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.