ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 06-CV-306081 PD3
DATE: September 25, 2012

BETWEEN:

STEVE MOORE, JACK MOORE and ANNA MOORE
Plaintiffs

– and –

TODD BERTUZZI, ORCA BAY HOCKEY LIMITED PARTNERSHIP and ORCA BAY HOCKEY, INC., dba THE VANCOUVER CANUCKS HOCKEY CLUB, VANCOUVER CANUCKS LIMITED PARTNERSHIP and VANCOUVER HOCKEY GENERAL PARTNERS
Defendants

Timothy Danson and Marjan Delavar for the Plaintiffs

Geoffrey D.E. Adair for Todd Bertuzzi
James Mangan for Orca Bay Hockey Limited Partnership and Orca Bay Hockey Inc., Vancouver Canucks Limited Partnership, and Vancouver Hockey General Partners

HEARD: September 18, 2012

PERELL, J.

REASONS FOR DECISION

A. INTRODUCTION

[ 1 ] On March 8, 2004, Steve Moore, a rookie hockey player with the Colorado Avalanche of the NHL, was seriously injured in a hockey game with the Vancouver Canucks. He sued Todd Bertuzzi, the player who struck him, and Mr. Bertuzzi’s hockey club. The trial of the action is scheduled to begin on January 28, 2013.

[ 2 ] Pursuant to s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and Rule 33, Mr. Bertuzzi, makes a motion for an Order that: (a) Mr. Moore attend for a vocational assessment by Dr. Michael McCue; and (b) Mr. Moore sign authorizations to the Graduate Management Admissions Council (GMAC) so that Dr. Lawrence M. Rudner, an expert in psychometrics, may access the database containing Mr. Moore’s test results for the Graduate Management Admission Test (GMAT) in order to prepare a report about the significance of Mr. Moore's GMAT test results and the value of the results in predicting vocational prospects.

[ 3 ] For the reasons that follow, I order that Mr. Moore attend for a vocational assessment by Dr. McCue but I dismiss the request that he be ordered to sign authorizations for Dr. Rutner to obtain access to the GMAT database.

B. FACTUAL AND PROCEDURAL BACKGROUND

[ 4 ] Mr. Bertuzzi’s request for an examination of Mr. Moore pursuant to s. 105 of the Courts of Justice Act is not a first request for a medical examination. As set out in the decisions of Master Dash, who has been assigned to case manage this litigation, and my own decisions on two appeals, there has been much history and considerable controversy about examinations by health practitioners of Mr. Moore with respect to his neuropsychological injuries and the alleged diminishment of his cognitive capabilities. See: Moore v. Bertuzzi , 2012 ONSC 597 (Master); Moore v. Bertuzzi , 2012 ONSC 3248 ; Moore v. Bertuzzi , 2012 ONSC 3497 (Master); Moore v. Bertuzzi , 2012 ONSC 4694 (Master) , and Moore v. Bertuzzi, 2012 ONSC 5008 .

[ 5 ] I will not repeat what was said in those decisions about the factual and procedural background, but I simply note that the Defendants have had Dr. Iverson and Dr. McCrea conduct neuropsychiatric assessments of Mr. Moore and that, in my most recent decision, I ordered that at the Defendants’ joint reasonable expense, Mr. Moore may retain his own medical expert to conduct a neuropsychological assessment of Mr. Moore and/or a report on the neurological assessments prepared by Dr. Iverson and Dr. McCrea.

[ 6 ] A major issue in Mr. Moore’s action is his allegation that he suffered permanent cognitive impairment and was incapable of resuming his professional hockey career or of realizing his post-hockey career income-earning potential. Mr. Moore claims damages of $60 million.

[ 7 ] On March 7, 2012, during a continuation of his examination for discovery, Mr. Moore was questioned about his efforts to apply to graduate school. He was asked about his having written the Graduate Management Admission Test (GMAT), which is administered by the Graduate Management Admission Council (GMAC), on two occasions and whether the examiners had afforded him any accommodations for the test.

