CITATION: Moore v. Bertuzzi, 2012 ONSC 3497

COURT FILE NO.: 06-CV-306081

MOTION HEARD: June 11, 2012

ENDORSEMENT RELEASED: June 28, 2012

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: STEVE MOORE, JACK MOORE and ANNA MOORE v. TODD BERTUZZI, ORCA BAY HOCKEY LIMITED PARTNERSHIP, ORCA BAY HOCKEY, INC. dba THE VANCOUVER CANUCKS HOCKEY CLUB, VANCOUVER CANUCKS LIMITED PARTNERSHIP and VANCOUVER HOCKEY GENERAL PARTNERS INC.

BEFORE: Master R. Dash

COUNSEL: Timothy Danson and Marjan Delavar, for the plaintiffs

Geoffrey Adair, for the defendant Bertuzzi

Alan D’Silva and James Mangan, for the Orca Bay defendants

REASONS FOR DECISION

[1] On January 4, 2012 I made an order, upon motion of the defendants, that the plaintiff Steve Moore undergo defence medical examinations by two neuropsychologists, one on behalf of the defendant Bertuzzi and the other on behalf of the Orca Bay defendants. Certain terms were included in the order as to the conduct of the examinations. At the time the order was made, the plaintiffs and the court were under the impression that those defendants were adverse in interest on the basis of existing crossclaims. A few weeks later it was revealed that the defendants had signed an agreement six months earlier to settle and apportion in specified percentages liability as between themselves and to dismiss their respective crossclaims. The plaintiffs move under rule 59.06 to have me set aside my January 4th order on the basis of this subsequently discovered fact and on the basis that the examinations were not conducted in accordance with the terms of my order. They submit that denying both examinations is the appropriate consequence for breach of their disclosure obligations.

Background

[2] The background to this action and the facts leading up to this motion are set out in greater detail in my endorsement of February 15, 2012[^1] and they will not be repeated in this endorsement except by brief summary. The plaintiff Steve Moore, then a hockey player with the Colorado Avalanche, was struck from behind by the defendant Todd Bertuzzi, a hockey player then with the Vancouver Canucks, during a National Hockey League game on March 8, 2004, and suffered serious injuries. Bertuzzi pleaded guilty to a criminal assault charge arising out of the incident. The attack on Moore was allegedly in retaliation for an incident in an earlier game when Moore checked and injured a star Canucks player. In the amended statement of claim the plaintiffs brought action against Bertuzzi for damages for assault and against the Canucks organization (the “Orca Bay defendants”) for vicarious liability for Bertuzzi’s actions as well as for their own negligence. The plaintiffs alleged that Orca Bay management including then general manager Brian Burke and Canucks’ then coach, Marc Crawford, encouraged Canucks players to retaliate against Moore and failed to take steps to prevent violence against Moore. Bertuzzi crossclaimed against the Canucks and added coach Crawford as a third party claiming that he was required to follow his coach’s direction to make Moore “pay the price”. Orca Bay denied vicarious liability, denied encouraging retaliation and crossclaimed against Bertuzzi, whom they said hit Moore from behind completely on his own and independent of coaching staff. Crawford pleaded that Bertuzzi’s “criminal attack” was contrary to Crawford’s directions.

[3] Clearly, on the pleadings, there was an adversity of interest between Bertuzzi and Orca Bay and between Bertuzzi and Crawford. This adversity continued through the production and discovery stages of this action. The action was set down for trial on January 26, 2010 and trial dates were set at a case conference before Moore J. on July 21, 2011.

[4] In July 2011, shortly before the case conference with Justice Moore, Bertuzzi, Crawford and Orca Bay signed minutes of settlement in which they agreed to “settle issues of liability” as between themselves and to each pay a specified percentage of any monetary award regardless of any apportionment at trial or of any settlement. They also agreed to dismiss the third party claim against Crawford and to dismiss the respective crossclaims between Bertuzzi and Orca Bay. In my endorsement of February 15, 2012, I referred to this as a proportional sharing agreement. I stated that it was not a Mary Carter agreement, but like a Mary Carter agreement, it was a secret agreement among some but not all parties that ended adversity among the settling parties.

[5] The defendants did not tell Moore about the agreement. Bertuzzi and Crawford obtained an order from the registrar on August 24, 2011 dismissing the third party claim on consent. The plaintiffs were not made aware of that motion or the resulting order.[^2] The first the plaintiffs heard of the order was on September 19, 2011 when Crawford’s lawyer told the plaintiffs’ lawyer that she need not be included in arrangements to schedule a pre-trial as the third party claim had been dismissed. There was no mention of any written agreement. The plaintiffs’ lawyer at that time was not aware that there was also an agreement between Bertuzzi and Orca Bay to settle liability between them and to dismiss the crossclaims.

[6] The plaintiffs’ lawyer asked the defendants’ lawyers to advise him of any agreements, Mary Carter or otherwise, between Bertuzzi, Orca Bay and Crawford. The defendants never responded to that request.

The January 4th Hearing

[7] On January 4, 2012 I heard a full day motion for a variety of relief brought by all parties. Two of the motions heard that day are relevant to the matter currently before me. The defendant Bertuzzi on behalf of himself and on behalf of Orca Bay brought a motion to compel the plaintiff to submit to defence neuropsychological assessments by two separate neuropsychologists, one on behalf of Bertuzzi and one on behalf of Orca Bay. The plaintiffs brought a motion to compel disclosure of any settlement agreement among Bertuzzi, Orca Bay and Crawford.

[8] The parties commenced argument on the disclosure motion. The plaintiffs had not been told if there was an agreement or what it said and as such could not argue how such an agreement, if it existed, may have tilted the landscape of the action. The plaintiffs suspected that Orca Bay may have paid Bertuzzi to drop the third party claim against Crawford. Mr. Adair, the lawyer for Bertuzzi, would neither confirm nor deny the existence of an agreement stating that the existence of an agreement was no more than speculation and there was no evidence of an agreement that would tilt the landscape of the litigation. In response to questions from the court as to the effect that an agreement might have on the conduct of the trial the lawyers for both defendants asked for time to consider their position. That motion was adjourned to January 23rd and I ordered the defendants to bring any such agreement for the court’s inspection on the return date. I was under the impression at that time that if there was an agreement it would have concerned the dismissal of the third party claim against Crawford. I had not considered that there may have been an agreement to end all adversity between the defendants and dismiss the crossclaims.

