Court File and Parties

Court File No.: CV-11-16636 Date: 2019-04-02 Superior Court of Justice – Ontario

Re: Ryan Nelson, Plaintiff And: Leigh Charles Chadwick, Diane Marie Daniher, Fleming House Limited carrying on business as Charly’s Brew Pub and Grill, RBC General Insurance Company and Jevco Insurance Company, Defendants

Before: Verbeem J.

Counsel: Alan L. Rachlin, Counsel, for the Plaintiff Brian Smith, Counsel, for the Moving Party, Diane Marie Daniher Michael B. Stocks, Counsel for Defendant, Leigh Charles Chadwick Bruce R. Mitchell, Counsel for Defendant, RBC General Insurance Company Alexander Curry, Counsel for Defendant, Fleming House Limited, c.o.b. as Charly’s Brew Pub and Grill

Heard: March 25, 2019

Endorsement on Motion

Preface

[1] I heard this motion on March 25, 2019 and reserved my decision for written reasons to follow. I released an endorsement on March 26, 2019 setting out the terms of my dispository order and confirming my intent to provide written reasons for same. These are those reasons.

Nature of the Motion

[2] The defendant, Diane Marie Daniher (Ms. Daniher), seeks an order compelling the plaintiff, Ryan Nelson (Mr. Nelson), to attend an independent neuropsychological examination to be conducted by Dr. C. West on April 24, 2019 at a specified location in the City of London. The balance of the remaining defendants support that relief.

[3] The timing of the assessment, if granted, will necessarily result in the adjournment of the trial of this action, which is currently scheduled to commence May 27, 2019 before a jury (and is expected to last several weeks in duration). The trial date was set at a judicial pre-trial conference in June, 2017.

[4] The plaintiff resists the motion. He wants to proceed to trial on the currently scheduled trial date. He refuses to attend the appointment as scheduled, or at all.

[5] This proceeding was originally scheduled before me on March 25, 2019, for the purpose of continuing a judicial pre-trial conference that started by way of a teleconference in December, 2018. Shortly before the scheduled pre-trial conference date, I was advised of a request by Ms. Daniher to have this motion determined in conjunction with the judicial pre-trial. With the consent of the plaintiff, I endorsed that Ms. Daniher’s motion could be returned at the pre-trial conference.

[6] In so doing, I did not expressly determine any leave issues that arise from r. 48.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as a consequence of this proceeding having been previously added to a trial list. Although Ms. Daniher’s notice of motion does not request leave to bring this motion, such a request is patently implied and is the subject of comment in her factum.

[7] The plaintiff suggests that leave to bring this motion ought not to be granted because there has not been an unexpected change or development in the circumstances of the action or the available evidence that would otherwise justify such relief. Ms. Daniher disagrees. She observes that in December 2018, the plaintiff served a report prepared by Dr. Cancelliere, a neuropsychologist, in which he expresses opinions that in the submission of Ms. Daniher, fundamentally change the nature of the case she must meet at trial. As a result, Ms. Daniher says it would be unfair to require her to proceed to trial without the opportunity to respond to Dr. Cancelliere’s report through her own neuropsychological expert assessment and report.

[8] In order to appreciate the parties’ positions, some context is warranted, which I will provide below.

Nature of the Action

[9] In his action, the plaintiff claims damages in excess of 2.3 million dollars as a result of injuries, impairments and consequential losses that he asserts that he sustained as a result of a motor vehicle accident that occurred on November 27, 2009. Ms. Daniher owned the vehicle in which the plaintiff was a passenger at the time of the accident. The vehicle was operated by the defendant, Leigh Charles Chadwick. Ms. Daniher asserts that the vehicle was operated without her consent and, as a result, she is not vicariously liable for any negligence on the part of Mr. Chadwick in its operation. Consent will be a live issue at trial.

The Evidence on the Motion

[10] The evidence before me comes in the form of affidavits sworn by a member of the firm representing Ms. Daniher (Mr. Wallace), and a member of the firm representing the plaintiff (Mr. Mutter). Each has appended, as exhibits to their affidavits, various medical records and reports and other documents, which are briefly summarized below.

