ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LANE, SPEIGEL AND PITT JJ.
B E T W E E N:
TASHA MCGINN and BEVERLEY MCGINN
Plaintiffs (Respondents)
- and -
NORMAN P. BEAUDOIN and SUZANNE M. BEAUDOIN
Defendants (Appellants)
Barry Chobotar, for the Plaintiffs
Dwain C. Burns, for the Defendants
HEARD: November 19, 2004
LANE J.: (Orally)
1This is an appeal from an Order of Wilson J. dismissing an appeal from Master Sedgwick allowing the defendant to have certain medical examinations of the plaintiff, Tasha McGinn, but adding a condition to which the appellants object.
2This action arises out of a pedestrian and motor vehicle accident that occurred on December 30, 1998. In the statement of claim, the respondent/plaintiff claimed that she sustained serious permanent and catastrophic personal injuries resulting in the impairment of important physical mental or psychological functions. The most serious injury alleged is a traumatic brain injury.
3The defendants/appellants requested that the respondent attend defence medical examinations, which request was refused. The appellants then brought a motion before Master Sedgwick in order to compel the respondent to attend defence medical examinations. It was Master Sedgwick’s decision to require the respondent to attend defence medical examinations before an orthopaedic surgeon, a psychiatrist and a neuropsychologist.
4Before Master Sedgwick it was contended that the order requested should not be made because the respondent had already been examined on several occasions by doctors on behalf of the Statutory Accident Benefits carrier.
5As it happens the respondent was uninsured at the time of the accident and therefore the Statutory Accident Benefits carrier was the appellant’s insurer, Liberty Mutual.
6Notwithstanding that these examinations had taken place, the Master required the respondent to be further examined in the tort action. This was a discretionary order which could only be reversed if it was exercised upon a wrong principle.
7The respondent appealed Master Sedgwick’s order to the Superior Court. The motions Judge gave brief reasons in which she made no finding that the Master had erred in any way and dismissed the appeal. However, she added a condition in the following language:
“On condition that the appellants would not be calling at trial any experts retained by the no-fault insurer with respect to accident benefits, both with respect to existing reports and future reports.”
8The appellants appealed this condition to this Court by leave granted by Matlow J., who concluded that there was good reason to doubt the correctness of the condition imposed by paragraph 1 of the Order. The appeal raises the issue of whether the appellants ought to be identified with the insurer as underlies this decision.
9In our view, the condition cannot stand. Firstly, the Master did not include such a condition in his Order; that was a matter of discretion. It could therefore only be added on appeal by finding that the Master had erred in principle in not adding such a condition. The reasons of the motions Judge disclose no such finding.
10Secondly, the endorsement of the motions Judge indicates that the condition was imposed based on the statutory limitation of the number of experts who can be called at trial. This is a matter which, by statute, is expressly subject to the discretion of the trial Judge.
11It was sought to support the condition before us on the basis of limiting the total number of examinations to which the respondent can be subjected. In our view, this condition does not speak to that problem which must await any motion by the defendants for further examinations. The appeal is therefore allowed.
12As to costs, having heard the submissions of counsel, we award the costs to the appellant and fix them at $2,000 for the appearance today and $1,500 for the appearance before Justice Matlow, the costs of which were reserved by him to this panel. The total is accordingly, $3,500.
LANE J.
SPEIGEL J.
PITT J.
Date of Reasons for Judgment: November 19, 2004
Date of Release: November 26, 2004
COURT FILE NO.: 739/03
DATE: 20041119
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LANE, SPEIGEL AND PITT JJ.
B E T W E E N:
TASHA MCGINN and BEVERLEY MCGINN
Plaintiffs (Respondents)
- and -
NORMAN P. BEAUDOIN and SUZANNE M. BEAUDOIN
Defendants (Appellants)
ORAL REASONS FOR JUDGMENT
LANE J.
Date of Reasons for Judgment: November 19, 2004
Date of Release: November 26, 2004