COURT OF APPEAL FOR ONTARIO
RE:
TED GIANCOULAS (Appellant) –and– AETNA LIFE INSURANCE COMPANY OF CANADA (Respondent)
BEFORE:
SHARPE, CRONK and GILLESE JJ.A.
COUNSEL:
Jonathon Kahane-Rapport, for the appellant
Marla Cox, for the respondent
HEARD:
April 23, 2002
RELEASED ORALLY:
April 23, 2002
On appeal from the order of Justice Myrna L. Lack dated June 21, 2001.
E N D O R S E M E N T
[1] The appellant seeks to set aside the order of Lack J. dated June 21, 2001 dismissing his action for failure to attend for defence medical examinations as required by the order of Goodman J. dated August 10, 2000. In fact, the appellant did attend for the examinations, although he left before they were completed and made no effort thereafter to reschedule an appointment to complete them.
[2] On the record before this court, it is clear that the appellant has been dilatory and uncooperative in attending to complete the defence medical examinations. Nonetheless, the dismissal of his action is a measure of last resort which should only be utilized in the clearest of cases. Further, we are not satisfied that permitting the appellant one further opportunity to attend to complete the required defence medical examinations will result in non-compensable prejudice. Moreover, it is not clear that the motions judge addressed these principles.
[3] Accordingly, the appeal is allowed in part, the order of Lack J. dismissing the appellant’s action is set aside, the appellant is required to forthwith pay to the respondent the sum of $1,287.50 on account of his missed appointment at Work Able Centres Inc. on September 12, 2000 and the appellant shall attend to complete the required defence medical examinations on the first date available to the respondent’s expert, failing which the appellant’s action shall be dismissed on motion of the respondent.
[4] We see no reason to interfere with the costs award of the motions judge. The motion below was caused by the conduct of the appellant. No costs are awarded in respect of this appeal.
“Robert Sharpe J.A.”
“E.A. Cronk J.A.”
“E. Gillese J.A.”