[11] Of primary relevance and materiality to the issues on this motion, Mr. Nelson alleges that he sustained a traumatic brain injury (“TBI”) as a result of the subject accident. That proposition finds support in certain aspects of the medical documentation that he has produced during the course of this proceeding, which began in 2011. The available evidence also establishes that the plaintiff sustained cervical fractures as a result of the accident that necessitated surgical repair. He has continued to report physical symptoms and impairments since the accident.

[12] At the request of the plaintiff’s then counsel, neurosurgeon Dr. Wai Ng performed an independent assessment of the plaintiff on February 1, 2012. Dr. Ng delivered a report dated February 28, 2012 in which he opined that the plaintiff suffered a “mild to moderate traumatic brain injury” as a result of the accident, and that he “has now demonstrated moderate cognitive dysfunctions mostly associated with memory and organizational tasks”. Dr. Ng opined that those dysfunctions may persist for months or years and that it was highly unlikely that the plaintiff would improve from his cognitive dysfunction.

[13] In his report, Dr. Ng discloses that his expertise lies in the management of neurosurgical lesions affecting the brain, spine, spinal cord, and peripheral nerves. He has sub-specialty training in the management of complex spine diseases. Surgical management of spinal conditions makes up over 80 percent of his practice. Indeed, the majority of his report deals extensively with the plaintiff’s physical complaints including: chronic headaches; chronic neck pain; chronic bilateral shoulder pain; and chronic back pain.

[14] At the request of his then counsel, the plaintiff underwent a neuropsychological assessment by Dr. Gloria Grace on March 17, 2012. Dr. Grace authored a report dated August 16, 2012 in which she concluded, among other things, that the plaintiff suffered a mild traumatic brain injury as a result of the accident. Dr. Grace also opined that the plaintiff’s ongoing reports of cognitive dysfunction (at the time of her assessment) were likely the result of etiological factors other than a brain injury. Ms. Daniher places emphasis on the following aspect of Dr. Grace’s report (at page 21), in part, to anchor her remedial request on the motion:

...given the time interval between the MVA and the current assessment, cognitive dysfunction associated with the direct effects of a MTBI would have likely resolved. In my opinion, it would be more likely that other etiological factors are responsible for his current neuropsychological profile and self-reported cognitive symptoms. Such factors would include the adverse cognitive effects associated with chronic pain and headaches; fatigue; psychological factors; and possible medication effects.

[15] Correspondingly, at page 22 of her report, Dr. Grace further opines that any improvement in the plaintiff’s cognitive functioning would be dependent on improvement related to his pain, fatigue, psychological issues and ongoing need for medications.

[16] In support of Ms. Daniher’s motion, Mr. Wallace deposes that as a result of Dr. Grace’s opinion, Ms. Daniher’s counsel decided not to arrange an independent neuropsychological assessment of Mr. Nelson. Ms. Daniher’s counsel did have Mr. Nelson assessed by an orthopaedic surgeon in respect of the physical injuries and impairments he alleges he sustained as a result of the accident.

[17] Mr. Mutter’s affidavit evidence discloses that after Dr. Grace’s assessment, the plaintiff continued to periodically report cognitive symptoms and impairments including “severe memory issues” to health care practitioners. For example, in February 2015, the plaintiff reported such symptoms to his family doctor, Dr. Campagna. In turn, Dr. Campagna completed a disability tax credit form on behalf of the plaintiff in which he states that the plaintiff was unable to “hold any employment” due to forgetfulness, concentration and memory issues.

[18] Physiatrist, Dr. Keith Sequeira, who has twice assessed the plaintiff at the request of his own counsel, has authored two reports (in November 2012 and September 2014) in which he diagnoses the plaintiff with a traumatic brain injury (among other things) and identifies “impairments of memory and overall cognitive skills”.

[19] Mr. Mutter also correctly deposes that a future care report authored by Nurse Clara Um, dated February 19, 2016, records, among other things, that the plaintiff complained of headaches, sensitivity to light and problems with memory concentration and attention.

[20] The plaintiff served a trial record in this matter on March 17, 2015. A pre-trial conference was held on June 19, 2017, during the course of which all parties consented to the action being scheduled for the current trial date. A second judicial pre-trial conference was conducted in April, 2018.

[21] In October, 2018, the plaintiff underwent a neuropsychological assessment conducted by Dr. Cancelliere at the request of his own counsel. Dr. Cancelliere authored a report dated November 29, 2018 that was subsequently served on the defendants in December, 2018.

