Lodge v. Regier

[Indexed as: Lodge v. Regier]

53 O.R. (3d) 352

[2001] O.J. No. 734

Docket No. 1153

Ontario Superior Court of Justice

Divisional Court

Carnwath, Valin and Epstein JJ.

March 5, 2001

Insurance--Automobile insurance--Medical examination at insurer's request--Court having discretion to order plaintiff to comply with requirement in s. 258.3 of Insurance Act to undergo defence medical--Insurance Act, R.S.O. 1990, c. I.8, s. 258.3.

The plaintiff was involved in a car accident in December, 1998. Her counsel notified the defendant and the defendant's insurer of the plaintiff's intention to commence an action. The insurer requested that the plaintiff undergo examinations under s. 258.3(1)(d) of the Insurance Act. The plaintiff agreed to undergo the examinations of two doctors but objected to the Functional Capacities Assessment requested by the insurer due to concerns about her health. The plaintiff commenced the action without complying with that request. The defendant brought a motion for an order compelling the plaintiff to submit to that examination. The motions judge ordered the plaintiff to comply with the request for the Functional Capacities Assessment on the basis of a "suitably extended testing schedule". The plaintiff appealed, submitting that the court does not have jurisdiction to order an examination under s. 258.3 of the Act and is restricted to taking non-compliance into consideration in awarding costs .

Held, the appeal should be dismissed.

The insurer is obligated under the Act to attempt to settle the claim as expeditiously as possible. To facilitate early settlement, the legislature has given the insurer enhanced discovery rights before an action is started. While s. 258.3(9) of the Act suggests costs as a sanction against non-compliance with the requirements designed to further the objective of early settlement, the section should not be construed as prohibiting the court from granting another remedy consistent with that objective. The court has a discretion to order compliance. There was no reason to interfere with the motions judge's exercise of that discretion.

APPEAL from a decision dismissing a motion for an order compelling the plaintiff to submit to an examination under s. 258.3(1)(d) of the Insurance Act, R.S.O. 1990, c. I.8.

Boulianne v. Donovan (1999), Kennedy J., September 3, 1999, Court File No. 31287/99, apld Fasken (Litigation Guardian of) v. Iola (1999), 1999 15115 (ON SC), 46 O.R. (3d) 754 (S.C.J.), not folld Other cases referred to McCombie v. Codette, unreported, June 16, 2000 (Ont. S.C.J.); Moons v. Maxin, unreported, May 12, 2000 (Ont. S.C.J.); Tsegay v. McGuire, 2000 50968 (ON SC), [2000] O.J. No. 1557 (S.C.J.) Statutes referred to Insurance Act, R.S.O. 1990, c. I.8, s. 258.3

Judith A. Hull, for the plaintiff (appellant). J. Sebastian Winny, for the defendant (respondent).

[1] EPSTEIN J.:-- In Ontario, a plaintiff shall not start an action for damages arising from a car accident, unless the plaintiff has undergone a defence medical, when requested to do so.

[2] This appeal from McGarry J. raises the question: if a plaintiff starts an action without complying with the request, does the court have a discretion to order compliance, or is the court limited to considering non-compliance only when awarding costs?

[3] The governing law is found in s. 258.3 of the Insurance Act, R.S.O. 1990, c. I.8 which provides in part:

258.3(1) Notice and disclosure before action -- An action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile shall not be commenced unless,

(d) the plaintiff has, at the defendant's expense, undergone examinations by one or more persons selected by the defendant who are members of Colleges as defined in the Regulated Health Professions Act, 1991, if the defendant requests the examinations within 90 days after receiving the notice under clause (b);

(9) Failure to comply -- Despite subsection (1), a person may commence an action without complying with subsection (1), but the court shall consider the non-compliance in awarding costs.

[4] The plaintiff was involved in a car accident on December 5, 1998 and her rights are governed by s. 258.3. The defendant is insured by State Farm. On April 9, 1999 the plaintiff's counsel notified the defendant and State Farm of her intention to commence this action. Shortly thereafter State Farm requested that the plaintiff undergo "all examinations under section 258.3(1)(d)" of the Act. In November 1999, State Farm advised that it had arranged three medical examinations to take place over two consecutive days. A few days later the plaintiff commenced this action.

[5] The plaintiff agreed to undergo the examinations of two of the doctors but objected to the Functional Capacities Assessment requested by State Farm due to concerns about her health.