[ 8 ] In answer to undertakings, Mr. Moore subsequently produced his request to GMAC for an accommodation in writing the GMAT test, and he provided the transcript of his test results. The disclosed documents revealed that Mr. Moore wrote the GMAT on March 3, 2010 and April 5, 2010. He scored in the 68th percentile for the first test and in the 88th percentile in the second test, which means that Mr. Moore ultimately scored higher than 88 percent of the test-taking population that had taken the GMAT in the previous three years. It also seems likely that Mr. Moore could gain admission to a business school although not necessarily a school that attracts an over-abundance of high scoring applicants.

[ 9 ] The disclosed documents revealed that in his Accommodation Request Form, Mr. Moore explained the rationale for his request as follows:

I sustained a serious head injury in March 2004, with loss of consciousness, and prolonged periods of retrograde and anterograde amnesia, and have had various consequences of that injury affecting me since then – including post-concussion syndrome (in my case this includes difficulty focussing, difficulty with prolonged concentration, memory difficulties, delays in processing information resulting in a slower processing speed than what most peers consider a normal rate, headaches, irritability, decreased mental energy, and decreased physical energy). ….

The additional time [requested] is due to the difficulty focusing, the difficulty with prolonged concentration, decreased mental energy, decreased physical energy, and delayed processing speeds.

The additional rest break is due to difficulty with prolonged concentration, decreased mental energy, decreased physical energy, and difficulty focussing.

The extended rest break is due to difficulty with prolonged concentration, headaches, difficulty focusing, decreased mental energy, and decreased physical energy. ….

[ 10 ] The disclosed documents revealed that GMAC approved Mr. Moore’s accommodation request, and he was allowed 50% additional time and one additional break, ear plugs, and an adjustable chair as accommodations.

[ 11 ] As explained further below, Mr. Bertuzzi sought additional information from Mr. Moore about his GMAT testing.

[ 12 ] On May 31, 2012, Mr. Moore served four expert reports including the Report of Lamorinda Consulting LLC dated May 24, 2012 and the Report of HR-Squared Consultants dated May 31, 2012.

[ 13 ] The Lamorinda Consulting Report, which was prepared by Dr. Kevin R. Murphy (Psychologist), and the HR-Squared Report, which was prepared by HR-Squared (Division of Options Group), revealed the basis or methodology of Mr. Moore’s loss of future earning capacity claim. Mr. Bertuzzi’s lawyers submits that the delivery of the reports set out for the first time the theory and details of Mr. Moore’s lost future income claim.

[ 14 ] In the Lamorinda Consulting Reported, Dr. Murphy opined, among other things, that: (a) before his injury, Mr. Moore showed highly superior cognitive abilities and there is clear evidence of a decline since his injury; (b) Mr. Moore does not exhibit the ability to plan, make decisions, set priorities, and to multi-task and is not capable of performing adequately in a wide range of managerial, executive, and professional work; (c) the occupations that correspond to Mr. Moore’s current level of cognitive ability are not likely to provide the remuneration that would be expected for a Harvard graduate with the level of intelligence and executive functioning Mr. Moore exhibited before his injury; (d) physical and psychological examinations show that Mr. Moore’s injuries limit his ability to work in a range of occupations and professions that he would have been well-qualified to pursue before his injury; and (e) Mr. Moore’s current job prospects are restricted to work that is more routine, less autonomous, less opportune for advancement, and significantly less remunerative than his former prospects.

[ 15 ] The HR-Squared Report was prepared by employees of the Options Group. These consultants were retained by Mr. Moore’s lawyer to provide an expert opinion of Mr. Moore’s lost income post his NHL hockey career. The consultants opined how likely Mr. Moore would have been able to obtain a job and to have a successful career in each of six occupations.

[ 16 ] Based on Mr. Moore’s SAT Reasoning Test, his Harvard University bachelor’s degree, his NHL career, and the observations in Dr. Ruth Berman’s Psychovocational Assessment Report, the HR-Squared consultants compared Mr. Moore’s profile with profiles from a database of 500,000 financial services professionals. They concluded that before his injuries, Mr. Moore’s vocations choices were most similar to the following job types: trader, marketer, investment banker, portfolio manager, high-net-worth advisor, sales person and research analyst.