[22] Ms. Daniher contends that the Cancelliere report contains “striking new evidence” on the TBI issue that now necessitates her own neuropsychological assessment of the plaintiff. Ms. Daniher’s concerns appear to relate to opinions expressed by Dr. Cancelliere concerning the severity of the head injury sustained by the plaintiff as a result of the accident and the etiology of the plaintiff’s ongoing cognitive complaints, as they are reported. His opinions on that subject matter appear to differ from those expressed by Dr. Grace.

[23] In that regard, Dr. Cancelliere states, at page 24 of his report:

Thus, medical records indicated Mr. Nelson sustained at least a moderate head injury. However, there was substantial evidence, given his consistent report, to support a severe head injury.

[24] At page 27 of his report, Dr. Cancelliere states:

Mr. Nelson has a severe disability as a direct result of the subject MVA. His level of disability is generated by the synergistic impact of his acquired intellectual and cognitive impairments and weaknesses in combination with his MVA-related/reactive socioemotional (his social life/participation has been dramatically altered) and personality/behavioural difficulties. His physical injuries, although this goes beyond the scope of the current report, were clearly very significant and contribute significantly to the level of disability.

[25] In consequence of the opinions expressed by Dr. Cancelliere, Ms. Daniher asserts that it would be unfair to compel her to proceed to trial without allowing her the opportunity to respond through her own assessment. Therefore, she made arrangements to have the plaintiff assessed by Dr. West on April 24, 2019. It is expected that Dr. West will require four to five weeks to prepare a report once the assessment is completed.

[26] On February 28, 2019, Ms. Daniher’s counsel advised plaintiff’s counsel of his intention to have Mr. Nelson assessed by Dr. West and the date of the proposed assessment. By correspondence dated March 1, 2019, plaintiff’s counsel refused the request. The plaintiff is not prepared to consent to an adjournment of the May, 2019 trial date in order to accommodate a defence neuropsychological examination.

The Parties’ Positions

[27] Ms. Daniher acknowledges that in accordance with r. 48.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, leave is required to bring this motion because the action was placed on a trial list with her consent. She submits that in the circumstances of the timing of the Cancelliere report and the “new” opinions expressed therein, leave should be granted and the court should exercise its discretion pursuant to s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “Act”) and Rule 33 of the Rules, to order a further medical examination at her behest. She contends that such an order would put the parties on an equal footing by allowing the defendant to meet the case to be advanced by the plaintiff at trial.

[28] Ms. Daniher asserts that the service of Dr. Cancelliere’s report changed the “litigation landscape” that existed prior to its delivery, including at the time this action was placed on the trial list. The defendants must now defend a claim where there is evidence of a moderate to severe brain injury that has resulted in lasting cognitive dysfunction. Ms. Daniher asserts that she would be seriously prejudiced if she was not afforded an opportunity to obtain a responding opinion. She posits that such prejudice outweighs any prejudice to the plaintiff that would accrue as a result of an adjournment of the trial.

[29] The plaintiff submits that leave should not be granted to hear this motion in accordance with r. 48.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. There are no extraordinary circumstances justifying granting Ms. Daniher leave to bring this motion or to conduct the proposed neuropsychological assessment, particularly when she chose not to engage a neuropsychological expert during the nearly eight years that the action has been outstanding.

[30] The plaintiff asserts that Dr. Cancelliere’s opinion does not represent a substantial or unexpected change in the circumstances of the case as compared to the circumstances that prevailed when the parties agreed to add the matter to the trial list in 2017. In his statement of claim, the plaintiff expressly pleaded that he sustained a traumatic brain injury as a result of the accident that resulted in serious cognitive impairment. Years ago, the presence of a post-MVA TBI was diagnosed by Doctors Ing, Grace and Sequeira. The plaintiff provided the defendants with medical documentation (before the trial date was set) evidencing his ongoing cognitive complaints. The defendants were well positioned to know (or they ought to have known) the nature and extent of the damages issues that flowed from the foregoing evidence, before the action was set down and placed on a trial list. Dr. Cancelliere’s diagnosis of a moderate traumatic brain injury causing cognitive dysfunction is not new evidence. Rather, it is consistent with prior evidence served by the plaintiff. The trial is two months away. The action is eight years old. At this late stage, there may be other tactical reasons for the defendant’s assessment request.

