CITATION: Jerry et. al. v. Black et. al, 2023 ONSC 603

SUPERIOR COURT FILE NO: 16-1066 DIVISIONAL COURT FILE NO.: DC 21-1239

DATE: 20230125

ONTARIO

SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Lococo, Ryan Bell and Leiper JJ.

BETWEEN:

Maxwell Michael Jerry, Michael Jerry, Terri

Kevin Kemp, for the Plaintiffs (Respondents)

Jerry

Plaintiffs (Respondents)

– and –

Lynn Turnbull, for the Defendants

Kevin J. Black and Barbara Parr

(Appellants)

Defendants (Appellants)

HEARD at Oshawa: January 23, 2023

Leiper, J. (Orally)

PART 1: INTRODUCTION

[1] This is an appeal from the December 7, 2020 decision of Justice Jill Cameron dismissing the Appellants’ motion to be reimbursed for a late cancellation fee charged after one of the Respondents failed to attend for a consent independent medical examination.

[2] The Respondents in the underlying action have claimed for damages linked to a motor vehicle accident. One of the Respondents alleges the accident caused him to suffer a serious, permanent brain injury.

[3] The Respondent agreed to be assessed by a neuropsychologist. In April and May of 2018, counsel for the parties exchanged letters which confirmed:

i. the date for the 6.5-hour appointment,

ii. the Respondent’s agreement to attend, and

iii. that a missed appointment fee would be charged if he failed to attend.

[4] The amount of the missed appointment fee was not included in the correspondence, nor did the Respondents’ counsel request that information when the appointment was scheduled.

[5] The first scheduled appointment was rebooked at the request of the neuropsychologist and confirmed in writing. On the day of the scheduled appointment, the Respondent did not attend. The neuropsychologist charged a missed appointment fee of $1,695. The Appellants paid the fee and sought reimbursement from the Respondents. The Respondents refused to pay the missed appointment fee.

[6] The motion judge dismissed the Appellants’ motion for reimbursement. She accepted the Respondents’ argument that she did not have jurisdiction to make the order sought by the Appellants, citing the decision in Fung v. 1471519 Ontario Inc. o/a Big Mouth Kee, 2011 ONSC 749 (“Fung”). In that case, Justice Edwards considered this issue, stating:

While the practice within the personal injury bar to consensually arrive upon dates for defence medicals should be encouraged, there is, in my opinion, no jurisdiction in the court to order a plaintiff to pay for the costs of a cancelled defence medical appointment that has been scheduled without court order.

[7] On March 18, 2021, the Appellants obtained leave to appeal from the motion judge’s decision.

[8] For the reasons that follow, I would allow the appeal and order that the Respondents pay the missed appointment fee in the amount of $1,695.

PART II: ISSUES ON THE APPEAL

[9] The Divisional Court granted leave to appeal on two questions, which are the issues to be decided here:

Does the Superior Court have jurisdiction to order that a party pay the costs of an independent medical examination that they failed to attend in the absence of a court order for the examination?

If the Superior Court does have jurisdiction, should such an order be made in this case?

PART III: STANDARD OF REVIEW

[10] The standard of review for appeals is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. On questions of law, the standard is correctness. On questions of fact, the standard is palpable and overriding error. For questions of mixed fact and law the standard is palpable and overriding error except for in circumstances where there is an extricable legal principle, the standard of review in that case is correctness.

[11] The first question in this appeal is a pure question of law, because it concerns the jurisdiction of the Court to order costs of an independent medical examination that has not been ordered by the court. The standard of review for this question is one of correctness.

[12] If the answer to the first question is yes, then the question of whether to make such an order is one of mixed fact and law. The motion judge is entitled to deference on her findings of fact, subject to palpable and overriding error, and any extricable legal principle is subject to a standard of correctness.

PART IV: ANALYSIS OF THE ISSUES

i. Does the Superior Court have jurisdiction to order that a party pay the costs of an independent medical examination that they failed to attend in the absence of a court order for the examination?