[ 17 ] For example, for the job type hedge-fund marketer, the consultants provided an assessment of the likelihood that Mr. Moore would have succeeded in this position before or after his head injury. For Mr. Moore’s without-injury prospects as a trader, the consultants projected his career income under six scenarios. Three scenarios assumed that Mr. Moore had obtained an MBA degree, and three scenarios assumed he had only his Harvard University bachelor’s degree. The estimates were as follows:

No MBA

With MBA

Ages 25-55
31 years
$40,033,883

Ages 27-55
29 years
$38,447,952

Ages 30-55
26 years
$37,620,818

Ages 32-55
24 years
$17,658,863

Ages 35-55
21 years
$16,676,424

Ages 37-55
19 years
$10,754,828

[ 18 ] For Mr. Moore’s after-injury prospects as a hedge-fund marketer, the consultants at HR-Squared opined as follows:

Likelihood that Steve Moore could succeed in this position following his injury:

Mr. Moore’s career in the NHL ended after 69 games. Thus, he did not build the reputation for athletic excellence that could compensate for his lack of background in financial services and connections. While Mr. Moore’s 125 Full Scale Intelligence Quotient (FSIQ) on the Wechsler Adult Intelligence Scale (WAIS) administered by Dr. Michael McCrae would seem to be high enough to obtain this role, the pattern of his specific ability scores would indicate that Mr. Moore will have a hard time succeeding once on the job. Mr. Moore was found to be “average” in certain aspects of working memory that are important in training and early job performance. The same pattern of scores was also found in Dr. Ruth Berman’s Psychovocational Assessment Report. While his Harvard credentials might help him gain interviews, credentials will not help him succeed once on the job. Even if he were able to gain access to potential investors based on the name recognition he gained after the on ice incident with Mr. Bertuzzi, Mr. Moore’s shortcomings (e.g. lack of intelligence, inability to prioritize and inability to follow up as noted in Dr. Ruth Berman’s Psychovocational Assessment Report) would make it difficult for him to perform the job successfully. In sum: While it is possible that Steve Moore could obtain employment as a hedge fund marketer, there is a very low probability that he would have been able to keep the job based on the factors Dr. Berman outlined in her report.

[ 19 ] As may be noted, the HR-Squared consultants relied, in part, on Dr. Ruth Berman’s Psychovocational Assessment Report.

[ 20 ] Dr. Berman is a psychologist with 40 years’ experience in clinical, rehabilitation and occupational psychology. Her report was delivered by Mr. Moore in June 2011 and is dated May 27, 2011. Dr. Berman was retained by Mr. Moore’s lawyers to provide an independent psychovocational assessment of Mr. Moore to evaluate his vocational capacities and to provide an opinon about his future employment options. Her report was based on a clinical interview, psychometric testing, a review of file materials provided to her, and interviews with family members. She administered the following psychological tests: Weschler Adult Intelligence Scale (4th); Wide Range Achievement Test (Revision 4); Canadian Adult Achievement Test, General Aptitude Test Battery; Holland Self-Directed Search (Form R) and Personality Assessment Inventory (PAI).

[ 21 ] For present purposes, the following excerpts from Dr. Berman’s report are pertinent:

We have been asked … to assess Mr. Moore’s psychovocational capacities and provide an opinion with regard to his future vocational options and outlook. ….

… although Mr. Moore suffers from chronic post concussive symptoms and stressors, he is functioning fairly, at least on a day to day basis. It is evident, however, that he still experiences mild levels of dysphoria and discouragement, and continues to require continuing and professional psychotherapeutic assistance to cope with ongoing post injury issues. It is also apparent that prior to the injury Mr. Moore functioned at a very superior level, and thus, his present level represents a significant decline in his capacities and wellbeing.

It is our opinion that the impact of Mr. Moore’s injury has been overall very profound. He has not returned to hockey and he has not made any other vocational progress; rather he has remained continually unemployed for six years. …. Last year Mr. Moore apparently accepted that he could not return to play, and thus, he began to consider an alternate career path. ….

In terms of Mr. Moore’s present vocational options, Mr. Moore indicated that he aspires to work in senior, high level occupations related to business and finance, and he did apply for graduate study in business schools. ….

Based upon Mr. Moore’s present status and assessment outcomes, however, it is our opinion that Mr. Moore is not likely capable of performing in any of these occupations within the full range of required duties, or in a fully autonomous fashion, even if he were to successfully complete the necessary training programs to do so. ….