[31] The plaintiff further asserts that if leave to bring this motion is granted, the relief requested should be refused. In the plaintiff’s submission, the moving party has failed to meet her onus to present sufficient evidence to establish the necessity of a further medical examination, as proposed. A litigant does not enjoy a prima facie entitlement to have an equal “matching” of expert medical witnesses. Instead, cogent evidence must be adduced to establish that a second or subsequent examination is necessary. Ms. Daniher has not adduced that evidence.

[32] Further, this is not a situation where there has been a change in the plaintiff’s symptoms or complaints, or an unexpected development or change in circumstances. The plaintiff’s assertions that he sustained a traumatic brain injury and ongoing cognitive dysfunction as a result of the motor vehicle accident have been live issues since the inception of the action and continuously thereafter. The plaintiff asserts that Ms. Daniher ought to have turned her mind to obtaining the requested neuropsychological assessment years ago and not at a time when it would compel the adjournment of a trial that has been scheduled for over a year and a half.

Disposition

[33] As the plaintiff correctly submits, the first issue that must be determined is whether Ms. Daniher has met her onus to demonstrate that leave to bring this motion in accordance with r. 48.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 ought to be granted.

[34] Setting an action down for trial and consenting to its placement on a trial list are serious matters. Generally, there must be evidence of a substantial and unexpected change in circumstances as a pre-requisite to leave being granted to bring a motion or conduct further discovery after a matter has been placed on a trial list, in accordance with r. 48.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194: see Goodridge v. Corken, at para. 11; Theodore Holdings Ltd. v. Anjay Ltd., 1993 CarswellOnt 429 (Gen. Div.), at paras. 11-15; and Grainger v. Grainger, 2009 ONSC 16576 (Ont. S.C.), at paras. 28-29.

[35] The determination of whether to grant leave pursuant to r. 48.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 is an exercise of the court’s discretion. In Theodore Holdings Ltd. v. Anjay Ltd., at para. 15, Then J. had regard to the following considerations when determining whether to permit leave under r. 48.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (which were previously identified by Master Donkin in Financial Trustco v. Royal Trustco of Canada (1985), 5 C.P.C. (2d) 114 (Ont. Master)), as follows (with modifications to the circumstances of this case as warranted):

1. The court should consider the facts known to the party seeking leave as of the date that the party consented to the action being placed on the trial list;
2. Whether there has been an important change in the facts since the party consented to the action being placed on the trial list;
3. The object of the request for leave; and
4. Whether the relief sought would likely be granted if leave were given to bring the motion, notwithstanding the party’s consent that the matter be placed on the trial list.

[36] In my view, those considerations provide a useful analytical framework to the issue of whether leave should be granted in this instance and in that regard I observe and find as follows.

[37] The available evidence reveals that as of June 2017, when the action was added to a trial list with Ms. Daniher’s consent, she was aware, or ought to have been aware, that the plaintiff alleged that he sustained a traumatic brain injury as a result of the accident. She was also aware, or ought to have been aware, that medical evidence produced to her by the plaintiff’s counsel in the course of the proceeding evidenced that the plaintiff periodically complained of cognitive symptoms (most predominantly memory loss) both to his treating family physician and to various other medical assessors who examined him in the context of this action (at the request of his own counsel). I have referenced the nature of that evidence in a broad manner earlier in these reasons. At this point in the determination of whether leave should be granted under r. 48.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, a slightly deeper dive into that evidence is warranted.

[38] There is no dispute that the plaintiff has consistently asserted that he sustained a traumatic brain injury in the subject accident. During the course of this proceeding, he offered medical evidence from experts retained by his solicitor in 2012 that confirmed such a diagnosis.

[39] First, neurosurgeon, Dr. Ng, opined that the plaintiff suffered from a mild to moderate brain injury resulting in neurocognitive dysfunctions. In reading Dr. Ng’s report, it does not appear that his diagnosis in that regard was informed by the results of psychometric/neuropsychological testing. Instead, it appears to have been the product of: the plaintiff’s subjectively reported symptoms; Dr. Ng’s review of historical medical documentation; and (what Dr. Ng describes as) an abbreviated mental examination, which apparently consisted of a few questions (see Dr. Ng’s report at page 4).