[9] The motion for the two neuropsychological assessments was then argued. There was an urgency to the motion as the neuropsychologists, one from B.C. and one from the United States, were scheduled to come to Toronto the following week to conduct the assessments. The defendants’ experts proposed that to avoid the well known “practice effect”[^3] of multiple neuropsychological testing they would agree on a single joint testing protocol performed by a single independent psychometrist and each neuropsychologist would conduct a separate clinical interview out of the presence of each other so as to permit them to make an independent assessment.

[10] The defendants’ affiant on that motion, Michael Jordan, in the first full bullet point in paragraph 22 on page 8 of his affidavit stated that Dr. McCrea, one of the neuropsychologists, proposed the following structure to the examination: In the morning of Day 1 Dr. McCrea and Dr. Iverson would conduct separate interviews of Mr. Moore up to 90 minutes each, psychometric testing would be performed by a psychometrist in the afternoon of Day 1, psychometric testing would continue in the morning of Day 2 and, if necessary, continue in the afternoon of Day 2.

[11] The plaintiff’s lawyer, Mr. Danson, consented to a neuropsychological assessment but was opposed to each defendant having their expert conduct a separate assessment or clinical interview of Mr. Moore. He argued that as there was no adversity between the defendants on the issue of the plaintiff’s damages and as they were able to agree on a joint testing protocol, the defendants should also be able to agree on a joint set of questions for a clinical interview to be conducted by only one of the neuropsychologists and then each could write a report. Mr. Danson did not know that in addition to an absence of adversity on damages there was also no adversity between Bertuzzi and Orca Bay on any issue, including liability. As a result Mr. Danson did not argue that the defendants should be entitled to only a single neuropsychological assessment because of their unity of interest.

[12] I also did not know that the defendants had ended their adversity and had signed an agreement as to how liability would be apportioned whatever the outcome at trial. During the course of argument I specifically stated that despite the defendants’ common interest on damages, the defendants had separate interests to protect. What I meant, and what I assumed, perhaps incorrectly, that the parties understood was that as a result of the existing crossclaims between the defendants, the defendants remained adverse in interest on liability. Neither defendant told me otherwise. I concluded in my February 15th endorsement, and in an addendum released on February 28, 2012[^4] that the defendants’ lawyers did not set out deliberately to mislead the court, failed to understand that my reference to “separate interests to protect” meant that I believed the defendants remained adverse in interest on liability and made an honest, but mistaken decision not to advise the court about the agreement to end adversity. They believed they had had no obligation to disclose but rather had a duty to protect what they considered to be a privileged settlement agreement.

[13] In the result I determined that the procedure outlined in the Jordan affidavit set out “a reasonable proposal to minimize the practice effect and permit each neuropsychologist to come up with an independent assessment”, that the plaintiff already had a neuropsychological assessment and a consultation from a second, that the plaintiff claims significant damages from traumatic brain injury and neuropsychological assessments were “key to understanding the extent of such damages” and that a neuropsychological examination was the only defence medical requested by Orca Bay and only one of two by Bertuzzi.

[14] In conclusion I stated: “In my view, despite the absence of adversity, considering the importance of neuropsychological assessments to traumatic brain injury, both defendants are entitled to independent neuropsychological assessments, and in the absence of evidence to the contrary, the process outlined in para. 22 of the Jordan affidavit is the most effective way to permit independent assessments while minimizing the practice effects as well as the impact on the plaintiff who will have to attend on only one occasion for 1½ days...” Of course my reference to “absence of adversity” meant absence of adversity on damages since I did not know about and did not consider the impact of absence of adversity on liability. I therefore ordered that the plaintiff submit to two neuropsychological assessments and that they be conducted in the manner set out in the “first full bullet on page 8” of the Jordan affidavit.

[15] After that decision was rendered two matters were discovered. Firstly it was revealed that the defendants had actually signed a settlement agreement ending all adversity between them six months earlier but had told neither the plaintiffs nor the court. Secondly the assessments were not conducted in the manner set out in the Jordan affidavit and as ordered by me.

The Settlement Agreement

[16] With respect to the discovery of the settlement agreement, the defendants’ lawyers attended before me on the disclosure motion on January 23rd and asked for an order on the consent of all defendants dismissing the crossclaims that each had against the other. The defendants then handed up the agreement for in camera review by the court. In my endorsement of February 15, 2012 I described the agreement as follows:

[T]he Minutes of Settlement state in the preamble that the parties agree to “settle issues of liability” as between Bertuzzi, Orca Bay and Crawford. The operative part of the agreement provides for a specified percentage apportionment and payment by Bertuzzi, by Orca Bay and by Crawford of any monetary award regardless of any finding or apportionment of liability made in the action. Funding of any settlement would be on the same basis. I would consider this to be a “proportional sharing agreement”...There is an agreement by Bertuzzi and Orca Bay to release each other from liability and not pursue any crossclaims as well as an agreement by Bertuzzi and Crawford to release each other from liability, not pursue claims against each other and consent to a dismissal of the third party claim.

This was the first acknowledgment by the defendants that any agreement existed between the defendants. It was the first indication to the court and to Mr. Danson[^5] that the defendants had agreed (some 6 months earlier) to dismiss their crossclaims and to end all adversity between them, including adversity on the issue of liability.

The January 23rd Hearing

[17] At the hearing of the motion on January 23rd the defendants continued to maintain that there was no obligation to disclose any of the contents of the agreement and that the agreement did not alter the landscape of the litigation. Mr. Danson, now aware of the dismissal of the crossclaims but not the contents of the agreement reviewed by the court, argued that any agreement to end adversity between the defendants altered the landscape of the action. In reasons released on February 15, 2012 I ordered that the agreement needed to be disclosed, should have been disclosed immediately after it was signed in July 2011 and that, subject to certain redactions and confidentiality provisions, needed to now be produced to the plaintiffs.

