Court File and Parties

COURT FILE NO.: 8351/14 DATE: 2019-02-28 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Maria Matic, plaintiff AND: Salvatore Timpano, defendant

BEFORE: Mr Justice Ramsay

COUNSEL: Ian Barry for the plaintiff; Robert P. Budgell for the defendant.

HEARD: February 27, 2019

Endorsement

[1] The defendant moves under s.105 of the Courts of Justice Act for an order requiring the plaintiff to submit to a medical examination. As the action was not set down with his consent, he does not need leave to bring the motion.

[2] The plaintiff was injured in a car accident on February 6, 2012 when the defendant made a right turn from the left lane. The statement of claim was issued on January 9, 2014 and served on May 1, 2014. The defendant served a notice of intent to defend on August 12, 2014 and a statement of defence on October 3, 2014. Examinations for discovery were held on August 5, 2015. The plaintiff’s undertakings were fulfilled in February of 2016. She made extensive disclosure of her own medical records. In 2016 and 2017 the plaintiff requested mediation four times to no avail.

[3] On May 1, 2018 the plaintiff served notice that she intended to call a physiatrist as an expert witness, together with a copy of the expert’s report. On June 7, 2018 the lawyers had their second and last discussion about settlement. They did not agree.

[4] On August 16, 2018 the plaintiff set the matter down for trial.

[5] On September 26, 2018 the defendant agreed to March 6, 2019 for a judicial pre-trial. Under Rule 53.03 (1), both parties were required to serve a report from any expert witness on whom they want to rely 90 days before the pre-trial, i.e. around December 6, 2018.

[6] Rule 53.03 (2.2) read as follows at the time:

(2.2) Within 60 days after an action is set down for trial, the parties shall agree to a schedule setting out dates for the service of experts’ reports in order to meet the requirements of subrules (1) and (2), unless the court orders otherwise. O. Reg. 438/08, s. 48.

[7] The plaintiff’s report had long since been served. If the defence wanted to call an expert, it had to agree by October 16, 2018 on a schedule for filing its expert’s report. The defence did not do so. Some time around December 3, 2018 counsel for the defendant communicated with the plaintiff’s counsel’s office to arrange a medical examination. On December 3, 2018 counsel for the plaintiff wrote to counsel for the defendant to say that the plaintiff would not voluntarily attend such an examination, and why.

[8] Counsel for the defendant retired at the end of December 2018. New counsel for the defendant arranged an appointment with Dr Michael Ford for January 29, 2019 and then for February 11, 2019. On February 13, 2019 defence counsel wrote to counsel for the plaintiff to say that he had instructions to bring the present motion. The motion was filed on February 19, 2019.

[9] The plaintiff was 70 years old at the time of the accident. She is now 77. She had some medical issues before the accident. She claims chronic pain and there is objective evidence of problems with her spine. Medical evidence will be relevant.

[10] The order in question is in theory discretionary. Applicable considerations are set out in Burden v. Shoebottom, Younan v. Persaud, 2011 ONSC 2129, Galea v. Firkser, 2013 ONSC 1666 and Lakhani v. West, 2019 ONSC 1327. The court has to balance the substantive right of the defendant to have a fair chance to reply to the plaintiff’s medical evidence with the plaintiff’s right not to be prejudiced by a last-minute motion or unnecessary examinations. Generally speaking, the decisions that have refused defence medical examinations have involved subsequent or multiple examinations. I am not insensitive to the considerations mentioned in Hatch v. C.B. Bus Lines Ltd. and Kitchenham v. Axa Insurance, but in general the privacy considerations tend not to rule out a single medical examination in the case law that I have seen. There is case law, however, that has justified the denial of a first order under s.105 because of the defendant’s delay in asking for it: Kendall v. Sirard, 2007 ONCA 468.

[11] In the present case, two factors seem important to me. First, there is extensive medical evidence apart from the plaintiff’s expert, so the defendant is not facing the prospect of defending a case that depends substantially on the evidence of an unanswered expert. I also note that even if I order a medical examination, the trial judge may not allow the expert to testify because of his failure to comply with Rule 53.03.

[12] The second factor is the delay by the defendant in seeking a report and its effect on the plaintiff. A further medical examination would give the plaintiff the right to produce a report in response. That could not be done anytime soon. The effect would be to leave uncertainty as to whether the defence report and any responding report would be admissible at trial as of right, or to occasion an adjournment of the pre-trial into the summer or autumn. It is not possible to be sure when either report would be ready. I am not satisfied that if I order the examination the trial could proceed at the November 2019 sittings. The plaintiff is getting on for 80. She needs a trial to determine whether she is entitled to compensation or not. She cannot be adequately compensated for the delay that will ensue if I grant this last-minute request. The prejudice to her and to the orderly administration of justice outweighs the disadvantage that the defence has brought on itself.

[13] When negotiations failed in June of 2018 the defence knew that they would have to get their own expert, if they wanted one. Moreover, once the plaintiff’s counsel made it clear on December 3, 2018 that the plaintiff would not submit voluntarily to a medical examination, in the words of MacFarland J.A. in Kendall, at para. 41, “it was incumbent upon the defence to immediately seek an order pursuant to s. 105 of the Courts of Justice Act.” In Kendall the plaintiff’s refusal came in July 2005 and the trial was scheduled for the following October with the result that any expert’s report had to be served by mid-August. The defence brought its motion in early September. The motion judge refused it. The Court of Appeal in effect upheld that decision.

[14] Here, the plaintiff’s refusal was made known on December 3, 2018. The deadline for serving the report expired a few days later. The defence made no effort to bring the present motion until February 21, 2019.

[15] Mr Budgell urged me to give weight to the fact that no trial date had been set. That is true, but under since 2008 it is the judicial pre-trial that determines the deadline for submitting expert reports. The scheduling of the pre-trial is crucial to the scheduling of the trial. The pre-trial is intended to help the parties come to terms either on settlement or on allotment of court time to the remaining contested issues. Neither can be done meaningfully with expert reports outstanding. Parties scheduling pre-trials without meaning to prepare for them adequately has been a problem of some significance for this court since the amendments to the Rules in 2008.

[16] Looking at this delay in the context of the conduct of the entire action, I see no legitimate reason or explanation for it. Defence lawyers work closely with insurance adjusters in this sort of case. The defendant is just as responsible as the lawyer for the slow pace of the defence.

[17] The motion is dismissed. The parties may make written submissions in writing not exceeding three pages in length, to which a bill of costs may be appended, the plaintiff by March 8 next, the defendant by March 18.

J.A. Ramsay J. Date: 2019-02-28