In stating the above, we wish to emphasize that we firmly believe that Mr. Moore is much more limited than this formal test outcomes suggest. As documented throughout his medical file, Mr. Moore has suffered a very significant brain injury. ….

Information provided by family members described specific concrete instances of how Mr. Moore’s intellectual capacities have been adversely affected, on a day to day basis, by his brain injury. They indicated that Mr. Moore can no longer study effectively on his own. …. He loses focus and is inaccurate and forgetful. His communication skills, the ability to quickly and clearly follow more complex conversations for example, are compromised. He has difficulties establishing priorities and making decisions. …. His judgment is questionable. ….

Thus, despite his formal test outcomes, we believe Mr. Moore is less cognitively capable than these outcomes would indicate. In understanding this, it is important to note the administration process of psychometric testing is highly standardized and structured, and performance is supported through one on one interaction with the examiner. This structure and support both guides an individual, and helps him or her to remain focused and goal oriented. Required tasks allow for little discretion on the part of the examiner or person being tested. …. Thus, while he was able to perform reasonably in this assessment, due to the high degree of structure and guidance provided, it is likely that his cognitive inefficiencies will emerge in a less structured, real-life, more ambiguous or novel situation, such an educational setting or a workplace, and negatively impact performance.

Nevertheless, in spite of his likely permanent impairments and their negative impact, Mr. Moore has indicated that he will probably apply again for graduate school training. Given his documented Harvard degree and his 88th percentile score on the GMAT, he may very well be accepted into a graduate school program, though at a lesser than Ivy League institution. If so, … it is likely that he will require significant accommodations …. Nevertheless, it is our opinion that attaining success at the graduate level will still remain problematic for him and it is questionable whether Mr. Moore could now succeed at such a high and complex level of unstructured study, even with accommodations. ….

With regard to the possibility of future rehabilitation of Mr. Moore’s cognitive impairments and limitations, there are no reports in Mr. Moore’s file indicating that Mr. Moore has undergone an assessment for cognitive rehabilitation or such treatment. In general, such rehabilitation therapy is intended to provide the individual with some level of compensatory strategies for cognitive deficits – to improve memory, attention, executive functioning, and other problems associated with brain injury. …

Although it might seem prudent to offer Mr. Moore cognitive rehabilitation assessment and treatment to strengthen his cognitive functioning and maximize his future employment prospects, it is important to note that there is, in fact, little empirical evidence that suggests that cognitive rehabilitation would be of assistance. ….

[ 22 ] After the delivery of the various reports in May 2012, Mr. Bertuzzi’s lawyers asked Mr. Moore’s lawyers for production of the documents about the GMAT examinations, which they regarded as relevant to the assessment of whether and to what extent Mr. Moore suffered from any cognitive impairment.

[ 23 ] Mr. Moore’s lawyers produced the results of the GMAT tests and Mr. Moore’s correspondence with the examiners about his request for an accommodation during the testing. The correspondence indicated that Mr. Moore had been accommodated by additional time to write the exam and by additional breaks during the examination.

[ 24 ] At about this time, Mr. Bertuzzi’s lawyers retained Dr. Lawrence M. Rudner, an expert in psychometrics (the study of mental measurement), to provide an opinion regarding the significance of Mr. Moore's GMAT test results and the value of the test results in predicting his vocational prospects. Dr. Rudner is the Vice President, Research and Development at GMAC, and he has a PhD in educational psychology and evaluation.

[ 25 ] Mr. Bertuzzi submits that in order to prepare his report, Dr. Rudner requires access to the accommodation files at GMAC and a database containing the results of both GMAT examinations taken by Mr. Moore. The database includes information on the questions posed and answers given as well as the time taken to answer each question. It is submitted that this data will enable Dr. Rudner to opine about whether and to what extent Mr. Moore utilized the accommodations and whether the accommodations affected the value of the GMAT score to predict his performance in business school.

[ 26 ] Mr. Bertuzzi further submits that in order to defend the allegation that Mr. Moore’s injuries diminished his earning capacity as a hockey player and his post-hockey career vocational prospects, Mr. Bertuzzi needs another medical examination of Mr. Moore pursuant to s. 105 of the Courts of Justice Act . Mr. Bertuzzi proposes that Dr. Michael McCue examine Mr. Moore and provide a vocational assessment.