[13] The existing law and jurisprudence on jurisdiction and costs, favour a finding that a judge has jurisdiction to consider the factors in the Rules and to exercise discretion relative to non- attendance fees at independent medical examinations. Neither the legislation, nor the rules of court, in my view, limit the awarding of costs for a missed appointment to circumstances where the court has ordered an independent medical assessment.

[14] Assessing costs is an exercise of discretion, to be carried out reasonably and with a view to facilitating access to justice: Boucher v. Public Accountants Council for the Province of Ontario, (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at para. 31. A proper costs assessment requires a court to examine the relevant factors critically, but also to consider whether the result of the critical analysis is “fair and reasonable”: Restoule v. Canada (Attorney General), 2021 ONCA 779, 466

D.L.R. (4th) 2, at para. 356, citing Boucher, at para. 24; Murano v. Bank of Montreal (1998), 163

D.L.R. (4th) 21 (Ont. C.A.), at para. 100; Apotex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587, at para. 60.

[15] The Superior Court has broad jurisdiction to make orders as to costs: See 1318847 Ontario Ltd. v. Laval Tool and Mould Ltd., 2017 ONCA 184, at para. 69. The discretion to award costs is informed by the inherent jurisdiction of superior courts of civil jurisdiction in Canada as recognized by the Supreme Court of Canada in Endean v. British Columbia, 2016 SCC 42, 401

D.L.R. (4th) 577 (S.C.C.), at para. 23:

Inherent jurisdiction derives from the very nature of the court as a superior court of law and may be defined as a “reserve or fund of powers” or a “residual source of powers”, which a superior court “may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.

[16] Beginning with the statutory provisions in Ontario’s civil costs regime, the Superior Court of Justice is empowered to order costs “of and incidental to a proceeding or a step in a proceeding” by virtue of section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C-43. Costs decisions are in the discretion of the court. The court is empowered to decide “by whom and to what extent” costs shall be paid. This costs power is not absolute: it is subject to the provisions of an “Act or the rules of court.” Again, this is informed by the reality that although possessed of

residual discretion, a superior court of civil jurisdiction does not have absolute authority: 80 Wellesley Street E. Ltd v. Fundy Bay Builders Ltd., 1972 535 (ON CA), 1972 CarswellOnt 1010, [1972] 2 O.R. 280.

[17] Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 sets out a comprehensive, but not closed, list of factors for the court to consider in awarding costs.

[18] Neither s. 131 of the CJA, nor any of the provisions within r. 57 limit a judge’s discretion to consider and potentially order payment of costs in circumstances where an independent medical examination, as a step in a proceeding on agreement of counsel, attracts a missed appointment fee. The provisions on how such appointments can be required is also provided for in the CJA, and in the rules of court.

[19] Section 105 of the CJA legislates the power of the court to order a party to attend for a physical or mental examination, defines who may carry out such examinations, and requires a party being examined to respond to questions from the health practitioner carrying out the examination.

[20] Rule 33 of the Rules of Civil Procedure specifies the process for obtaining an order under

s. 105, prescribes the content of orders to attend for medical examinations, the process for examinations and penalties for non-attendance. It also treats examinations that have been consented to without court order similarly to those made under court order for the purposes of the provisions in r. 33.01-33.07: see r. 33.08 which provides:

Examination by Consent

33.08 Rules 33.01 to 33.07 apply to a physical or mental examination conducted on the consent in writing of the parties, except to the extent that they are waived by the consent. R.R.O. 1990, Reg. 194, r. 33.08.

[21] The implications of r. 33.08 are that, unless otherwise waived by the terms of the consent, a party who fails to attend for a medical examination that has been consented to in writing is subject to the same penalty found in r. 33.07 for failing to comply as a party who has been ordered to attend.

[22] As a logical extension of treating a consensual independent medical examination like a court-ordered examination, it is consistent to include the ability to order costs as a consequence for non-attendance, depending on the circumstances of the case. It would also respond to the underlying policy aims of costs: it would encourage consents in the appropriate cases and reduce the costs of unnecessary motions. The ability to order costs for a “no-show” gives the court a practical tool to respond to those who might wish to unfairly add to the opposing party’s costs.