[18] In the course of my reasons I concluded that the agreement between the defendants to end adversity affected not only the landscape of the trial, but also pre-trial procedures. In particular with respect to pre-trial procedures I commented about the effect that failure to disclose the settlement agreement may have had on my January 4th decision to order assessments by two neuropsychologists, one on behalf of Bertuzzi and one on behalf of Orca Bay:

[21] Unfortunately this information had not been disclosed to me on January 4th when I agreed to the defendants’ request to have Mr. Moore submit to neuropsychological examinations by each of their respective experts. While the plaintiffs had argued that the defendants had no adversity on the issue of Moore’s damages, the court was left with the inference (although not stated explicitly) that there remained adversity on the issue of liability and thus separate interests to protect. If I knew on January 4th what I learned on January 23rd upon examination of the agreement, I may well have come to a different decision on allowing two neuropsychological examinations. In my view it was wrong of both defendants’ lawyers not to bring the agreement, or at least the pending dismissals of the crossclaims, to my attention...[^6]

[19] I commented later in my January 23rd reasons on how the non-disclosure affected pre-trial procedures and in particular the motion for two neuropsychological assessments:

[82] Dealing first with pre-trial procedure, this is illustrated with clarity in the motion determined by me on January 4, 2012 to permit each of Bertuzzi and Orca Bay to have neuropsychological assessments by their own separate experts. This determination was made before the defendants disclosed either the existence of a proportional sharing agreement or that they had agreed to dismiss their respective crossclaims against each other. That there was an agreement to end adversity between the defendants was known to both defendants’ counsel on January 4th, but it was not known to the plaintiffs or to me. Although the plaintiffs argued in opposition to that order that the defendants had a common interest “on damages”, they did not ague, because they did not know, that the defendants also had a common interest on liability.

[83] Although neither counsel for the defendants stated this explicitly, the court was left with the inference that each defendant was adverse in interest to the other and had a separate interest to protect. I raised the “separate interest” issue with counsel during argument and neither counsel advised me that that inference was no longer correct...I do not suggest that the lawyers deliberately attempted to mislead the court, but I do conclude that they had a duty to correct my misapprehension.

[84] My apprehension on January 4th that the defendants remained adverse in interest and had separate interests to protect was one of the key considerations in my decision to permit two examinations in the same specialty, one on behalf of each defendant. I do not say that the result would necessarily have been different had I been properly informed; however the agreement should have been disclosed so that the plaintiffs could argue and the court could consider the termination of adversity between the defendants who were seeking separate examinations as a factor in my determination of the issue. While there has been no disclosed intention to seek other medical examinations by each defendant in the same speciality it would be important for the plaintiffs and the court to know about the agreement before deciding such motion.[^7]

[20] The defendants then asked me to release supplementary reasons out of concern that I had impugned their professional reputations in my reasons. On February 28, 2012 I released an addendum to my February 15th reasons to clarify that I was not suggesting that the defendants had deliberately intended to mislead the court when they failed to advise me on January 4th about the agreement to dismiss the crossclaims and end adversity between them, that they had not stated explicitly nor implied that there was continuing adversity between Bertuzzi and Orca Bay on liability, that they that they had failed to appreciate on January 4th by my references to “separate interests to protect” that I held the mistaken belief that the defendants remained adverse in interest and that they held an honest but mistaken view that they had no obligation to advise the court about the agreement.

[21] I made certain comments however with respect to the effect of the non-disclosure on the January 4th motion:

[3] ... They were of the view firstly, that the agreement had no relevance to the issue before me ... In my view however the agreement was relevant to the motion. If disclosed it would have permitted the plaintiffs to make submissions as to the effect of the agreement on the right to two neuropsychological examinations and would have been a consideration by me in the determination of the motion, although not necessarily decisive of the motion...

[4] I held in my February 15th endorsement that the commonality of interests on liability would have been a factor in my decision on January 4th to permit two neuropsychological examinations but the result would not necessarily have been different. This is not the time to address what the result would have been if disclosure had been made. The time to argue that will be on the plaintiffs’ upcoming motion to set aside the January 4th order for two neuropsychological examinations.

[5] The defendants point out that the only submissions made by the plaintiffs’ lawyer on January 4th in opposition to two neuropsychological examinations was that the defendants had a common interest on the issue of damages and that I permitted two examinations despite the common interest on the issue of damages. The plaintiffs’ lawyer however was unable to argue an absence of adversity or common interest on liability since he was unaware that the defendants had agreed to a dismissal of the crossclaims. I granted the two examinations despite the common interest on damages because I was under the misapprehension that the defendants remained adverse on liability due to the crossclaims and thus had separate interests to protect...

[8] I conclude by repeating that in my view the defendants’ lawyers on January 4, 2012 did not set out to deliberately mislead the court ... It is not the intentions or the motives of the lawyers in failing to disclose that is in issue, but rather the effect of the non-disclosure on the January 4th motion. This further demonstrates why disclosure of such agreements is necessary immediately after they are signed as stated by the Court of Appeal in Aecon Buildings v. Brampton. Such disclosure would have relieved the defendants from having to decide whether the court would consider the agreement relevant for the particular motion.[^8]

Consequences of Failure to Disclose the Settlement Agreement

[22] In Aecon v. Brampton the Court of Appeal addressed the consequences of non-disclosure of these types of agreements as follows:

The obligation of immediate disclosure is clear and unequivocal. It is not optional. Any failure of compliance amounts to abuse of process and must result in consequences of the most serious nature for the defaulting party...Only by imposing consequences of the most serious nature on the defaulting party is the court able to enforce and control its own process and ensure that justice is done between and among the parties.[^9]

[23] As the consequences of the non-disclosure were not addressed in my decision of February 15th, I left open the possibility that the plaintiffs may seek a remedy. I stated as follows:

I have not made any specific order arising out of the defendants’ failure to “immediately” disclose the agreement as required other than requiring disclosure at this time. This is without prejudice to the plaintiffs seeking other relief at or before trial if appropriate. As the Court of Appeal stated in Aecon: “The obligation of immediate disclosure is clear and unequivocal. It is not optional. Any failure of compliance amounts to abuse of process and must result in consequences of the most serious nature for the defaulting party.”

[24] My decision of February 15, 2012 to compel disclosure and production of the settlement agreement was upheld on appeal by Perell J. on June 4, 2012.[^10] Justice Perell stated that an otherwise privileged settlement agreement must be immediately disclosed when it “changes the adversarial orientation of the lawsuit” so that the court can “maintain the fairness and integrity of the process.”[^11]

[25] What then are the consequences of the failure to disclose?

The Position of the Parties

[26] The plaintiffs take the position that if I had known on January 4th that there was no adversity in interest as between the defendants on either liability or damages I would not have ordered more than one neuropsychological examination. They submit however that the appropriate disposition is not to vary my order and permit only one examination, since the defendants would then obtain what they would have been entitled to if they had made proper disclosure of the agreement and would suffer no adverse consequences resulting from their failure to disclose. They submit that the appropriate consequence is to set aside my order in its entirety and deprive the defendants of any neuropsychological examinations. They claim that the reports from both examinations should also be set aside as a consequence of the breach of my order as to the conduct of the examinations.