[40] Subsequent to Dr. Ng’s examination, the plaintiff was assessed by neuropsychologist, Dr. Grace, again at the request of his own counsel. As part of her assessment, Dr. Grace conducted a detailed interview of the plaintiff and the plaintiff completed a battery of neuropsychological testing (consisting of approximately 20 components and administered by a qualified psychometrist) over the course of an entire afternoon.

[41] Ultimately, Dr. Grace concluded that the plaintiff sustained a mild traumatic brain injury (not moderate) and that it was likely that any cognitive dysfunction associated with the direct effects of that TBI had resolved by the time of her assessment. She further opined that other etiological factors (which were specifically identified earlier in these reasons) were responsible for the plaintiff’s reports of cognitive impairment.

[42] The record before me does not disclose that Dr. Grace’s detailed report was provided to Dr. Ng. The record does not include any further reports (or evidence) from Dr. Ng addressing Dr. Grace’s opinions regarding the severity of the plaintiff’s traumatic brain injury or the etiology of the plaintiff’s ongoing reports of cognitive symptoms.

[43] A portion of the plaintiff’s family physician’s clinical notes from February 2015, detail the plaintiff’s complaints of memory issues and other cognitive symptoms, as of that time. However, the family physician’s notes that were adduced in evidence on this motion do not purport to address the etiology of those symptoms and specifically whether they were primarily attributable to an ongoing organic brain injury or, as Dr. Grace opined, that other factors including adverse cognitive effects associated with chronic pain and headaches; fatigue; psychological factors; and possible medication effects – were responsible for those symptoms.

[44] In his initial report authored in November 2012, physiatrist Dr. Sequeira diagnosed the plaintiff with a number of injuries and impairments as a result of the accident, including: a traumatic brain injury; neck pain of a musculoligamentous etiology; cervical disc herniation/instability requiring surgical intervention and causing left arm radiculopathy; chronic pain syndrome; chronic tension-type headaches; and periscapular pain of a musculoligamentous etiology. It does not appear that Dr. Sequeira employed or expressly relied upon a battery of neuropsychological testing as part of his examination and assessment of the plaintiff. Rather, his report indicates that he administered a “mental status examination”, the results of which are summarized in two sentences at page 9 of his report.

[45] In his report, Dr. Sequeira also reproduced, among other things, the portions of Dr. Grace’s report attributing the plaintiff’s cognitive symptoms to the specific etiological factors that she identified, as set out above, without expressly concurring or disagreeing with her opinion in that regard. He also reproduced portions of Dr. Ng’s report, again without expressly concurring or disagreeing with his opinions. Dr. Sequeira does not offer an opinion on the severity of the traumatic brain injury with which he diagnosed Mr. Nelson nor an opinion concerning the etiology of Mr. Nelson’s reported cognitive symptoms.

[46] Further, Dr. Sequeira’s report primarily addresses the physical injuries and impairments said to have been sustained by Mr. Nelson as a result of the motor vehicle accident and the corresponding impact on his vocational and avocational activities, together with certain treatment recommendations (for physical symptoms) and a prognosis concerning Mr. Nelson’s physical injuries, impairments and vocational prospects.

[47] Dr. Sequeira’s updated report, dated September 8, 2014, includes a section entitled “Current Complaints”. That section records that Mr. Nelson presented with complaints of: right-sided neck, shoulder, arm and hand pain; headaches; and low back pain. No cognitive symptoms are expressly recorded in that section.

[48] During the assessment leading to that report, Dr. Sequeira’s testing, while primarily physical in nature, also included a mental status examination said to have shown similar deficits to his previous assessment. Dr. Sequeira’s diagnoses remained the same as those expressed in his November 2012 report. Similarly, his September 2014 report was primarily directed at: the nature and extent of the plaintiff’s physical injuries and impairments; the vocational and avocational impact of same; and recommended treatment modalities.

[49] Finally, the nurse retained by the plaintiff to prepare the future care report, documented the plaintiff’s complaints of cognitive symptoms but she did not opine on the etiology of same, nor the severity of the plaintiff’s accident related TBI.

