NEWMARKET

COURT FILE NO.: CV-08-088682-00

DATE: 20130904

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Angelo Lo Faso, Plaintiff (Responding Party)

AND:

The Guarantee Company of North America and Eugen Guci, Defendants (Moving Parties)

BEFORE: THE HON. MR. JUSTICE P.H. HOWDEN

COUNSEL:
J. Donnelly, Counsel for the Plaintiff (Responding Party)

J. Maloney, Counsel for the Defendants (Moving Parties)

HEARD: August 29, 2013

ENDORSEMENT

[1] The defendant Eugen Guci seeks an order compelling the plaintiff Angelo Lo Faso to submit to an examination by Sarah Macrae, Occupational Therapist. The plaintiff takes the position that after two defence medical examinations and considering the fact that the plaintiff’s Occupational Therapist only did an interview and a documentation review, no further examination is required by the defence, but if one is ordered, it should be limited to an interview only.

[2] It should be noted that the O.T to be relied on by the plaintiff at trial has done a future care cost analysis to support the plaintiff’s claim for damages for future care. It is also clear to me that she will be called to testify to the plaintiff’s functional limitations and then she will testify to the cost to ameliorate those limitations.

[3] The issues are jurisdictional, because O.T.s do not come within the definition of health practitioners in s. 105, Courts of Justice Act, R.S.O. 1990, ch.C43, as well as the necessity for such an examination and fairness in the trial process. Neither examination already conducted by a plaintiff-retained professional dealt with the future care limitations and costs which the plaintiff has now provided.

[4] In my view, Edwards J. summed up the law on this subject succinctly and correctly in Ziebenhaus v. Bahlieda, 2012 ONSC 3787, [2012] O.J. No. 3542 (SCJ). He wrote at para 15:

15 From my review of the jurisprudence it is not necessary to come down on one side or the other of this debate. Even in those cases where the courts have looked to the jurisdiction found in Section 105 of the Courts of Justice Act it becomes readily apparent that there is a greater tendency now to order an assessment by a non medical practitioner, where after a review of all of the evidence, the court can come to the conclusion that such an assessment is reasonably required and will not result in an inherent unfairness to the plaintiff.

[5] The plaintiff has put his functional limitations in issue, in particular restrictions in overhead reaching, carrying, heavy lifting, pulling and pushing. The O.T. assessment as requested could provide a functional evaluation of the alleged limitations in the plaintiff’s shoulder and arm in relation to his allegations regarding future care needed for housekeeping and home maintenance tasks. I understand that these alleged limitations are live issues in this litigation and neither orthopedic surgeon can comment in detail as to the impact of the orthopedic injuries in relation to the business of daily living as well as detailed costing of the care that may be required.

[6] The plaintiff will be presenting a future care analysis. I find that fairness dictates that the defence should be in a position to present its evidence on this aspect of the case. I also find that the requested assessment is necessary and will not be unreasonably intrusive though it will involve some physical testing.

[7] I do not find in law that the court’s inherent authority is limited by the diagnostic aid requirement that some cases have placed on this kind of request. Desbiens v. Mordini, 2002 Carswell 6037 (SCJ); Vanderidder v. Aviva Canada Inc., 2010 ONSC 6222 (SCJ). Nor do I see a need to limit the occupational therapist to an interview only. The court should have available to it the best and relevant evidence in order to do justice in the case. She may do a functional assessment of the areas said to be limited to the extent she requires to in order to develop her opinion as to the practical degree of limitations for daily living as well as an interview with the plaintiff.

[8] The relief requested by the defence in this case is granted as stated in the factum.

[9] If costs cannot be agreed, counsel may make brief written submissions to me at the Barrie Court House within 30 days.

HOWDEN J.

Date: September 4, 2013