[ 27 ] Dr. McCue is a clinical neuropsychologist who is Director of the Rehabilitation Counseling Program and Associate Professor and Vice-Chair Department of Rehabilitation Science and Technology of the University of Pittsburgh in Pittsburgh, Pennsylvania. Dr. McCue has expertise in assessing the effect of cognitive impairments on career prospects and and in assessing the benefits and prospects of cognitive rehabilitation.

[ 28 ] Dr. McCue will be asked to opine about: (a) whether Mr. Moore been compromised in pursuing a post hockey career by reason of his concussion injury; (b) what impediments, if any, Mr. Moore is left with in pursuing a post hockey career as a result of his concussion injury; (c) what, if any, rehabilitative measures might reasonably be employed by Mr. Moore with a view to overcoming any post-hockey career impediments sustained as a result of his concussion injury; and (d) Mr. Moore's ability to progress to a high level corporate executive and/or financial industry position, assuming motivation on his part and the undertaking of suitable academic and business training.

[ 29 ] In his notice of motion for an order under s. 105 of the Courts of Justice Act , Mr. Bertuzzi also had requested that Mr. Moore be examined by Dr. Mark Lovell, a neuropsychologist with a special interest in sports concussion injuries, but this request has been withdrawn.

[ 30 ] In addition to the Lamorinda Consulting report, Mr. Moore has experts' reports available from ten health care practitioners about his neuropsychological injuries. And he has evidence from Neurosurgeon Dr. Paul Muller, Psychiatrist Dr. Sidney H. Kennedy, Neurosurgeon Dr. Karen M. Johnston, Neuropsychologist Dr. Richard Naugle, Orthopaedic Surgeon Dr. Gordon Bell, Neurologist Dr. Patrick Sweeney, and Psychologist Dr. Paul Ritvo. For present purposes, most importantly, Mr. Moore has Dr. Berman’s psychovocational assessment.

[ 31 ] In comparison, Mr. Bertuzzi has the assessments and reports or Dr. Joseph Maroon (Neurosurgeon), Dr. Grant Iverson (Neuropsychologist), Dr. Michael McCrae (Neuropsychologist), and Dr. Allan Fox, (Neuroradiologist). The Defendants do not have any psychovocational assessment.

C. DISCUSSION

1. Medical Examination

[ 32 ] Under s. 105 of the Courts of Justice Act and by Rule 33 where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.

[ 33 ] A “health practitioner” is defined to be “a person licensed to practice medicine or dentistry in Ontario or any other jurisdiction, a member of the College of Psychologists of Ontario or a person certified or registered as a psychologist by another jurisdiction.” Under section 105(4) of the Act , “the court may, on motion, order further physical or mental examinations.” Under rule 33.02(2), “the court may order a second examination or further examinations on such terms respecting costs and other matters as are just.”

[ 34 ] In LaForme v. Paul Revere Life Insurance Co. , [2006] O.J. No. 2508 at para. 14 (Ont. Div. Ct.) , the Divisional Court stated that s. 105 of the Courts of Justice Act and Rule 33 were a statutory regime created to promote fairness in the litigation process and to provide the court with evidence that is subject to the adversarial process. The policy behind the defence medical examination is twofold: (1) to uphold the right of the defendant to conduct his or her defence as advised; and (2) to assist the court at an eventual trial by furnishing expert evidence that is subject to the adversarial process.

[ 35 ] A defendant has a prima facie right to a first medical examination under s. 105 and Rule 33 without the need for evidence or justification: LaForme v. Paul Revere Life Insurance Co. , supra.

[ 36 ] Additional medical examinations must be justified, and a litigant is not entitled to an examination simply to have a match for the health practitioners engaged by his or her opponent: MacDonald v. Rai , [2005] O.J. No. 2556 (S.C.J.) . Ordering a second or further physical examination is a discretionary matter that is not granted as a matter of course, and on motion, the defendant must present sufficient evidence to persuade a court as to the necessity for a further physical examination: Jeyanthiran v. Ratnam , [2009] O.J. No. 469 (Master) ; Monastero v. Savage , [2008] O.J. No. 2810 (S.C.J.) ; Fehr v. Prior , [2006] O.J. No. 5244 (S.C.J.) ; Pinelli v. Chmura , 2006 34277 (ON SC) , [2006] O.J. No. 4067 (S.C.J.); Moore v. Royal Insurance Company of Canada , [2006] O.J. No. 166 (S.C.J.) .