[27] The defendants submit that the plaintiff Steve Moore claims he has suffered a serious brain injury, that a neuropsychological examination is essential to an understanding of a brain injury and that by depriving the defendants of a neuropsychological examination, or even restricting them to one neuropsychological examination, I would be tearing out the heart of their ability to properly defend the action. They suggest that the only appropriate consequence for their failure to disclose is to award the plaintiffs full indemnity costs of this motion. They also argue that as the examinations have been conducted and reports served, I should not make any order respecting the admissibility of the reports as that is within the purview of the trial judge.

The Conduct of the Examinations: Breach of the January 4th Order

[28] The plaintiffs’ second complaint relates to the manner in which the two neuropsychological examinations were conducted in violation of my order of January 4, 2012.

[29] As stated earlier, Michael Jordan, in his affidavit for the January 4th motion on behalf of the defendant Bertuzzi, set out a very specific proposal for the conduct of the examinations that had been suggested to him by one of the neuropsychologists, Dr. McCrea. The proposed protocol was necessary only because the defendants sought an examination by two neuropsychologists, one on behalf of each defendant. The protocol was designed to avoid the practice effect of multiple neuropsychological examinations while permitting each expert to develop a separate and independent assessment of the plaintiff. The neuropsychologists agreed that to achieve this result each of them would conduct a separate clinical interview out of the presence of each other followed by a single joint testing protocol to be performed by an independent psychometrist.

[30] In my order of January 4th I specifically adopted the suggested protocol and ordered that the neuropsychological examinations “proceed in the manner set out in the first full bullet point on page 8” of the Jordan affidavit. That bullet point set out the protocol as follows: In the morning of Day 1 Dr. McCrea and Dr. Iverson would conduct separate interviews of Mr. Moore up to 90 minutes each, psychometric testing would be performed by a psychometrist in the afternoon of Day 1, psychometric testing would continue in the morning of Day 2 and, if necessary, continue in the afternoon of Day 2.

[31] The examination did not proceed in accordance with the protocol. Each of Steve Moore and Dr. McCrae filed an affidavit on this motion. Each gave a similar description as to how the examination took place, although they differ on timing. On Day 1 Dr. McCrae first interviewed the plaintiff in the morning for two hours (according to the plaintiff) or one hour (according to Dr. McCrae). According to the plaintiff Dr. Iverson then interviewed the plaintiff for approximately 45 minutes in the morning and an additional one to one and a half hours in the afternoon. Dr. Iverson himself then conducted psychometric testing for approximately two to 2½ hours according to the plaintiff. Dr. Iverson says on Day 1 he was with Mr. Moore for interview and testing for 70 minutes in the morning and 3½ hours in the afternoon. It is common ground that there was no testing by an independent psychometrist. The interviews were not completed on Day 1. On Day 2 Dr. McCrae continued his interview of the plaintiff in the morning (asking follow up questions that had occurred to him while reading his notes from the first day) followed by Dr. McCrae conducting “his portion” of the psychometric testing. In total Dr. McCrae was with the plaintiff the morning of Day 2 for 1¼ hours (according to the plaintiff) or 1½ hours (according to Dr. McCrae). According to the plaintiff, Dr. Iverson then continued with psychometric testing in the morning for 1¼ hours followed by more interviews and testing “interchanging the two” in the afternoon for approximately four hours. Dr. Iverson’s estimate of time spent on Day 2 was approximately the same although he does not break down interview and testing time.

[32] What is clear are the following breaches of my January 4th order:

(a) Each clinical interview exceeded 90 minutes;

(b) The interviews were not completed in the morning of Day 1, but continued into the afternoon and into Day 2;

(c) No psychometric testing was conducted by an independent psychometrist but rather was administered by Drs. McCrae and Iverson themselves;

(d) Psychometric testing did not commence following the conclusion of the interview sessions, but rather was administered interchangeably with additional interviews.

[33] On January 6, 2012 I was presented with a formal order to sign respecting my January 4th endorsement; however it was a truncated version of my endorsement as it ordered only that independent neuropsychological assessments be conducted in Toronto on January 9th and 10th, 2012 by Dr. McCrae and Dr. Iverson. It left out that part of my endorsement that required that the examinations be conducted in the specific manner set out in the Jordan affidavit. I was advised that the order was necessary only to facilitate Dr. McCrae’s entry into Canada to conduct the examination.[^12] It is however now conceded by the defendants that my “actual” order is that contained in the January 4th endorsement and is not restricted to the terms of the formal order signed on January 6th.

[34] What is particularly troubling to me is that the lawyers for Dr. McCrae never gave him a copy of my January 4th endorsement setting out the parameters for the conduct of the examination, only the truncated formal order.

[35] In his affidavit, Dr. McCrae concedes that he outlined the proposed structure for the joint examinations and testing to Mr. Jordan, that he had discussed it generally with Dr. Iverson before he spoke to Mr. Jordan and that Mr. Jordan in his affidavit correctly stated the substance of the information given by Dr. McCrae about the proposed structure, although he did not review the affidavit before conducting the examination. He claims he did not state the proposed protocol “with any degree of exactitude” because he did not appreciate that the format was in issue other than as it pertained to the issue of a joint clinical interview. He gives as an example his failure to convey that follow up questions were a normal part of a neuropsychological assessment and that it was not his intention to convey “that the proposed structure would be followed precisely or with any degree of rigidity.” He states that the interviews were interrupted to conduct the testing out of a concern that the testing might not be completed in a timely way. He says that he and Dr. Iverson decided to conduct the testing themselves rather than using a Toronto psychometrist with whom they were not familiar.

[36] Dr. McCrae confirmed that Bertuzzi’s lawyers stated only that the court ordered the two examinations to proceed on January 9th and 10th but nothing was said about the format of the examinations except that the court permitted him and Dr. Iverson to conduct separate clinical interviews. He claims neither he nor Dr. Iverson appreciated that the court was concerned about the specific testing protocol and that he did not tell the lawyers about the changes they made to the protocol during the course of the testing.

[37] The plaintiffs argue that the breach of my January 4th order respecting the protocol to be followed during the examinations and the failure of the defendants’ lawyers to advise the neuropsychologists about my endorsement ordering that the examinations be conducted in accordance with the protocol is an additional reason why my January 4th order should be set aside in its entirety.

