COURT FILE NO.: 07-CV-327585PD 2

MOTION HEARD: July 3, 2012

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Laavanyan Sangaralingam v. Damesh Sinnathurai, Joseph Ciampaglia, Lisi Mechanical Contractor Ltd. and Kingsway General Insurance Company

BEFORE: Master Thomas Hawkins

COUNSEL: Matthew Miller, for moving defendants Joseph Ciampaglia and Lisi Mechanical Contractor Ltd. Fax No.: 416-596-0952

Michael A. Katzman for responding plaintiff Fax No.: 416-628-2224

No one for other defendants

REASONS FOR DECISION

[1] At the conclusion of argument of this motion on July 3, 2012, I made an order disposing of this motion and indicated that reasons for my decision would be released later. These are the reasons for my decision.

[2] The moving defendants Joseph Ciampaglia (“Ciampaglia”) and Lisi Mechanical Contractor Ltd. (“Lisi”) seek several orders. First, Ciampaglia and Lisi seek an order dismissing this action for failure of the plaintiff to pay costs of $16,998.89 (plus interest) of a successful appeal awarded to Ciampaglia and Lisi and payable by the plaintiff by order of the Divisional Court made March 21, 2012.

[3] Rule 60.12 is relevant to this part of the motion by Ciampaglia and Lisi. It provides as follows.

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

(a) stay the party’s proceeding;

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

(c) make any other order as is just.

[4] In late 2008 the plaintiff settled a claim for income replacement benefits against the statutory third party Nordic Insurance Company of Canada. At that time the plaintiff received the net amount of $175,000.

[5] In these circumstances, counsel for Campaglia and Lisi submits that the plaintiff has the means to pay the costs which the Divisional Court awarded to Ciampaglia and Lisi and has failed to do so.

[6] The plaintiff was injured in two motor vehicle accidents which occurred on March 5, 2005 and June 15, 2007. On both occasions the plaintiff was a passenger in a motor vehicle involved in an accident.

[7] The plaintiff has been unemployed almost the entire time since these accidents. He acknowledges receipt of the settlement funds but says he has not paid the Divisional Court costs award because he is and has been impecunious.

[8] The plaintiff used approximately $50,000 of the settlement funds to retire debts owed to family members who had loaned him money because he had no income (or very little income) following the two accidents. He spent $60,000 to $65,000 by paying support funds to his family in Sri Lanka and to pay for his sister’s wedding in India. He used the balance of the settlement funds to pay his personal living expenses.

[9] At the time this motion was argued the plaintiff was living in a house in Scarborough, Ontario owned by his older sister and his brother-in-law. He has agreed to pay his older sister and brother-in-law $700 per month for room and board. He is several months behind in room and board payments to his older sister and brother-in-law. He describes his present home situation as awkward and critical because of his inability to pay room and board to his older sister and brother-in-law.

[10] In addition to what he owes his older sister and brother-in-law, he has other debts of approximately $24,000. He has no financial means of support.

[11] On this evidentiary record the plaintiff has established that he is indeed impecunious. That being so, the sanction of dismissal of the plaintiff’s action is not appropriate. I therefore decline to do so.

[12] Ciampaglia and Lisi also seek the sanction of an order suspending the plaintiff’s claim for pre-judgment interest from March 21, 2011 until payment of the costs awarded by the Divisional Court. Rule 60.12 (c) (“such other order as is just”) is here relevant.

[13] I decline to impose this sanction because the plaintiff is impecunious and because the costs award made by the Divisional Court includes post award interest until that costs award is paid. If the plaintiff is successful with either of his actions brought following the two accidents, Ciampaglia and Lisi will be paid their costs together with post award interest.

[14] Next Ciampaglia and Lisi seek an order dismissing this action for failure of the plaintiff to comply with the order of Haberman M. dated November 18, 2011. At that time Haberman M. order the plaintiff within 30 days to serve an affidavit of documents and to use his best efforts to answer all outstanding undertakings given on his examination for discovery.

[15] Since the November 18, 2011 order is an interlocutory one, rule 60.12 is relevant once again.

[16] After this motion was brought plaintiff’s counsel wrote defence counsel answering all but one or two of the outstanding undertakings and advised that he was working on answering the remaining undertakings. This part of the motion by Ciampaglia and Lisi was not the subject of any oral argument before me. I assume that counsel for Ciampaglia and Lisi is satisfied, at least for now, with the response from plaintiff’s counsel. I therefore decline to impose any sanction for non-compliance with the November 18, 2011 order of Haberman M.

[17] Next Ciampaglia and Lisi seek an order that the plaintiff produce the entire accident benefits file respecting his second accident, that is the accident of June 15, 2007. As I have said, the plaintiff commenced a second action as a result of that accident.

