SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-09-14090SR
MOTION HEARD: 20120827
RE: Paul Kelly, Plaintiff
AND:
Royal & SunAlliance Insurance Company of Canada, Defendant
BEFORE: Master Lou Ann M. Pope
COUNSEL:
William F. Wright, for the Plaintiff
Uliana L. Gic and Geoff Keating, student at law, for the Defendant
HEARD: August 27, 2012
REASONS FOR DECISION
[ 1 ] After argument, I am satisfied that the defendant arranged for and conducted a physical medical examination of the plaintiff by Dr. Emilie Newell on March 25, 2011, pursuant to section 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[ 2 ] I am also satisfied that Dr. Newell held herself out to have a specialty in physical medicine and rehabilitation, more commonly known as a physiatrist. However, prior to delivery of a report, Dr. Newell advised defence counsel that her specialty fellowship had been withdrawn due to her failure to submit documentation supporting her continuing professional education activities. For unexplained reasons, this fact is not borne out in the information provided on her profile set out in the website of The College of Physicians and Surgeons of Ontario.
[ 3 ] I am further satisfied that it was the defendant’s intention to obtain a physiatrist’s opinion and report regarding the plaintiff’s complaints.
[ 4 ] However, notwithstanding the oversight on the part of either the defendant or Dr. Newell, or both, the fact is that at the time of the examination Dr. Newell met the definition of “health practitioner” as defined in section 105(1) of the Act as a “person licensed to practise medicine . . . in Ontario, . . .” Further, the fact is that the medical examination was conducted. As such, in my view, Dr. Newell was required to prepare a written report and to provide that report to the defendant pursuant to rule 33.06(1) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. Thereafter, and pursuant to subrule 33.06(2), the defendant was required to serve the report on the plaintiff.
[ 5 ] The defendant has not provided any authority in law for this court to disregard the fact that a medical examination was conducted and to excuse Dr. Newell from her obligations in law.
[ 6 ] For the above reasons, the defendant’s motion must necessarily be considered to be a request for a further medical examination pursuant to section 105(4) of the Act.
[ 7 ] I am satisfied on the evidence and the pleadings that the defendant is entitled to a physiatry medical examination but only after the defendant serves the plaintiff with Dr. Newell’s medical report.
[ 8 ] However, having considered the case of Bonello v. Taylor , 2010 ONSC 5723 (S.C.J.), provided by defence counsel, the plaintiff’s evidence that due to his injuries he prefers that the physiatry examination take place in Windsor and further his evidence that there are four physiatrists who have medical practices in Windsor, in my view, convenience favours the plaintiff. Therefore, the physiatry examination shall be conducted in Windsor.
[ 9 ] In conclusion, the following orders are issued:
Dr. Newell shall prepare a written report in compliance with rule 33.06(1) and forthwith provide the report to the defendant;
The defendant shall thereafter comply with rule 33.06(2) by delivery of Dr. Newell’s report to the plaintiff;
After the completion of the above orders, the defendant shall be entitled to a physiatry medical examination to be conducted in Windsor or Essex County by either Dr. Asha Bhardwaj, Dr. B. K. Kim, Dr. Bradley Burke, Dr. Patrick Charron, Dr. Nathania Liem, Dr. Yuri Marchuk or Dr. Montserrat Torne-Perez.
[ 10 ] The plaintiff shall be entitled to his costs of this motion on a partial indemnity basis. If the parties do not agree on the quantum of costs, the plaintiff may serve and file a costs outline and short submissions of no more than two pages double spaced within seven days of the release of this decision. The defendant may, within seven days thereafter, serve and file responding costs submissions of no more than two pages double spaced.
Original signed “Master Pope”
Master Lou Ann M. Pope
Date: August 28, 2012