[38] The defendants’ lawyers argue that neither they nor the neuropsychologists had any notion that the court was concerned about the format of the examinations except that they be conducted in a respectful and professional manner within reasonable and normal limits, which they were. They claim there is no evidence that the manner in which the examinations were conducted caused the plaintiffs any prejudice or resulted in assessments that were not independent and reliable and that admissibility and weight is a matter for the trial court.

The Three Bases for the Motion to set Aside the January 4th Order

[39] The motion to set aside or vary my order of January 4, 2012 is brought under rule 59.06 on the basis of the subsequently discovered fact of the settlement agreement between the defendants to end adversity between them, under the court’s authority to impose consequences for non-disclosure in accordance with the decision in Aecon and under rule 60.12 to make such order as is just when the court’s order, in this case the protocol for conducting the neuropsychological examinations, was breached.

Rule 59.06 Motions: The Law

[40] Rule 59.06(2)(a) provides that parties have a right to move to vary or set aside an order on the ground of facts subsequently arising or discovered. This is the rule under which the motion before me is brought. Rule 59.06(2)(a) provides as follows:

(2) A party who seeks to,

(a) have an order set aside or varied on the ground ...of facts arising or discovered after it was made;

may make a motion in the proceeding for the relief claimed.

[41] This of course requires the court to determine if the fresh evidence of the subsequently discovered facts should be admitted in order that the court may reconsider its original decision. For fresh evidence to be admitted the evidence must not have been discoverable or available at the time of the original hearing by the exercise of reasonable diligence and the evidence, if available, would probably have changed the result.[^13] (There is also a narrow discretion to admit fresh evidence even if it could have been available at the original hearing to prevent a miscarriage of justice such as to avoid perpetuation of a fraud.[^14] There is however no suggestion of a fraud being perpetuated here.)

[42] Once the court admits the evidence of the subsequently discovered facts it may in its discretion make the order that would have appropriate at the original hearing had the subsequently discovered facts been known to the court at that time. In the context of this case, the question I must ask is whether assessments by two neuropsychologists would have been ordered had I known of the agreement between Orca Bay and Bertuzzi to end all adversity between them, to dismiss their crossclaims and to proportionately share any damages awarded by the court against either of them.

Application of the Rule 59.06 Test to the Discovery of the Settlement Agreement

[43] Clearly the agreement to end adversity and dismiss the crossclaims was not known to the plaintiffs or to the court on January 4,2012. The plaintiffs could not, even with reasonable diligence, have discovered the existence or substance of that agreement before January 23rd. Its existence and contents were known only to the defendants and to the third party Crawford. Those parties made a conscious and deliberate decision not to disclose the existence of the agreement to the plaintiffs either at the time it was signed some six months earlier or at the January 4th hearing, notwithstanding that the plaintiffs had requested disclosure of any Mary Carter or other agreement. Although the decision by the defendants to hide the existence of the agreement was intentional, it was as I found in my earlier reasons, a decision made in good faith, not with the intent to mislead, but with the honest, albeit mistaken, belief that they had no duty to disclose and conversely had a duty to protect the settlement privilege. While the plaintiffs suspected an agreement to remove Crawford from the action as a third party, neither the plaintiffs nor the court could have known that the agreement included the ending of adversity between the defendants and an agreement to dismiss the crossclaims against each other.

[44] Had the agreement been known to the court on January 4th would that have changed the results of the motion to order two neuropsychological assessments? The answer is a resounding and unequivocal yes.

Separate Medical Examinations on Behalf of Adverse Parties

[45] Under section 105(2) of the Courts of Justice Act[^15] the court may order a party to undergo “a” physical or mental examination by one or more health practitioners where the party’s physical or mental condition is in issue in the action. Although a first “defence medical examination” of a plaintiff is a matter of discretion, the court almost always allows such examination as of right[^16], provided that the practitioner chosen to conduct the examination has expertise to express an opinion on the medical condition put in issue by the plaintiff. Steve Moore is claiming significant damages, including loss of income arising from an inability to play professional hockey and a diminished capacity to earn any income from other employment as a result of impaired cognitive functions caused by a brain injury due to the actions of the defendants. As I determined on January 4th, a neuropsychologist is a person highly qualified to measure diminished cognitive functions and assess the impact of a brain injury. I would clearly have permitted a first neuropsychological examination.

[46] Section 105(4) of the Courts of Justice Act provides that the court “may” order further physical or mental examinations. Rule 33.02 provides that the court “may order a second examination or further examination on such terms respecting costs and other matters as are just.” Usually a second or subsequent examination is ordered where necessary to enable the defendants to “fairly investigate and call reasonable responding evidence at trial” [^17] and to “level the playing field” although a matching defence report to a plaintiff’s expert report is not always warranted.[^18] An examination by a second or subsequent health practitioner is typically warranted “only where a specific medical condition put in issue is beyond the scope of expertise of the physician who conducts the first or any previous examination on behalf of the defence”[^19] and where the first examiner has not subsumed the investigations and expertise of the additional experts.[^20] The moving party must provide evidence of why they seek the particular additional examinations and “such evidence must be clear and compelling.”[^21] A second examination “is not available where the examination is requested merely to corroborate the opinions of previous physicians.”[^22]

[47] It was on this basis that the plaintiffs consented to and I ordered an examination by a neurosurgeon as well as a neuropsychologist on behalf of Bertuzzi as each had different expertise and were examining different aspects of the medical condition put in issue by the plaintiff. The defendant Bertuzzi could not be said to have been overreaching given the different treating specialists and experts reporting on behalf of the plaintiffs.

[48] Clearly, however, examinations by two specialists in the same field, investigating the same condition put in issue by the plaintiff, such as two neuropsychologists, would violate this principle and would not be ordered in favour of the same defendant, particularly at the same time. When, then, can examinations by two experts of the same specialty be ordered at the same time on behalf of different defendants?