[18] Plaintiff’s counsel objects that the plaintiff was not asked to produce the accident benefits file from the second accident when he was examined for discovery in this action, and in this motion Ciampaglia and Lisi do not expressly seek an order that the plaintiff serve a further and better affidavit of documents. That is not a complete answer to this part of the present motion.

[19] I have read the statements of claim in both actions. The description of the injuries which the plaintiff alleges he suffered in each accident and the nature of the financial losses or expenses he alleges he suffered is virtually identical in each action. That being so, it seems to me that at least some of the documents in the accident benefits file respecting the second accident are relevant to the issues of what injuries the plaintiff suffered in each accident, what financial losses and expenses he actually suffered and to what extent the plaintiff has already received compensation.

[20] I decline to order that the plaintiff produce the entire accident benefits file from the second accident. I do not know what is in that file. It may well contain documents that are not relevant to any issue in this action. That being so, I give the plaintiff the following choice.

[21] If the plaintiff agrees to produce the entire accident benefits file from his second accident within 30 days of the final disposition of this motion, that will dispose of this part of the present motion. If the plaintiff declines so to agree, I direct him within 30 days to review the contents of the accident benefits file from his second accident and to serve within 30 days a supplementary affidavit of documents listing in Schedule A those documents found in that accident benefits file that are relevant to one or more issues in this action.

[22] Lastly, Ciampaglia and Lisi seek an order that the plaintiff attend two independent medical examinations or IMEs, one by Dr. Lorraine McFadden, a neuropsychologist, and a second one by Dr. Robert Notkin, a psychiatrist.

[23] Plaintiff’s counsel resists this part of the present motion as well. He submits that Ciampaglia and Lisi have not shown that any more defence IMEs are necessary and why the option of having a defence expert review the medical records on the plaintiff (of which there are many) and prepare a report is not adequate.

[24] The evidence before me is as follows. The plaintiff is claiming damages of $2,000,000 in this action alone as well as other relief.

[25] At the request of his solicitor, the plaintiff has been examined by five different medical expert’s including a neuropsychologist and a psychiatrist who have prepared nine expert’s reports. He has also been examined by one defence medical expert, namely Dr. Adrian Upton, a clinical neurologist.

[26] In an affidavit filed in response to this motion, the plaintiff makes no reference to defence IMEs. He does not claim that the proposed IMEs will cause him any stress or would otherwise result in hardship for him.

[27] Plaintiff’s counsel has not undertaken should this part of the present motion be dismissed to refrain from submitting to the trier of fact that a medical expert who has actually examined the plaintiff has an advantage over an expert who has simply reviewed the medical records on the plaintiff but not directly examined him.

[28] A number of cases on the subject of when additional defence IMEs should be ordered have stressed that the court should endeavour to create a level playing field between plaintiff and defendant.

[29] In a similar vein, D.M. Brown J. said the following in Bonello v. Taylor, 2010 ONSC 5723 at paragraph 16.

“… I would venture that trial fairness should operate as the guiding principle in this area, so if the plaintiff has decided that expert evidence from one specialty based on an examination of the plaintiff is relevant to the adjudication of her claim at trial, courts should be loathe to deny the defence a fair opportunity to respond with expert evidence from the same specialty based on an assessment of the plaintiff. Ordering further examinations may be just where they are necessary to enable the defendant fairly to investigate and call reasonable responding evidence at trial; [endnotes omitted]

[30] As I have said, the plaintiff has been examined by a neuropsychologist and a psychiatrist. In my view the defence (Ciampaglia and Lisi) should be given a fair opportunity to respond with expert evidence from the same specialties, namely Dr. McFadden and Dr. Notkin, based on an assessment of the plaintiff. So ordered.

[31] Plaintiff’s counsel submitted that since Dr. Upton has already examined the plaintiff, that is all that Ciampaglia and Lisi need. I disagree. Dr. Upton is a clinical neurologist, not a neuropsychologist or a psychiatrist. On the evidence before me, these are separate and distinct branches of medicine. The plaintiff’s experts include a neurologist, a neuropsychologist and a psychiatrist.

[32] If I ordered that the plaintiff be examined by Dr. McFadden, as I have, the plaintiff’s solicitor proposed that Dr. McFadden be provided with Dr. Findlayson’s raw test data and Dr. McFadden in turn provide her raw test data to Dr. Findlayson. So ordered.

[33] Further, given the plaintiff’s financial circumstances, I order that Ciampaglia and Lisi pay the plaintiff’s reasonable travel expenses to attend and return home from these two defence IMEs.

[34] Ciampaglia and Lisi also asked that I made an order timetabling remaining pre-trial steps in this action. Some time has passed since this motion was argued. The timetable situation may have changed since July 3, 2012. If a timetable order is still necessary, either side may write me requesting a telephone case conference at which I will make a timetable order in consultation with all counsel.

[35] Success on this motion has been divided such that the appropriate order as to costs is an order that there be no costs of this motion.

(original signed)

Master Thomas Hawkins

DATE: September 4, 2012