SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-08-00354100
DATE: 20120626

RE: Aaliyah Jones, a minor, by her Litigation Guardian, Andrew Jones (plaintiff) v. Ashprior Charitable Foundation and DMS Property Management Ltd. (defendants) and Verna Jones (third party)

BEFORE: Mr. Justice Kenneth L. Campbell

COUNSEL:
Kevin Wolf and Michael Gayed, for the plaintiff

Jason Rabin, for the defendants

DATE HEARD: April 5, 2012

REASONS FOR DECISION

1. Introduction

[ 1 ] On May 26, 2007, the young plaintiff, Aaliyah Jones, fell from the window of her fifth floor apartment and sustained significant injuries. She was five years old at the time. By her Litigation Guardian, her uncle Andrew Jones, she commenced an action against the two defendants, Ashprior Charitable Foundation, the owner of the apartment building, and DMS Property Management Ltd., the manager of the apartment building. In her Statement of Claim, the plaintiff alleged that, as a result of the fall, she sustained “severe internal and external injuries” including, among other things, a “closed head injury” and resulting “cognitive dysfunction.” The defendants subsequently commenced third party proceedings against the plaintiff’s mother, Verna Jones.

[ 2 ] In September of 2009, the parties agreed, with some qualification, that the action was ready for trial and filed their Trial Certification. The trial was originally scheduled to commence on May 9, 2011, but has now been adjourned to the week of March 18, 2013.

[ 3 ] After the matter was set down for trial, the defendants sought leave to bring two separate motions seeking orders compelling the plaintiff and her mother to participate in further medical examinations and expert assessments. Both motions were heard by Master Sproat. The first motion was dismissed on March 30, 2010. There was no appeal against this decision. On the second motion, decided on September 16, 2011, the defendants were more successful. In her Endorsement, Master Sproat: (1) granted the defendants leave to bring the motion; (2) ordered the plaintiff to attend a defence neuropsychological examination with Dr. McFadden; and (3) ordered the plaintiff’s mother to cooperate in that examination by completing a questionnaire in connection with Dr. McFadden’s assessment and to submit to an interview by Dr. McFadden. An additional request by the defendant, for an order requiring the plaintiff to make herself available for a defence in-home future care cost assessment by a registered nurse, Sandra Vellone, was denied and the motion was otherwise dismissed.

[ 4 ] Both the plaintiff and the defendants now appeal against this September 16, 2011 decision by Master Sproat. The issues on these appeals all turn on whether Master Sproat was correct in granting and/or declining the orders sought by the defendants on their second motion.

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Kenneth L. Campbell J.

DATE: June 26, 2012