[49] The answer is when they are adverse in interest. As appropriately summarized by Thorburn J.:

Each defendant, adverse in interest and separately represented, is entitled to its own medical examination...”Adverse” is defined...as “having an opposing or contrary interest, concern or position.”[^23]

[50] Master Pope has similarly stated:

The case law is very clear that every defendant, adverse in interest and separately represented, is entitled to his or her own medical examination unless multiple examinations would cause the plaintiff unnecessary inconvenience or embarrassment or where further defence medicals would not serve the just and most expeditious or least expensive determination of the proceeding on the merits.[^24]

[51] Adverse interest has been defined as “a manifest adverse interest in one defendant as against another defendant” and the interest which is said to be adverse means “pecuniary interest, or any other substantial interest in the subject matter of the litigation.”[^25]

[52] Although dealing with a different issue, Master Haberman has stated: “He has not cross-claimed against Kline nor did Kline cross-claim against him. The two were therefore not adverse in interest...”[^26]

[53] In some cases separate examinations by an expert in the same field have been ordered on behalf of different defendants where two accidents contributed to the plaintiff’s injuries and each defendant was trying to establish that the other accident caused the injuries. For example in that situation Master Donkin stated: “The medical examination can yield not only evidence as to the present condition of the plaintiff, but evidence as to the cause or causes of the plaintiff’s condition and where those causes are a matter of contention between the defendants, then each defendant should have the right to a separate medical examination.”[^27]

[54] In my view adversity between defendants entitling each to a separate examination from a specialist in the same field is not restricted to situations where there are two accidents involving different defendants and the cause of the plaintiff’s damages are in contention as between the two accidents. Such adversity may also be found where there is but one cause of the plaintiff’s damages (for example a single accident or assault) and each defendant blames the other for causing the accident or assault and as a result crossclaims against the other for contribution and indemnity. In this case each defendant is adverse in interest and has a separate interest to protect.[^28]

Should My Order of January 4th be Set Aside or Varied?

[55] The latter example is exactly the situation that was presented to me on January 4th. Although Bertuzzi and Orca Bay were united in opposing the extent of the plaintiff’s damages, and thus not adverse on the issue of damages, they each blamed the other for instigating the assault, had crossclaimed against the other for contribution and indemnity and were thus adverse in interest on the issue of liability. As far as I was aware that adversity and the crossclaims continued in existence on January 4th and I granted two neuropsychological examinations on the basis that the defendants had separate interests to protect.

[56] That all changed in July 2011 when Bertuzzi, Orca Bay and Crawford signed Minutes of Settlement that recited that those parties agreed to “settle issues of liability” as between them. The agreement provided that Bertuzzi and Orca Bay would not pursue their crossclaims against the other and that they would release each other from liability. (Similar provisions were provided as between Bertuzzi and Crawford with respect to the third party claim.) They all agreed that any monetary award at trial would be apportioned and paid by Bertuzzi, Orca Bay and Crawford in specified agreed percentages regardless of any finding or apportionment of liability made at trial or in any settlement.

[57] Of course the existence of such agreement was not known at the January 4, 2012 hearing when I awarded each defendant separate neuropsychological assessments based on their separate interests to protect as a result of the crossclaims and adversity of interest on liability, despite their unity of interest on damages. It was not until January 23rd that the defendants announced that they wished the crossclaims to be dismissed and passed up the agreement for the court’s inspection.

[58] At that point in time it became clear that any vestige of adversity as between Bertuzzi and Orca Bay had disappeared months earlier. Now Bertuzzi and Orca Bay were united on issues of damages and on issues of liability as against the defendant. Since they had agreed on how to apportion liability as between themselves no matter what was determined at trial, there were no longer separate interests to protect. It could be said that Bertuzzi and Orca Bay were now acting as a single team, albeit with separate lawyers, against the plaintiffs. There is absolutely no doubt in my mind that if this subsequently discovered fact had been made known on January 4th it “would probably have changed the result”.

[59] The fact that both defendants were now acting as a single team is further highlighted by the fact that it was Mr. Adair, the lawyer for Bertuzzi who brought a single motion on January 4th to appoint the two neuropsychologists on behalf of both defendants.

[60] Given the newly discovered absence of any adversity or separate interests to protect as between Bertuzzi and Orca Bay, and the fact that both experts were investigating the same medical condition and had the same specialization and expertise, I have reconsidered my order made on January 4th pursuant to rule 59.06 and make the order that should have been made at that time. The appropriate order is to permit a single neuropsychological examination on behalf of both (or one of) the defendants. To do otherwise in these circumstances would amount to permitting the same “team” to retain a second neuropsychologist to examine the plaintiff solely to corroborate the opinion of the first.

[61] As a result I would vary my order of January 4, 2012 to permit only a single neuropsychological examination.

Alternative Consequences of Failure to Disclose

[62] Mr. Danson argues that does not go far enough. It does not provide the “consequences of the most serious nature” that the court of appeal in Aecon v. Brampton said must flow from a failure to comply with the parties’ obligation of “immediate disclosure”. He argues that only by setting aside my entire order and refusing any neuropsychological examinations would the court, in the words of the court of appeal in Aecon, be “able to enforce and control its own process and ensure that justice is done between and among the parties.” He submits that to do otherwise would allow the defendants to avoid the consequences from the breach of their disclosure obligations other than the court ordering what would have been ordered on January 4th had the defendant been in compliance.

[63] Mr. Danson’s argument has merit. I agree however with Mr. Adair that to nullify both neuropsychologists’ reports would tear the guts out of their defence. A key issue in this action is the extent of Mr. Moore’s cognitive impairments and his ability to engage in meaningful employment, matters within the expertise of a neuropsychologist. Without a neuropsychological assessment the defendants would be handcuffed from contesting the extent of Mr. Moore’s claims and defending against those claims at trial, particularly given the plaintiffs’ own expert reports. It would not create a level playing field, but would tilt the balance substantially in favour of the plaintiffs. I would add that the defendants have sought defence medical assessments only from neuropsychologists (now reduced to one neuropsychologist) and a neurosurgeon. This could not be considered overreaching.

[64] I do not however agree with Mr. Adair that removing even one of the neuropsychological assessments would tear the heart out of their defence. They would still, despite their non-compliance with their disclosure obligations, have reports from a highly regarded neuropsychologist as well as highly regarded neurosurgeon to contest the plaintiffs’ claims. The defendants refer me to numerous reports or consultations from the plaintiff’s treating and expert specialists and suggest the playing field would not be level if I removed one of the neuropsychological reports. I have not in this decision determined that the defendants are not entitled to examinations by other specialists in different fields if appropriate (although that may be barred by the time limits set for delivery of expert reports in earlier court orders and by rule 53.03.) What I have ordered is that they cannot have two neuropsychologists.

[65] While perhaps restricting the plaintiffs’ remedy to what the correct order would have been on January 4th had there been full disclosure does not impose upon the defendants “consequences of the most serious nature”, I am of the view that given the pending trial date, the impossibility of obtaining a fresh report at this time that could avoid the consequences of the practice effect (even if permitted) and the creation of a playing field tilted dramatically in favour of the plaintiffs, the remedy suggested by Mr. Danson would result in a consequence totally disproportionate to the failure to disclose. It is particularly disproportionate because the decision not to disclose, while deliberate, was made honestly and in good faith, but with a mistaken view by the defendants of their obligations at law, which arguably had to some extent been unsettled in the circumstances of this case.