[23] The parties were not able to provide any appellate level guidance on the jurisdictional question. The Respondents rely on the decision in Fung, which had a different factual backdrop: in that case, the defendants had sought to recover the cost of a missed appointment for an independent medical appointment made unilaterally for the plaintiff.

[24] The trial level jurisprudence on this question treats decisions on costs of missed appointments as one of discretion rather than jurisdiction where a Rule 33 examination on consent or by court order is involved, versus a unilaterally scheduled appointment without written consent. This is consistent with the context, policy aims, and the content of the rules, as well as the CJA.

[25]In Valentine v Rodriguez-Elizalde, 2016 ONSC 6395, at para. 72, the defendant admitted liability and the jury awarded damages. In assessing costs, Firestone, J. concluded that the $800 non-attendance fee paid by plaintiff’s counsel to the defendant solicitors because the plaintiff had failed to attend a defence medical “was not an assessable disbursement.” (See para. 72).

[26] In Armocida v. Sanelli, 2003 34705 (ON SC), Master Dash reviewed Rule 33 in the context of a missed medical appointment that was not ordered and was not the subject of written consent in accordance with r. 33.08. Master Dash concluded that in such circumstances, he had no authority to order reimbursement for the non-attendance fee, because the appointment was unilaterally scheduled and not made within the Rule 33 regime. Heeney, J. employed similar reasoning in Moore v. Jacob, 2022 ONSC 10, at paras. 40-41.

[27] In Giancoulas v. Aetna Life Insurance Co. of Canada, 2002 41993 (ON CA), 2002 CarswellOnt 1366 (ON CA), the Court of Appeal for Ontario upheld a costs order of $1,287.50 made by the motions judge for [a plaintiff’s] failure to complete a defence medical appointment and failure to reschedule to complete the assessment.

[28] In a more recent case involving a Rule 33 medical examination, Master Dash was prepared to order the cost of a missed medical examination, as summarized in the overview of the litigation by Justice Chalmers: see Francis v. Leo A. Seydel Limited o/a Canadian Tire Associate Store #126, 2021 ONSC 6874, at para. 5.

[29] In Fung, Edwards J. would have limited the reimbursement for a missed appointment to circumstances where the medical assessment was ordered by the court, and not where it was the product of an agreement among counsel. The issue arose secondarily to a motion for security for costs and did not appear to involve the application of Rule 33 to “in-writing” consent medical assessments under the Rule: see Fung at paras. 11-12.

[30] In Briscoe v. Borges et al. Endorsement of Hourigan, J. dated April 4, 2013 (S.C.J.) Justice Hourigan (as he then was) disagreed with the application of Fung and ordered that the defendant pay for the missed appointment. In his endorsement, Hourigan J. wrote:

I disagree with the conclusion of Justice Edwards in Fung. The primary purpose of the Rules is to ensure that proceedings are dealt with in the most efficient and least costly manner possible. To insist that a court order be obtained to protect the plaintiff from cancellation/no-show fees runs contrary to the purpose of the rules. Moreover, the defendant having agreed to the date and being made aware that she would face the $2,000 fee if she did not attend, is estopped from now saying that she would only be responsible for the fee if a court order was obtained.

[31] In Stewart v. Vandenbosch, (Endorsement dated August 10, 2018) (S.C.J.), Master Jolley found that she had jurisdiction to order payment of a $1,695 missed appointment fee on the basis that the plaintiff had consented in writing to the independent medical examination: See Stewart at paras. 3-9.

[32] Finally, in Chapell v. Marshall Estate, 2001 CarswellOnt 2731 at paras 24-34, Justice Valin ordered reimbursement for a missed independent medical examination, which had not been court-ordered, nor apparently the subject of any written consent. Valin, J. grounded the order of reimbursement in counsel’s obligations of civility and the cost to the defendant of plaintiff- counsel’s lack of communication about the assessment, and on the fact that counsel for the plaintiff had been put on notice of the “No Show” policy of the defence physiatrist.