[50] In considering the issue of what Ms. Daniher knew when she agreed to place the action on the trial list, I am also mindful that the information concerning the nature and effect of the traumatic brain injury sustained by the plaintiff in the accident (as disclosed by the medical reports adduced as evidence on this motion) is only one component of what Dr. Ng identified as a “complex case”. The available record indicates that the plaintiff suffered severe physical injuries in the subject accident including fractures at C-3 and C-4 and a facet disruption resulting in a surgical fusion of the plaintiff’s cervical spine from C-2 to C-5. In 2012, Dr. Ng described the plaintiff as presenting with a “failed neck syndrome”. Dr. Sequeira also diagnosed several physical etiologies accounting for the plaintiff’s pain complaints, which are set out previously above.

[51] Similarly, the medical documentation produced in the action is not limited to the reports and “clinical note extracts” adduced as evidence on this motion. In the latter, most of the assessors summarize their review of the relevant medical documentation that was provided to them. Those summaries reveal that the medical productions made with respect to the plaintiff’s accident related injuries, treatment and impairment are quite voluminous.

[52] In the context of the foregoing, I conclude that when Ms. Daniher consented to the action being placed on a trial list she was aware that:

1. In the context of the plaintiff’s claim of significant physical injuries and impairments related to the accident, he also presented with cognitive symptoms/complaints;
2. The plaintiff was the subject of extensive neuropsychological testing conducted under the supervision of Dr. Grace, who also engaged in a detailed clinical interview of the plaintiff and concluded that his neuropsychological profile and reported cognitive symptoms were likely the result of factors other than the ongoing indicia of a traumatic brain injury;
3. Dr. Grace’s testing was, by far, the most extensive testing that the plaintiff had undergone with respect to issues concerning traumatic brain injury and cognitive dysfunction (based on the reports produced by the plaintiff);
4. Dr. Grace had the benefit of reviewing Dr. Ng’s report in arriving at her findings, opinions and conclusions;
5. There was no indication that Dr. Ng (who does not appear on the plaintiff’s witness list for trial) received a copy of Dr. Grace’s report for comment or otherwise; and
6. Neither Dr. Sequeira nor the plaintiff’s family physician opined on the specific etiology of the plaintiff’s reported cognitive symptoms and in the case of the former, the severity of the TBI (the latter did not expressly identify a TBI in the portion of his clinical notes that were adduced on this motion).

[53] In that context, I am satisfied that when it was served in December of 2018, Dr. Cancelliere’s report represented an unexpected and important change in the facts and circumstances that prevailed at the time the parties consented to adding the action to the trial list in June 2017. I will explain.

[54] Although not in evidence, I accept plaintiff counsel’s submission that he attempted to arrange a follow-up assessment with Dr. Grace after the second pre-trial conference was conducted in April 2018, but was unable to secure a timely assessment date. Hence, the decision to arrange a fresh assessment with a different neuropsychologist. However, it does not appear that the plaintiff’s plans in that regard were shared with counsel for Ms. Daniher or any of the other defendants prior to service of Dr. Cancelliere’s report. Indeed, there is no evidence that the plaintiff disclosed his intent to seek a further or fresh neuropsychological report or to participate in a further or fresh neuropsychological assessment either after the initial judicial pre-trial conference in June 2017 or the second judicial pre-trial conference in April 2018.

[55] I accept Ms. Daniher’s counsel’s submissions that he was taken by surprise when he was served with Dr. Cancelliere’s report in December 2018 (five months before trial). I further accept his submission that based on Dr. Grace’s report he was not aware that his client would be required to defend a case in which the plaintiff’s current reports of cognitive symptoms were said to be the result of an ongoing brain injury.

[56] Although I appreciate the circumstances that led plaintiff’s counsel to retain Dr. Cancelliere, in my view, the opinions expressed in his report fundamentally change the available evidence on the issues of the severity of the TBI sustained by the plaintiff in the accident and the etiology of the plaintiff’s presently reported cognitive symptoms.

[57] Notably, on the issue of etiology, Dr. Cancelliere, unlike Dr. Grace, identifies an ongoing organic brain injury as the cause of the plaintiff’s current cognitive complaints. At page 25 of his report, he identifies evidence of left temporal lobe dysfunction and corresponding impairments. In addition, Dr. Cancelliere opines at page 25 of his report, in seeming contradiction to the etiological opinion offered by Dr. Grace, as follows:

Nonetheless, the stability of the cognitive profile over time favours a neurogenic etiology versus factors such as pain, headaches, fatigue, psychological issues and medication effects. Had the latter factors substantially influenced test performances one would have expected greater fluctuation/instability on repeat assessment.