[ 37 ] In ordering a medical examination the court will be sensitive to the interests of both parties. On the one hand, defendants are entitled to have relevant information in preparing for trial, and on the other hand, plaintiffs are entitled to be protected from intrusive examinations that might discourage them from pursuing meritorious claims. The moving party must establish that the examination is likely to produce information relevant to the action, and this usually requires evidence about the purpose of the examination or medical testing and how it relates to a medical issue in the action: Suchan v. Casella (2006), 2006 20844 (ON SC) , 81 O.R. (3d) 615 (Master); Lavereau v. Nadarajah , [2006] O.J. No. 1018 (S.C.J.) ; Burden v. Shoebottom , [2004] O.J. No. 676 (S.C.J.) ; MacDonald v. Rai , supra ; Jones v. Spencer , [2005] O.J. No. 1539 (S.C.J.) .An unexpected change in complaint, symptoms, or circumstances may justify an additional medical examination: Tilson v. Economical Mutual Insurance Co ., [1999] O.J. No. 4094 (S.C.J.) ; Abdul-Nabi v. Wawanesa Mutual Insurance Co. , [1999] O.J. No. 3966 (Div. Ct.) ; Gravelle v. Pearson , [2001] O.J. No. 281 (S.C.J.) .

[ 38 ] Applying the above principles to the case at bar, in my opinion, it is appropriate to grant Mr. Bertuzzi’s request that Mr. Moore be examined by Dr. McCue for the purposes of a psychovocational assessment.

[ 39 ] During, oral argument, Mr. Moore’s lawyer conceded that had the request been made in June 2011 after the delivery of Dr.Berman’s report, it would be just and fair to order another assessment by another psychologist. However, he submitted that with the passage of time since June 2011, with a trial scheduled in a few months, with knowledge from the outset that Mr. Moore’s vocational prospects would be a central issue, and with Mr. Moore having undergone two neuropsychological assessments, it was unfair to make Mr. Moore undergo another repetitious examination.

[ 40 ] I see no delay in requesting the vocational assessment, no repetitiousness in a vocational as opposed to a neuropsychological assessment, and no unfairness in granting the medical examination request in the circumstances of this case.

[ 41 ] It was not until the recent delivery of the Lamorinda Consulting Report and the HR-Squared Report that Mr. Bertuzzi could fully appreciate the significance of having a psychovocational assessment. Before the delivery of these reports, it was quite appropriate for Mr. Bertuzzi and the Vancouver Canucks Defendants to focus their attention on whether Mr. Moore had and the extent to which he might have neuropsychological injuries and cognitive diminishment. Dr. McCue’s assessment has a different focus.

[ 42 ] The opposing litigants now both have reports from medical practitioners about the transitional or permanent effects of Mr. Moore’s injuries on his mental health and cognitive functioning. Dr. Belman’s report along with Lamorinda Consulting Report and the HR-Squared Report, however, have a different focus; these reports focus on the effect Mr. Moore’s current cognitive capabilities, his personality traits, and his prospects of rehabilitation will have on his vocational prospects in careers that arguably would have been available to him before his injuries changed his cognitive capabilities and his personality.

[ 43 ] Dr. McCue will not be preparing a neuropsychological assessment repeating the work of Dr. Iverson and Dr. McCrea; rather, he has been asked to prepare a psychovocational assessment, which is a different matter.

[ 44 ] Whether and to extent to which Mr. Moore suffered a decline in his cognitive ability is a crucial issue in his $60 million personal injury claim. The effect on any decline in cognitive capability on his comparative vocational prospects before and after the injury is an equally crucial issue, for which Mr. Bertuzzi should have a fair opportunity to make full answer and defence.

