Court File and Parties

COURT FILE NO.: CV-19-000093-00 DATE: 20230914 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Patricia Tyner, Plaintiff AND: Matthew Thomas Phillips, Sprucewood Leasing Limited and Irish Pond Transit Inc. o/a Rent-a-Car Canada and/or Rent-a-Truck Canada, Defendants

BEFORE: Muszynski J.

COUNSEL: Warren WhiteKnight, for the Plaintiff Matthew G.T. Glass, for the Defendants

HEARD: September 7, 2023

Endorsement – motion to compel plaintiff attendance at defence medical

Overview

[1] It is no secret that Ontario’s civil justice system is experiencing systemic challenges in getting cases to trial in a timely manner. There are many factors that contribute to chronic delays in civil litigation. This case highlights the role litigants play in contributing to these delays due to non-compliance with the Rules of Civil Procedure and court ordered timetables.

[2] In this motor vehicle accident case, after years of litigation, and in the months leading up to a four-week jury trial, the defendants bring this motion to compel the plaintiff to attend three separate defence medical examinations. The motion is opposed by the plaintiff due to non-compliance by the defendants with the timelines set out in the Rules, and a consent order setting out the timing for delivery of expert reports.

Issues

I. Do the defendants require leave pursuant to rule 48.04(4) to bring the motion to compel the plaintiff to attend the defence medical examinations? If so, should leave be granted?

II. Should the court order the plaintiff to attend the three defence medical examinations pursuant to rule 33.01?

Background

[3] The plaintiff, Patricia Tyner, was involved in a motor vehicle collision on September 8, 2017. The litigation was initially uneventful. The action was defended, and the parties proceeded to examinations for discovery on July 29, 2020.

[4] The plaintiff served her trial record on December 7, 2021. As was the practice at the time in Kingston, the parties were assigned an arbitrary date for the pre-trial by the trial coordinator. By the time of the pre-trial, June 28, 2022, the plaintiff had five expert reports in hand. The defendant had none.

[5] To prevent an adjournment, there was an agreement between counsel that the plaintiff would not take issue with the lack of defence expert reports. This agreement was reached despite the requirement in the Rules to serve responding expert reports 60 days prior to the pre-trial.

[6] The pre-trial took place before Justice Hooper as scheduled. In the Rule 50.08 Pre-trial Conference Report, Justice Hooper wrote:

Defendant has indicated an intention to call experts but there are no reports available for the pre-trial. If Defendant delivers expert reports by no later than February 28, 2023, the Plaintiff will not object at trial on the basis of late service.

[7] In the same Report, the trial is confirmed for January 8, 2024, with a jury, for four weeks in duration. Both counsel signed the Report certifying their understanding of the contents and their obligation to be ready to proceed on the date fixed for trial.

[8] After the pre-trial, the following events unfolded:

a. Counsel for the plaintiff wrote to counsel for the defendants, not specifically about defence medicals, but regarding general file issues on the following dates: August 23, September 6, November 8, and November 28, 2022. There was no response to any of these e-mails.

b. On December 6, 2022, counsel for the plaintiff again wrote to counsel for the defendants about general file issues.

c. On the same day, counsel for the defendants replied and queried whether the plaintiff would be willing to travel to Toronto for a medical examination to have it completed sooner. In the same correspondence, there was an acknowledgment that there was a “pre-trial order in place”.

d. On December 23, 2022, counsel for the plaintiff replied: “My client remains able and willing, subject to the terms and to deadlines of the Court, to any defence medicals.”

e. On December 30, 2022, counsel for the defendants wrote to counsel for the plaintiff and again inquired whether the plaintiff would travel to Toronto for medical examinations.

f. The same day, counsel for the plaintiff responded to the email: “Yes to Toronto subject to terms and Court timelines.”

g. Justice Hooper’s court-ordered date – February 28, 2023 – by which the defence expert reports were to be delivered, came and went without the delivery of any reports.

h. On March 3, 2023, counsel for the defendants wrote to counsel for the plaintiff asking whether the plaintiff could attend an in-person psychology examination in Mississauga on March 21, 2023, and an in-person physiatry examination in Ottawa on March 30, 2023.

i. On March 6, 2023, counsel for the plaintiff wrote to counsel for the defendants advising that as the deadline recorded by Justice Hooper in her endorsement for delivery of reports had passed, the plaintiff would not attend any assessments or receive any reports.

j. The same day, counsel for the defendants responded stating “…you indicated that you would not object to admissibility of our expert reports if served by February 28, 2023 on the basis of late-service. There was no timetable precluding us from obtaining expert reports later than that date, nor was your right to object to admissibility of responding reports on other grounds precluded….we will proceed with scheduling a motion to obtain that relief immediately.”

k. On March 9, 2023, after a telephone conversation, counsel exchanged emails confirming that a motion would be necessary to compel the plaintiff’s attendance at a defence medical examination.