[58] On the evidence before me, the determination at trial of the issue of the etiology of the plaintiff’s current reported cognitive symptoms is not without consequence. Dr. Grace’s report illustrates that the etiology of the plaintiff’s cognitive complaints potentially influences his prognosis in that regard. In accordance with Dr. Grace’s stated opinion, if the etiology of the plaintiff’s reported cognitive symptoms involves factors other than an ongoing brain injury, any improvement in those cognitive symptoms would be dependent on an improvement in the underlying etiological factors (pain, fatigue, etc.). It stands to reason that such a proposition would not be operative if Dr. Cancelliere’s identified etiology of the plaintiff’s cognitive complaints is accepted.

[59] I accept that the issues of the severity of the traumatic brain injury sustained by the plaintiff as a result of the accident and the etiology of his reported cognitive symptoms are issues that could inform and influence the jury’s assessment of damages in this instance. As a result, I find that the opinions expressed in Dr. Cancelliere’s report on those issues represent important changes to the circumstances that prevailed at the time the parties consented to add the action to the trial list. I also accept that, from the perspective of the defendants, including Ms. Daniher, that change in circumstances was unexpected.

[60] On the issue of the object of Ms. Daniher’s request, plaintiff’s counsel concedes that in the abstract, a defendant’s request for a neuropsychological assessment in a case such as this, is not an unreasonable one.

[61] Finally, on the issue of whether the relief sought would likely be granted if leave were given to bring the motion to compel the plaintiff’s attendance at the proposed assessment by Dr. West, I observe and find as follows.

[62] Pursuant to s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and Rule 33 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, where the physical or mental condition of a party to litigation is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health care practitioners. Generally, a litigant has a prima facie right to compel an adverse party, who has put his or her physical or mental condition at issue in the proceeding, to attend a first medical examination under s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and Rule 33 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 without the need for further evidence or justification. Ms. Daniher has already done so by compelling the plaintiff to attend on Dr. Jasey, an orthopaedic surgeon.

[63] The Act and Rules contemplate that a litigant may be entitled to more than one assessment in a proceeding. Section 105(4) of the Act provides that “the court may, on motion, order further physical or mental examinations”. Further, in accordance with r. 33.02(2) of the Rules, the court may order a second examination or further examination on such terms respecting costs and other matters as are just. The need for an additional medical examination must be justified through evidence. A litigant is not entitled to an additional examination for the sole purpose of having a “match” for the health care practitioners retained by the adverse party: see MacDonald v. Rai, 2005 ONSC 21870 (Ont. S.C.). The onus remains on the moving party, in this case Ms. Daniher, to adduce evidence to establish the necessity for a further examination: see Moore v. Bertuzzi, 2012 ONSC 5399. I am satisfied that the moving party has done so in this instance. I will explain.

[64] In my view, it is clear that a neuropsychological examination of the plaintiff by Dr. West will yield information relevant to the issues of the nature and extent of the traumatic brain injury sustained by the plaintiff as a result of the motor vehicle accident and the nature and extent of the plaintiff’s current cognitive dysfunction and the etiology of same.

[65] Further, in my view, Dr. Cancelliere’s opinion represents an unexpected change in circumstances with respect to the issues identified above. It was not until the unexpected delivery of Dr. Cancelliere’s report in December 2018 that Ms. Daniher could have gained a full appreciation of: the severity of the TBI that the plaintiff asserts he sustained as a result of the motor vehicle accident; and the plaintiff’s intent to establish that the etiology of his ongoing cognitive symptoms has consistently remained a brain injury as opposed to the etiological factors identified by the plaintiff’s original neuropsychological assessor, Dr. Grace. Before the delivery of the Cancelliere report and in the context of Dr. Grace’s opinions, Ms. Daniher was reasonably and appropriately focused on defending the damages issues in the action on the basis of the plaintiff’s orthopaedic injuries, asserted chronic pain condition and the resulting psychological symptoms that followed, together with cognitive symptoms said by Dr. Grace to likely have arisen as a result of those factors. As a result of the foregoing, and for reasons I have previously stated, I conclude that the opinions expressed in Dr. Cancelliere’s report constitute an important, substantial and unexpected change in the circumstances of the case to which Ms. Daniher must now respond at trial.

