer already had sufficient information to determine entitlement.

The applicant was awarded the claimed benefits and interest on the overdue amounts.

The insurer sought a stay of arbitration under section 50(b) of the Statutory Accident Benefits Schedule until the applicant attended a psychiatric examination under section 42.

The applicant argued the examination was unreasonable because the insurer had already terminated her income replacement benefits based on physical assessments and had acted in bad faith.

The arbitrator found that the applicant had placed her psychological condition in issue by submitting a psychologist's report indicating she was disabled due to psychological impairments.

The arbitrator held that the requested examination was reasonably required and ordered the applicant to attend the assessment before proceeding to arbitration on her income replacement benefits claim.