l. On June 19, 2023, counsel for the defendant wrote to counsel for the plaintiff advising that they had scheduled an in-person psychiatry examination for June 24, 2023, in Ottawa and an in-person physiatry examination in person in Ottawa for July 5, 2023. Counsel noted that if the plaintiff would not be produced, he would finalize motion materials.

m. On the same day, counsel for the plaintiff responded and indicated that his position was unchanged since March, his client would not agree to ignore the timelines of the Rules, or the consent timetable agreed to before Justice Hooper. Counsel for the plaintiff requested that he be consulted before the motion date was scheduled.

n. On August 14, 2023, defence counsel emailed counsel for the plaintiff enclosing motion materials returnable August 24, 2023. There is no evidence that there was consultation about the August 24, 2023 motion date.

o. The motion was adjourned at the request of the parties and was finally heard on September 7, 2023.

[9] There is no evidence as to when the proposed defence medical examinations will take place or when the reports will be served, although counsel suggested in submissions they could be scheduled within the next month and that there would be no need to adjourn the trial scheduled for January 2024.

Analysis

I. Do the defendants require leave pursuant to rule 48.04(4) to bring the motion to compel the plaintiff to attend at defence medical examinations? If so, should leave be granted?

[10] The defendants did not seek leave to bring this motion. The plaintiff takes the position that leave is required pursuant to rule 48.04(4) as the action has already been set down for trial.

[11] Rule 48.04(4) was recently amended. The prior version prevented the party who set the action down for trial and “any party who has consented to the action being placed on a trial list” from initiating any motion without leave of the court.

[12] Subject to a few enumerated exceptions, rule 48.04(4) currently provides that a party who has set an action down for trial shall not initiate any motion without leave of the court. The plaintiff set the action down for trial when the trial record was served on December 7, 2021.

[13] I share the view of my colleague, Justice K.E. Cullin, in the recent decision of Lafontaine v. McDaniel, 2022 ONSC 5153 at para 37 that because of the amendment to rule 48.04(4), the defendants in this case, having not set the action down, do not require leave to bring this motion.

II. Should the court order the plaintiff to attend at three defence medical examinations pursuant to rule 33.01?

Entitlement to defence medical examination

[14] There is no dispute that a court can order a plaintiff to attend a defence medical examination. Although it is a discretionary order, a defendant’s ability to have a plaintiff examined by a health care practitioner, when faced with allegations of impairment relevant to the action, should not be interference with lightly. It is a way to “put the parties on equal footing by allowing the defendant to meet the case advanced by the plaintiff and to respond to the allegations made by the plaintiff in the statement of claim.” Girao v. Cunningham, 2010 ONSC 4607 at para 18, citing Chapell v. Marshall Estate.

[15] The plaintiff was quite willing to submit to defence medical examinations prior to February 28, 2023. In fact, early in the litigation and unprompted, the plaintiff made the first of two unsolicited offers to attend at a defence medical examination. The more nuanced question for this motion is whether, given the delay and non-compliance by the defendants, the plaintiff should be compelled to attend the defence medical examinations at this stage of the litigation.

Delay in proposing dates for defence medical examinations

[16] The timelines for delivery of expert reports set out in the Rules are clear and unambiguous. At the time of the June 28, 2022 pre-trial, the defendants were already in breach of the requirement to serve responding expert reports 60 days prior to the pre-trial. There is no evidence as to what steps, if any, the defendants took to obtain responding expert reports before the pre-trial.

[17] At the pre-trial, the plaintiff consented to an extension of the time for the defendants to deliver their expert reports by eight months. The file was not dormant during those eight months. Counsel for the plaintiff was writing to counsel for the defendants regularly. Besides asking whether the plaintiff would travel to Toronto to be examined in December 2022, there is no evidence as to what steps the defendants took to try and arrange for a defence medical examination between June 28, 2022 and February 28, 2023. There was no follow-up when counsel for the plaintiff confirmed that his client would travel to Toronto for the defence medical examination.

[18] I find that there is no explanation for the delay in proposing dates for the plaintiff to attend the defence medical examination.

Timing of the defence motion

[19] As of March 6, 2023, the defendants were aware that the plaintiff was not willing to attend the proposed examinations. Counsel for the defendants advised that he was bringing a motion “immediately”.

[20] The next correspondence came on June 19, 2023, when defence counsel again proposed dates to have the plaintiff examined. The same day, counsel for the plaintiff confirmed that his client’s position was unchanged, and a motion would be required.

[21] On August 14, 2023, the defendants served their motion material returnable August 24, 2023, and, after an adjournment, the motion was finally heard on September 7, 2023.

[22] There is no evidence that explains the delay in bringing the motion between March 6, 2023, and August 14, 2023, when the motion material was finally served.

[23] During the motion, counsel for the defendants suggested that earlier motion dates were not available. I reject this suggestion. Firstly, there is no evidence that the defendants sought an earlier motion date from the court. Secondly, unlike other judicial centres, civil motion dates in Kingston are readily available on short notice.

