Court File and Parties

Court File No.: CV-08-090228-00
Date: 20120621
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Adam Sherwood, Plaintiff

AND:
Zenaida Paulino Sanchez and Dominga Sanchez, Defendants

BEFORE: Justice M. Edwards

COUNSEL:
Adam D. Romain, for the Plaintiff
James Shafman, for the Defendants

HEARD: June 19, 2012

ENDORSEMENT

[ 1 ] The defendants in this matter seek an order compelling the plaintiff to attend a psychiatric defence medical with Dr. Wayne Furlong.

[ 2 ] The appointment with Dr. Furlong is scheduled for September 25, 2012. I am advised by counsel that this action has proceeded through examinations for discovery, and that the plaintiff has already submitted to a defence medical with an orthopaedic specialist and a psychologist. Counsel for the defendants suggests that the examination by the psychologist, Dr. Nicholson, was an examination in the form of a neuropsychological examination and did not take the place of a psychiatric examination.

[ 3 ] The examinations by the orthopaedic specialist and Dr. Nicholson were done on a consensual basis. That said, however, the correspondence between plaintiff’s counsel and the defendants counsel, leads this court to conclude that the plaintiff’s counsel was agreeable to allowing his client to be seen by either a psychiatrist or a neuropsychologist but not both . After the option of one or the other of these examinations was put to defence counsel correspondence was sent by defence counsel to plaintiff’s counsel on September 13, 2011, advising of the appointment with Dr. Nicholson. The letter from defence counsel confirming the appointment with Dr. Nicholson did not dispute the option of either a psychiatric examination, or a neuropsychological examination that had been proposed by plaintiff’s counsel. It was only after Dr. Nicholson had submitted his report that defence counsel then returned to his earlier request that the plaintiff attend a psychiatric defence medical with Dr. Furlong. In support of his position in this regard defence counsel noted various comments made by Dr. Nicholson that suggested that the plaintiff had psychiatric issues which were outside his area of expertise.

[ 4 ] The statement of claim describes the various injuries allegedly suffered by the plaintiff which include:

“…permanent serious impairment of an important physical, mental and psychological functions…” (my emphasis)

[ 5 ] What is particularly noteworthy on the facts of the motion before this court is the absence of any medical evidence from the plaintiff of any ongoing treatment with a psychiatrist or any indication on the part of plaintiff’s counsel to have the plaintiff seen for the purposes of a medical legal assessment with a psychiatrist. Furthermore, Dr. Nicholson did not in his report recommend that the plaintiff be seen by a psychiatrist. In the absence of evidence suggesting the need for the plaintiff to be seen by a psychiatrist the mere allegation in the statement of claim that the plaintiff suffered an injury causing an injury to mental and psychological functions does not trigger the need for a psychiatric defence medical.

[ 6 ] The defendants have exercised the option that was offered to them by plaintiff’s counsel to have the plaintiff seen for the purposes of a defence medical either with a neuropsychologist or a psychiatrist but not both.

[ 7 ] If the facts of this case were such that the plaintiff was either being treated by a psychiatrist and/or plaintiff’s counsel was having the plaintiff seen by a psychiatrist for the purpose of a medical/legal assessment then this court would have no hesitation in ordering that the plaintiff attend a defence medical with a psychiatrist like Dr. Furlong. Those are not, however, the facts and this court can see no reason to depart from the implicit agreement between counsel that the defendants had exercised their option to have the plaintiff seen by a neuropsychologist and not a psychiatrist. It may very well be that as this matter progresses the plaintiff will in fact either be treated by a psychiatrist or alternatively be seen by a psychiatrist for the purposes of a medical/legal assessment. The plaintiff’s counsel will have to revisit whether a further request for a defence medical with Dr. Furlong is then appropriate.

[ 8 ] The motion is dismissed.

[ 9 ]Counsel provided oral submissions with respect to costs. The plaintiff’s counsel submitted that in the event that he was successful on a partial indemnity basis he would be seeking $5,000.00 and on a substantial indemnity $8,000.00. Counsel for the defendants indicated if he was successful with respect to his motion he would expect costs in order of $2,500.00. After completion of my reasons I have opened the sealed envelope containing the offer to settle of the plaintiff, which agreed to a disposition that would have resulted in the motion being abandoned on a without costs basis, and if the offer was not accepted by June 12 th the plaintiff’s would be seeking costs on a substantial indemnity basis.

[ 10 ] Without in any way criticizing plaintiff’s counsel for the preparation involved in the drafting of a twenty page factum and a case brief of twenty three cases, this motion was relatively uncomplicated and the losing party could reasonably expect to pay costs that I fix in the amount of $3,500.00 plus HST plus disbursements of $333.05.

Justice M. Edwards

Released: June 21, 2012