[66] I also disagree with Mr. Adair that the sole consequence should be the imposition on the defendants of the plaintiffs’ full indemnity costs of this motion. That consequence fails to take into account that their non-disclosure, notwithstanding that it was made in good faith, resulted in the defendants getting more than they were entitled to on January 4th had the agreement been disclosed. Surely they cannot benefit by getting two examinations when the proper disposition of the motion made with full disclosure would have been one examination. That said, I do agree that the plaintiffs should have its full indemnity costs of the motion as “consequences of the most serious nature”, but in addition to making the correct order as to the number of neuropsychologists. It may be that full indemnity costs are also in order for that part of the January 4th motion dealing with the neuropsychological examinations, but those costs have yet to be determined.

Does the Variation of my Order Amount to a Ruling on the Admissibility of Evidence at Trial?

[67] Mr. Adair also argues that both neuropsychologists have now completed their assessments and delivered their reports and by my making this order I would be making a ruling on admissibility of an expert report, a matter that should be reserved to the trial judge. He refers to the case of Harrop v. Harrop[^29] where a motions judge declined to exclude from the evidence at trial a medical report that was alleged to be unscientific, unreliable, prepared by a biased and unqualified expert and where the prejudicial value of the report was said to outweigh any probative value. He said that the trial judge is the gatekeeper on the admissibility of expert evidence and is the sole person vested with authority to rule thereon. As such, he concluded that a motions judge has no jurisdiction to rule that expert evidence may not be called at trial. The decision of the motions judge was upheld by the Divisional Court and subsequently by the Court of Appeal who set out a policy basis for the trial judge making that determination where the decision can be made with a full context and as part of the trial process.

[68] The problem with that argument is that it has no application to the matter before me. I am on this motion not deciding whether the second neuropsychological report is admissible at trial as an expert report. I am not determining if it is a proper expert report or if the second neuropsychologist is a qualified expert. I always had the authority on January 4th to refuse the motion for two neuropsychological assessments and this would have affected the evidence available for trial. What I am doing now is varying my order of January 4, 2012 such that only one neuropsychological assessment is ordered under section 105 of the Courts of Justice Act. As such the second neuropsychological assessment was not conducted under authority of section 105 and any report from an unauthorized assessment cannot be considered as a section 105 report and is in effect null and void. I am not ruling that the second neuropsychological assessment is inadmissible. I am ruling that there is no authorized second neuropsychological report upon which the trial judge can make any ruling as to admissibility.

Consequences of Breach of Court Ordered Testing Protocol

[69] Finally there is the issue of the conduct of the assessments contrary to the protocol suggested by the defendants and their experts and incorporated as a term of my order. Dr. McCrae says that he and Dr. Iverson did not believe that the proposal as to procedure suggested to Mr. Jordan would be inflexible and binding as long as the assessments were properly conducted in a respectful and professional manner and within reasonable and normal limits for a neuropsychological examination. They did not know that the protocol was made part of the order or that the court was concerned with the precise manner in which the examinations were to be conducted other than permitting two neuropsychological assessments with separate clinical interviews and joint psychometric testing. The experts’ understanding and belief however cannot be a justification for the failure of the defendants’ lawyers to send to the experts a copy of my complete endorsement and not just the formal order.

[70] I do not know whether the neuropsychologists would have conducted the examinations any differently if they were aware of the term of the order respecting the conduct of the testing. Even more importantly I cannot say whether I would have refused the order on January 4th had I known for example that the interviews would take longer than 90 minutes or that further follow up questions would have been asked by the first expert after the second expert conducted part of his interview or that the interviews would be interspersed with testing or that the psychometric testing would be conducted not by an independent psychometrist but by the two neuropsychologists themselves. Alternatively if that had been presented as the proposed protocol I cannot say it would not have been approved. I have no evidence from the plaintiffs’ expert that the method employed by the neuropsychologists was improper or would result in an unreliable assessment or whether the neuropsychologists lost their independence by use of this procedure.

[71] The defendant’s neuropsychologist of course can be cross-examined at trial on the manner in which the examinations were conducted and the plaintiffs are free to adduce expert evidence as to the propriety of the procedure. I do not know if there was any exchange of information between Dr. McCrae and Dr. Iverson during the two days as questions at Dr. McCrae’s cross-examination were refused as being outside the issues on this motion and contrary to an agreement between counsel. If the process by which the examinations were conducted has resulted in a report that is not reliable and independent, then that is a matter to be determined on all the evidence by the trial judge who will be in the best position to determine issues of admissibility and weight with respect to the surviving neuropsychological report.

[72] The irony of course is that the protocol was put into place to permit two neuropsychologists to conduct assessments in a manner that would avoid the practice effect and allow for two independent assessments. The protocol never would have been necessary if there had been full disclosure of the settlement agreement and only a single neuropsychological examination permitted.

[73] Rule 60.12 provides:

Where a party fails to comply with an interlocutory order, the court may, in addition to any other sanction provided by these rules...

(b) ...strike out the party’s defence; or

(c) make such other order as is just.

[74] In my view the appropriate remedy for the breach in all the circumstances has already been imposed for the failure to disclose, namely the defendants are restricted to a single neuropsychological report and the payment of full indemnity costs. No other sanction is necessary, appropriate or proportionate to the nature of the breach. As noted, it is not for me to decide as a master sitting in motions court, whether the surviving neuropsychological report is reliable and independent or whether it should be admitted as an expert report at trial.

Determining Which Report Survives

[75] The last issue is how to craft the remedy given that I have ordered that there be only one neuropsychological assessment under section 105 of the Courts of Justice Act, yet two neuropsychological reports have been prepared and served in accordance with the January 4th order before it was varied by the order made today. In my view the defendants should have the first option of choosing which report survives, but it must be before the pre-trial conference so that the pre-trial judge can be directed to the surviving report. This involves a very narrow window as the pre-trial is scheduled for July 3 and 4, 2012 immediately after the long weekend. If the defendants are unable or unwilling to make the choice, the surviving report will be the first report served, and if served together the plaintiffs shall choose the surviving report.