[24] For a motion of this nature, timeliness is key. Matic v. Timpano, 2019 ONSC 1392 at paras 12-13. When the plaintiff made her position clear on March 6, 2023 that she would not attend a medical examination without a court order, it was incumbent on the defendants to bring a motion promptly. Kendall v. Sirard, 2007 ONCA 468 at para 41. The defendants could have, and should have, brought their motion immediately.

[25] I find that there is no explanation for the delay in bringing this motion to compel the plaintiff to attend a defence medical examination.

Scope of the defence motion

[26] The relief sought on the motion appears quite discrete. The defendants seek an order pursuant to rule 33.01 and s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 compelling the plaintiff to attend three defence medical examinations, including: an in-person physiatry assessment in Ottawa; an in-home occupational therapy assessment for the purpose of preparing a life care planning report; and a virtual psychiatry examination. All three proposed medical examinations will generate reports in response to plaintiff expert reports.

[27] The defendants submit that the Rules, and Justice Hooper’s timetable, only speak to the timing of delivery of expert reports. Since the relief sought in the motion is so narrow, the defendants submit there is nothing standing in the way of the court making an order to compel the plaintiff’s attendance at the medical examinations. I reject this submission.

[28] The entire purpose of compelling the plaintiff to attend a defence medical examination is to produce an expert report. Indeed, the Rules provide that the examining health practitioner must prepare a written report that shall forthwith be served on every other party.

[29] The Rules provide that original expert reports must be served 90 days before the pre-trial, and responding reports must be served no less than 60 days before the pre-trial. In this case, the parties went into the pre-trial knowing the defendants would not be in compliance with the timelines set out in the Rules, but did so on consent with a goal to establish a litigation timetable.

[30] At the pre-trial, there was an agreement that the plaintiff would not object at trial to the late service of the defendants’ expert reports provided they were served before February 28, 2023. I find this agreement had the effect of extending the timeline provided in the Rules for delivery of defence expert reports pursuant to rules 53.03(4)(a) and (c) to February 28, 2023. Beyond that date, the defendant would have required leave to serve any expert reports.

[31] Typically, a party bringing a motion to compel attendance at a medical examination at this stage of litigation will also seek an order to extend the time to serve the expert report pursuant to rule 53.03(4)(b). Here, the defendants have not done so despite acknowledging that they will require leave of the court to serve any expert reports.

[32] Limiting this motion to relief under rule 33.01 was, in my view, strategic on the part of the defendants to distinguish this motion from cases dealing with late service of expert reports which are, generally, unfavourable to the defence position.

[33] An order compelling the plaintiff to attend a medical examination cannot be divorced from the service of the expert report that the examination will generate and that the Rules dictate must be served forthwith. The defendants’ failure to advance a motion for the extension of time to serve the expert reports, in tandem with the motion to compel the plaintiff’s attendance at defence medical examinations, is contrary to the principles of expediency, efficiency and proportionality endorsed in the Rules.

Late expert reports are presumptively inadmissible

[34] In the absence of an agreement between counsel or leave of the court, late served expert reports are presumptively inadmissible at trial. Due to a change in the Rules that occurred on March 31, 2022, a party in breach of the timelines must satisfy the trial judge that there is both a reasonable explanation for the delay and that granting leave would not cause prejudice to the opposing party that cannot be compensated for by costs or an adjournment or cause undue delay before a late served expert report may be admitted at trial. Very recently, R.S.J. Edwards wrote: “The purpose of the new rule is, in my view, clear and obvious. The first purpose is to send a very loud and clear message to all sides of the Bar, that expert reports are to be served in a timely manner and in accordance with the provisions of rules 53.03(1) and (2).” Agha v. Munroe, 2022 ONSC 2508 at para 30.

[35] I am not inclined to compel the plaintiff to undergo three separate defence medical examinations when the reports that will arise from those examinations are presumptively inadmissible at trial. This is particularly so due to the absence of evidence of a reasonable explanation for the delay, which is similar to the situation in Mohamud v. Juskey, 2023 ONSC 4414 at para 61 where Boswell J. denied the defence motion to compel the plaintiff to attend a defence medical examination.

Conclusion

[36] The defendants’ motion to compel the plaintiff to attend defence medical examinations is dismissed.

[37] The plaintiff urges the court to make an order preventing the defendants from serving any expert reports given their non-compliance with the Rules and Justice Hooper’s endorsement. I decline to do so. There is no motion before me requesting this relief. Due to their non-compliance with the Rules and Justice Hooper’s endorsement, if the defendants do wish to rely on expert evidence at trial, they will require the consent of the plaintiff or an order from the court extending the time for service of those reports.

Costs

[38] If the parties are unable to agree on the issue of costs, they may make submissions in writing, no longer than 3 pages, in accordance with the following schedule: the plaintiff shall serve and file costs submissions on or before September 22, 2023; the defendants shall serve and file costs submissions on or before October 6, 2023, thereafter, costs shall be decided based on the material filed.

Muszynski J. Date: September 14, 2023