[66] Finally, in my view, the severity of the plaintiff’s traumatic brain injury and its etiological connection to his reported cognitive symptoms are relevant issues in the assessment of the plaintiff’s damages. Given the change in the available evidence on those issues occasioned by Dr. Cancelliere’s report, I am of the view that as a matter of fairness, the defendant is entitled to be placed on an equal footing with respect to those issues, through her own independent neuropsychological assessment of the plaintiff.

[67] I remain mindful that fairness must be considered from the perspective of all parties, including Mr. Nelson. Unfortunately, the timing of the proposed assessment will necessitate an adjournment of the trial, which works an unfairness to Mr. Nelson, particularly given the amount of time the litigation has been outstanding and the length of time for which the trial has been set. However, it remains that the operable change in circumstances that I have found results from the unexpected delivery of Dr. Cancelliere’s report on Mr. Nelson’s behalf, in December 2018.

[68] In my view, the unfairness that results to Mr. Nelson from an adjournment of the trial is eclipsed by the degree of unfairness that would be visited on Ms. Daniher if she were forced to proceed to trial without the opportunity to address Dr. Cancelliere’s evidence through the engagement of her own expert.

[69] For the foregoing reasons, I am satisfied that leave should be granted to Ms. Daniher to bring this motion, pursuant to r. 48.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. I am also satisfied that an order compelling the plaintiff to attend the proposed neuropsychological assessment with Dr. West should be granted. Finally, an order will go removing the action from the trial list commencing May 27, 2019 and adjourning the trial to a date to be fixed by the trial co-ordinator in consultation with the parties.

[70] I would add that in an effort to minimize the prejudice to Mr. Nelson, the court identified several trial dates in the fall of 2019 and early 2020 (including three different trial lists in which this action could have been listed as the first case to be tried), none of which were available for plaintiff’s counsel.

[71] In accordance with the foregoing, I released a depository endorsement dated March 26, 2019, setting out an order with the following terms:

(1) The defendant Ms. Daniher is granted leave to bring this motion. (2) The plaintiff shall attend a neuropsychological assessment with Dr. W. West, Neuropsychologist, on April 24, 2019, at 620 Colborne Street, Suite 30, London, Ontario [time to be provided to plaintiff’s counsel forthwith] or at such other date and location as the plaintiff and the defendant Ms. Daniher may agree, provided such agreement is expressed in writing. The defendant Ms. Daniher shall be responsible for the payment of reasonable travel and incidental expenses incurred by the plaintiff as a result of his attendance. If there is a dispute concerning any aspect of such expenses (including but not limited to quantum), the parties may return it before me at a telephone case conference to be arranged through the trial co-ordinator in Windsor for summary disposition. (3) This action shall be removed from the trial list commencing May 27, 2019. The trial of this action shall be rescheduled to a date to be set by the trial co-ordinator in Windsor after consultation with the parties. It is the responsibility of the parties to contact trial co-ordination to identify available dates (beyond those identified during the course of the motion, which were not available for plaintiff’s counsel). If the parties cannot agree on a new trial date, the issue may be returned to me via telephone case conference for summary disposition.

[72] On the issue of costs, I have received costs outlines from both the plaintiff and Ms. Daniher. Ms. Daniher is at leave to deliver written submissions with respect to costs of no more than three pages in length, double spaced 12 point font, within the next 20 calendar days. The plaintiff may deliver responding submissions on costs of no more than three pages in length, double spaced 12 point font, within 20 calendar days of the date of service of Ms. Daniher’s submissions. Ms. Daniher may file a reply of no more than one page in length, double spaced 12 point font, within 20 calendar days of the date of service of the plaintiff’s responding submissions, if any. The parties’ costs submissions ought to address entitlement, scale and quantum of costs, timing of payment of costs if ordered (i.e. forthwith; in the cause; or in any event of the cause), and any issues with respect to costs thrown away as a result of the timing of the motion. Together with their submissions, the parties should also provide copies of any relevant offers to settle the motion.

“original signed and released by Verbeem J.” Gregory J. Verbeem Date: April 2, 2019 Justice