Order

[76] I hereby order as follows:

(1) My order of January 4, 2012 requiring the plaintiff Steve Moore to attend for independent neuropsychological testing to be conducted by Dr. Grant Iverson and Dr. Michael McCrae on January 9 and 10, 2012 is varied to read: “The plaintiff Steve Moore shall attend for independent neuropsychological testing under section 105 of the Courts of Justice Act to be conducted by one of Dr. Grant Iverson or Dr. Michael McCrae on January 9 and 10, 2012.”

(2) The defendants shall jointly inform the plaintiffs by the earlier of seven days after release of these reasons and 15 minutes before the start of the pre-trial conference which of Dr. Iverson or Dr. McRae has conducted the neuropsychological assessment and delivered a report under section 105 of the Courts of Justice Act in accordance with this order.

(3) If the defendants fail to inform the plaintiffs of their choice in accordance with this order, then the report deemed to be delivered under section 105 of the Courts of Justice Act shall be the first report that was served on the plaintiffs, and if served together, the plaintiffs shall immediately inform the defendants which report shall be the section 105 report.

(4) The report of Dr. Iverson or Dr. McCrae that is not chosen in accordance with this order shall be deemed not to be a report prepared pursuant to an examination under section 105 of the Courts of Justice Act, shall be null and void and of no effect and shall not be used, tendered in evidence or referred to at any time by any party in the course of these proceedings. Nothing in this order shall restrict the right of any party to refer to the examination by both neuropsychologists and the method that they were conducted for purposes of testing the admissibility or weight of the report that has been chosen as the report delivered under section 105 of the Courts of Justice Act pursuant to this order.

[77] The plaintiffs shall deliver their costs outline and any brief submissions not to exceed four pages within 14 days of release of these reasons and the defendants may deliver any responding submissions not to exceed four pages each within 10 days thereafter.

Master R. Dash

DATE RELEASED: June 28, 2012

[^1]: Reported as Moore v. Bertuzzi, 2012 ONSC 597, [2012] O.J. No. 665.

[^2]: Crawford as third party did not defend the main action as he was entitled to do. The plaintiffs therefore had no lis with Crawford.

[^3]: The practice effect occurs when a second set of a testing takes place shortly after the first and the plaintiff, who has now become accustomed to (or has practised) the tests, obtains a better score in terms of functioning than might otherwise be the case, thus skewering the results in favour of a higher level of functioning.

[^4]: Moore v. Bertuzzi, 2012 ONSC 1350, [2012] O.J. No. 872

[^5]: Mr. Danson had actually been told three days earlier (on January 20th) that a request would be made on January 23rd to dismiss the crossclaims.

[^6]: Moore v. Bertuzzi, 2012 ONSC 597, [2012] O.J. No. 665 at para. 21

[^7]: Moore v. Bertuzzi, 2012 ONSC 597, [2012] O.J. No. 665 at paras. 82 to 84

[^8]: Moore v. Bertuzzi, 2012 ONSC 1350, [2012] O.J. No. 872 at paras. 3-5 and 8

[^9]: Aecon Buildings, a Division of Aecon Construction Group Inc. v. Brampton (City), 2010 ONCA 898, [2010] O.J. No. 5630 (C.A.) at para. 16

[^10]: Moore v. Bertuzzi, 2012 ONSC 3248, [2012] O.J. No. 2485

[^11]: Ibid, para. 99.

[^12]: The formal order however was not entered until January 26th, 19 days after after Dr. McCrae’s entry into Canada to conduct the examination.

[^13]: Wong v. Adler, [2004] O.J. No 3385, 10 C.P.C. (6th) 58 (SCJ – Master) at p. 61.

[^14]: Wong v. Adler, supra at p. 62-64

[^15]: R.S.O. 1990, Chap C.43 as amended

[^16]: Anderson v. 45859 Ontario Ltd., 2010 ONSC 6585, [2010] O.J. No. 6041 (SCJ – Master) at para.29

[^17]: Suchan v. Casella (2006), 2006 20844 (ON SC), 81 O.R. (3d) 615 (SCJ – Master) at para. 8; Jones v. Spencer, [2005] O.J. No. 1539 (SCJ) at para.14; Marcoccia v. Gill, [2006] O.J. No. 4972 (SCJ) at para. 28

[^18]: Suchan v. Casella, supra at para. 7; Nelson v. Thiruchelvam, 2005 4849 (ON SC), [2005] O.J. No. 743 (SCJ – Master) at para. 21

[^19]: Suchan v. Casella, supra at para. 8; Jones v. Spencer, supra, at para. 14

[^20]: Suchan v. Casella, supra at para. 10

[^21]: Zia v. Yasir, 2011 ONSC 2990, [2011] O.J. No. 2303 (SCJ – Master) at para. 11; Nelson v. Thiruchelvam, supra, at para. 21

[^22]: Marcoccia v. Gill, supra, at para. 28

[^23]: Marcoccia v. Gill, supra, at para. 30

[^24]: Anderson v. 45859 Ontario Ltd., supra at para. 30. Master Peterson came to a similar conclusion in Huppman v. Roberts, [1998] O.J. No. 4942 (SCJ – Master) at para. 8.

[^25]: Menzies v. McLeod, (1915) 1915 419 (ON SC), O.J. No. 128 (HCJ) at para 10, as adopted in Aviaco International Leasing Inc. v. Boeing Canada Inc., [2000] O.J. No. 4401 (SCJ) at para 7 and in Kapileshwar v. Sivarajah, [2008] O.J. No. 4501 (SCJ – Master) at para. 8

[^26]: Mpampas v. Gritti, [2008] O.J. No. 2209 (SCJ – Maser) at para.93

[^27]: Cairns v. Schofield, [1983] O.J. No. 2158 (HCJ – Master) at para.9. Master Sandler came to a similar conclusion in Kathpalia v. Acker, [1978] O.J. No. 2317 (HCJ – Master) at para.17-18 as did Master Haberman in Nelson v. Thiruchelvam, supra at para. 11.

[^28]: Although not relevant to the matter before me, I do not wish to leave the impression that every time two defendants crossclaim against the other they will be entitled to separate defence medical examinations from health care professionals in the same specialty. True adversity is not found in the pleadings alone, but is to be found by examining the state of the record as a whole: Kapileshwar v. Sivarajah, supra at para. 7. It will be for the motions court to determine if there is in fact adversity between the parties and if they have separate interests to protect.

[^29]: Harrop (Litigation Guardian of) v. Harrop, [2008] O.J. No. 5993 (SCJ), affirmed [2009] O.J. No. 3164 (Div. Ct.), affirmed 2010 ONCA 390, [2010] O.J. No. 2300 (C.A.)