SUPERIOR COURT OF JUSTICE – ONTARIO
COURT FILE NO.: CV-09-392292
DATE: 2013/01/24
RE: Jacqueline Marie Woo Seto v. 2041098 Ontario Limited et al.
BEFORE: MASTER GRAHAM
HEARD: January 24, 2013
COUNSEL:
C. Wall for the defendants (moving parties)
D. Fenicky for the plaintiff
ENDORSEMENT
(Transcription of handwritten endorsement)
Motion to compel plaintiff’s attendance at defence medical examination
[1] On this motion under rule 33.02(1) to determine the location of the defence medical examination of the plaintiff, there is no question that the defendants have the prima facie right to select the physician to perform the examination to which they are entitled. There is no general rule as to the place of examination; convenience and justice are factors to be considered. (See: Smith v Liberty Life, 2003 11628 (ON SC) at ¶s 14 and 15). I accept that the trauma of the examination of a plaintiff by a physician chosen by her adversary ought to be reasonable and humanely ameliorated by the defendants and that the plaintiff should be afforded circumstances that enable her to arrive for her medical examination as reasonably rested and calm as is practicable. (See: Hudak v Cadillac Fairview, 2002 13053(ON SC))
[2] The plaintiff in this case seeks to avoid having to travel from Toronto to Hamilton for her defence medical examination. Her reasons, as set out in her responding affidavit sworn January 18, 2013 are that she is unfamiliar with Hamilton and the prospect of being taking to a strange city to be examined by a stranger makes her very uncomfortable. In addition, she has an adult daughter who is disabled and developmentally delayed who must travel with her. Her daughter requires 24 hour care and constant supervision and daily medications which the plaintiff administers. The plaintiff fears not being able to get assistance for her daughter or herself in the event of an emergency. She is also concerned that the result of her testing may be skewed as a consequence of her being forced to travel to Hamilton.
[3] The defendants are prepared to provide a vehicle and driver to transport the plaintiff and her daughter to Hamilton. The evidence in the supplementary affidavit of Joanne Witt is that the distance between the plaintiff’s home and the office of Dr. Kumbhare in Hamilton is 67.7 km or about 46 minutes by car.
[4] The attendance by this plaintiff or any plaintiff at a defence medical examination will inevitably cause some stress and inconvenience. The issue on the motion is as follows:
Is any additional inconvenience associated with the plaintiff being required to attend in Hamilton for her defence medical examination sufficient to deprive the defendants of their prima facie right to choose the physician to conduct the examination?
[5] The list of other possible physicians who might conduct a defence medical examination in Toronto include physicians whose offices would be at least a 30 min drive from the plaintiff’s home. Those physicians and their offices will be as unfamiliar to the plaintiff as Dr. Kumbhare’s office in Hamilton. The plaintiff’s concern about her daughter can be addressed by the defendants’ agreement to provide transportation for both the plaintiff and her daughter. If a medical emergency occurred in transit, there are hospitals between Toronto and Hamilton (Trillium in Mississauga, Oakville Trafalgar in Oakville) and hospitals in Hamilton, not to mention the fact that the plaintiff and her daughter will be in a physician’s office in Hamilton. Finally, there is no medical evidence that either the plaintiff’s or her daughter’s health would be endangered by travelling to Hamilton.
[6] The additional 15 to 30 minutes of travelling time is not sufficient to deprive the defendants of a medical examination of the plaintiff with the specialist of their choosing. The plaintiff shall attend at the defence medical examination with Dr. Kumbhare at the date, time and location in item 1 of the notice of motion on the following terms:
The defendants shall provide an appropriate vehicle with a driver, to transport the plaintiff and her daughter to and from Hamilton.
The plaintiff’s daughter may be in the examination room with her during the examination.
The defendants shall provide the plaintiff with a meal allowance of $40 total for her and her daughter.
[7] The plaintiff requested that the defendants provide an attendant for the plaintiff’s daughter. There is no medical evidence of such requirement and this request is refused.
Costs
[8] The defendants were successful on the motion and should be entitled to the costs. The assessment of costs is not to be based solely on a mathematical calculation of hours x rate but rather should be based on what the unsuccessful party might reasonably expect to pay in all the circumstances. (See: Boucher v. Public Accountants Council (2004), 2004 14579 (ON CA), 71 O.R.(3d) 291 (C.A.).
[9] Taking this principle into account, as well as the excessive amount for correspondence and the duplication between Mr. Wall’s preparation time and Mr. Wilkinson’s time, the plaintiff shall pay the costs of the motion fixed at $2,275.00 ($2,000.00 for fees and HST + $275.00 for disbursements) payable within 30 days.
Master Graham
DATE: January 24, 2013