[ 45 ] It appears that there may be a significant difference in the opinions of Dr. McCue and Dr. Berman. In her report, she notes that there is no indication that Mr. Moore has undergone an assessment for cognitive rehabilitation, but she opines that although it might seem prudent to offer Mr. Moore a cognitive rehabilitation assessment and treatment to maximize his future employment prospects, there is little empirical evidence that suggests that cognitive rehabilitation would be of assistance. These are issues that Mr. Bertuzzi, through the evidence of Dr. McCue, should be given an opportunity to explore and challenge.

[ 46 ] Mr. Bertuzzi should also be provided with an opportunity to challenge Dr. Berman’s opinion that given Mr. Moore’s 88th percentile score on the GMAT, he may very well be accepted into a graduate school program, but, nevertheless, he will require significant accommodations and it is questionable whether he could now succeed even with accommodations.

[ 47 ] I, therefore, grant Mr. Bertuzzi’s request for a further s. 105 medical examination of Mr. Moore. If the parties cannot agree about the logistics of that examination, I will settle them at a case conference.

2. The GMAT Database

[ 48 ] As noted above, Dr. Rudner has been retained to opine about whether and to what extent Mr. Moore utilized the accommodations and whether the accommodations affected the value of the GMAT score to predict his performance in business school. Also already noted above is Mr. Bertuzzi’s submission that Dr. Rudner requires access to a database containing the results of the GMAT examinations taken by Mr. Moore.

[ 49 ] From the discussion above, I have already concluded that Mr. Bertuzzi should have an opportunity to challenge Dr. Berman’s opinion about the significance of Mr. Moore having received an accommodation on his GMAT test on the value of the results in predicting Mr. Moore’s prospects of vocational success. It does not follow, however, that I should grant the request that Mr. Moore be ordered to authorize Dr. Rudner to have access to the GMAT database.

[ 50 ] I decline to make this order because I have not been convinced that an analysis of the extent to which and precisely how Mr. Moore utilized the accommodation of 50% more time and an extra break is relevant or helpful to any material issue in the litigation between Mr. Moore and Mr. Bertuzzi. In R. v. Pilon , 2009 ONCA 248 () , [2009] O.J. No. 1172 (C.A.) at para. 33 , Justice Doherty stated: “Relevance is assessed by reference to the material issues in a particular case and in the context of the entirety of the evidence and the positions of the parties.”

[ 51 ] I wish to be clear, for present purposes, I accept that Dr. Rutner can offer relevant evidence about the predictive value of GMAT test scores on predicting future success at business school or in a business career, but I have not been convinced that anything is to be gained by an analysis of how Mr. Moore in particular used and did not use the accommodations granted by GMAC. I note that the transcript of the test score results, which are provided to the admissions committees at business schools, say nothing about accommodations having been granted. I have not been convinced that Dr. Rutner’s evidence about his analysis of the database behind Mr. Moore’s raw scores, which are reported in the transcript of test results, is relevant.

[ 52 ] If Dr. Rutner’s analysis were to prove that Mr. Moore did not use the accommodation, then, it logically follows that the accommodation was irrelevant and did not affect the predictive value of the GMAT score but that would not address Dr. Berman’s opinion that although Mr. Moore might be accepted into a graduate school program, he will require significant accommodations and that it is questionable whether he could now succeed even with accommodations. In the context of this litigation, whether or not used his accommodation is a collateral not relevant issue.

[ 53 ] Accordingly, I dismiss the request for the authorization of an examination of the GMAT database.

D. CONCLUSION

[ 54 ] Orders accordingly. If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Mr. Moore’s submissions within twenty days of the release of these reasons followed by Mr. Bertuzzi’s submission within a further twenty days.

Perell, J.

Released: September 25, 2012

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

STEVE MOORE, JACK MOORE and ANNA MOORE

Plaintiff

‑ and ‑

TODD BERTUZZI, ORCA BAY HOCKEY LIMITED PARTNERSHIP and ORCA BAY HOCKEY, INC., dba THE VANCOUVER CANUCKS HOCKEY CLUB, VANCOUVER CANUCKS LIMITED PARTNERSHIP and VANCOUVER HOCKEY GENERAL PARTNERS *

Defendants

REASONS FOR DECISION

Perell, J.

Released: September 25, 2012.