[6] The defendant then brought a motion before McGarry J. for an order compelling the plaintiff to submit to this examination. He ordered the plaintiff to comply with the request for the Functional Capacities Assessment provided it [was] on the basis of a "suitably extended testing schedule".

[7] The plaintiff argues that by requiring the plaintiff to submit involuntarily to a medical examination, McGarry J. interpreted s. 258.3 as giving the court discretion to require compliance with a request made under s. 258.3(1)(d). Such discretion conflicts with the clear wording of the Act by imposing sanctions for non-compliance that were not contemplated by the legislature. Simply put, the plaintiff contends that the court has no jurisdiction to make an order for an examination under the Act.

[8] The defendant says this is an overly restrictive interpretation of s. 258.3 of the Act. The section is designed to ensure that certain disclosure steps are taken before an action starts. While s. 258.3(9) makes it clear that dismissal of an action is not an appropriate remedy for non-compliance with these disclosure requirements, it does not foreclose other remedies. To do justice between the parties, the court must have jurisdiction to address non-compliance in ways other than that contemplated in s. 258.3(9).

[9] Leave was granted to appeal McGarry J.'s decision primarily because there are conflicting decisions as to the proper interpretation of s. 258.3. In September of 1999, Kennedy J. in Boulianne v. Donovan, Court File No. 31287/99 (London) (S.C.J.) determined the court did have discretion to order compliance. Justice Kennedy, faced with an almost identical situation, ordered the plaintiff to attend a psychological examination pursuant to s. 258.3(1)(d). Patterson J. refused leave to appeal from that decision saying the motions judge "exercised his inherent jurisdiction under the Courts of Justice Act and properly followed the provisions of the Interpretation Act to grant the motion".

[10] The approach taken in Boulianne has been followed in a number of decisions including Moons v. Maxin (May 12, 2000) (Ont. S.C.J.) and McCombie v. Codette (June 16, 2000) (Ont. S.C.J.).

[11] Shortly after the decision was released in Boulianne, Stinson J. had an opportunity in Fasken (Litigation Guardian of) v. Iola (1999), 1999 15115 (ON SC), 46 O.R. (3d) 754 (S.C.J.) to consider the consequences of a plaintiff's failure to comply with the requirements of the section. He found that s. 258.3(1) expressly permits non-compliance with the early disclosure requirements and that s. (9) provides sanctions etc. The specific provision for the consequences of non-compliance led Stinson J. to deny the alternative request for an order forcing the plaintiff to submit to defence medical examinations. In the words of Stinson J. [at p. 759 O.R.]". . . the court should [not] create a remedy that the Legislature chose not to include."

[12] With respect, we disagree. Ontario enacted no-fault automobile insurance legislation to control the cost of insurance premiums by reducing the cost of motor vehicle claims. Under the Act, the insurer is obligated "to attempt to settle the claim as expeditiously as possible". To facilitate early settlement the legislature has given the insurer enhanced discovery rights before an action is started.

[13] The Act should be interpreted so as to prevent early resolution of motor vehicle claims. While s. 258.3(9) suggests costs as a sanction against non-compliance with the requirements designed to further this objective, the section should not be construed as prohibiting the court from granting another form of remedy consistent with that objective. Such an interpretation would undermine the legislation's objectives [and] unnecessarily fetter the court's authority to grant a remedy required in the interests of justice. The approach in Boulianne and those cases that followed is justified in terms of its compliance with legislative intent.

[14] While an insurer does have other rights to medical examinations of a plaintiff, we agree with Gillese J. in Tsegay v. McGuire, 2000 50968 (ON SC), [2000] O.J. No. 1557 (S.C.J.), that an insurer's right to an examination under s. 258.3(1)(d) of the Act is separate from its right to an examination under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 or the Courts of Justice Act, R.S.O. 1990, c. C.43. The key difference is that the rights under the Act are intended to facilitate settlement at the outset, possibly before an action is even started.

[15] Since McGarry J. did have a discretion to make the order, the next question is whether there are grounds to interfere with that discretion. Given that the condition imposed by McGarry J. was designed to protect the plaintiff from any adverse consequences of the Functional Capacities Assessment, we are not persuaded to interfere with the exercise of his discretion.

[16] The appeal is dismissed. The defendant is entitled to his costs of the appeal and of the leave application.

Appeal dismissed.