[33] The cases on this issue have three things in common: they are highly fact specific exercises in discretion, with a variety of approaches taken by various judicial officers, usually concerning amounts that are modest in the context of the overall cost of litigation. Where judicial officers have limited their discretion, it has been in the context of unilateral appointments, without either written consent or court order, thus not being constituted under the Rule 33 regime.

[34] I conclude that the court’s broad discretion to order costs, the provisions of the CJA and the Rules and the underlying policy aims behind costs, all favour a finding that there is jurisdiction to order costs, including those relative to missed appointment fees in circumstances where there has been a written consent to attend an appointment within Rule 33. With respect, the motion judge erred in law in finding that she did not have was no jurisdiction to consider making an order for reimbursement of the missed appointment fee in circumstances where the Respondent consented in writing to attend for the independent medical examination.

ii If the Superior Court does have jurisdiction, should such an order be made in this case?

[35] Having found that the Superior Court had jurisdiction to make the order sought by the Appellants, should such an order be made in this case? I conclude that the fee charged was reasonable given the benchmarks found in the case law, the nature of the appointment, and the three-day notice period for cancellation which was communicated in advance through counsel.

[36] The findings of fact by the motions judge confirm that the independent assessment was agreed to in writing. Appellants’ counsel put the Respondents on notice that, if the Respondent failed to attend, a missed appointment fee would be assessed. Counsel for the Respondents did not acknowledge, follow-up or dispute the terms of the appointment. While it would have been useful, practical and likely dispositive of the issues for the amount of the cancellation fee to have been communicated, the failure to do so in the circumstances of this case does not mean that a reasonable fee should not be assessed to the Respondents.

[37] The original appointment was scheduled over three months from the correspondence, and the request to rebook it came three weeks before the first scheduled appointment. The correspondence from Appellants’ counsel was timely, clear and reasonable.

[38] The Respondent forgot about the September appointment. The neuropsychologist assessed a missed appointment fee of $1,695. The Appellants paid the invoice. The Respondents refused to pay the fee. The Respondents maintained that they were not liable to pay the invoice because this was not a court-ordered examination, they had not been told what the quantum of the fee would be and they had not agreed in advance to pay the fee, which they characterized as unreasonable.

[39] This examination was properly constituted under Rule 33. The Appellants did everything in their power to ensure it proceeded. It would be unfair for them to be responsible for paying for a fee that was caused by the apparent carelessness of the Respondent in not attending for the appointment.

[40] In Stewart, Master Jolley approved the missed appointment fee of the neuropsychologist of

$1,675. This decision, and the range of fees associated with other types of medical-legal assessments provide a sufficient benchmark to permit a finding that a cancellation fee for a full day appointment that falls between $1,000-$2,000 is not unreasonable.

[41] Parties and counsel are well advised to communicate the terms, and the amounts of cancellation fees for independent medical examinations arranged pursuant to Rule 33 in advance.

[42] That would reduce the need for litigation concerning these steps in proceedings. I would order payment of the cancellation fee charged by the neuropsychologist of $1,695 in this case.

PART V: CONCLUSION

[43] I would allow the appeal. As agreed by the parties, I would order that the Respondents pay costs of $8,500, all inclusive of the costs of the appeal, the motion for leave to appeal and the costs of the motion below.

I agree.

I agree.

Ryan Bell J.

Date of Reasons for Judgment: 23 January 2023 Date of Release: 25 January 2023

CITATION: Jerry et. al. v. Black et. al, 2023 ONSC 603 SUPERIOR COURT FILE NO: 16-1066 DIVISIONAL COURT FILE NO.: DC 21-1239

DATE: 20230125

ONTARIO

SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Lococo, Ryan Bell and Leiper JJ.

BETWEEN:

MAXWELL MICHAEL JERRY, MICHAEL JERRY, TERRI JERRY

Plaintiffs

-and-

KEVIN J. BLACK and BARBARA PARR

Defendants

ORAL REASONS FOR JUDGMENT

Leiper J.

Date of Reasons for Judgment: 23 January 2023 Date of Release: 25 January 2023