SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-12-451705
MOTION HEARD: NOVEMBER 28, 2013

RE: Doreen Kalicharan, plaintiff

v.

Susan Johnson, defendant

BEFORE: MASTER R.A. MUIR

COUNSEL:
William Jesseau for the moving party/defendant

William Caven, student-at-law, for the responding party/plaintiff

REASONS FOR DECISION

[1] The defendant brings this motion for an order that the plaintiff attend at a neuropsychological defence medical examination with Dr. Jean Saint-Cyr on January 9 and 10, 2014.

[2] A pre-trial conference in this action is set for January 14, 2014 and the trial is scheduled to begin on March 3, 2014 for a period of nine days.

[3] This action arises out of a motor vehicle accident which took place on May 26, 2010. The plaintiff is claiming significant damages and has alleged that she has suffered serious injuries including impairment to her physical, mental and psychological functions.

[4] This action was commenced on April 20, 2012. The plaintiff was examined for discovery on October 1, 2012. At that examination, the plaintiff gave evidence that she was injured in a slip and fall accident in her driveway in October 2009, approximately seven months before her motor vehicle accident. The plaintiff’s evidence was that she suffered an injury to her head as a result of her fall in October 2009. Overall, she alleges that she has suffered from some similar symptoms as a result of the fall and the motor vehicle accident.

[5] To date, the plaintiff has undergone two medical examinations at the request of the defendant. A physiatric examination was conducted on December 10, 2012 by Dr. Frank Lipson. On January 14, 2013, the plaintiff underwent a psychiatric examination by Dr. Stanley Debow. The plaintiff has served only one medical report. That report was prepared as a result of a physiatric examination conducted by Dr. Joseph Wong and is dated October 28, 2013.

[6] The plaintiff’s trial record was filed on October 23, 2012. On April 19, 2013, the defendant’s lawyer approved the plaintiff’s draft Certification Form which was then filed with the trial office for the purpose of setting pre-trial and trial dates. The plaintiff takes the position that the defendant’s approval of the Certification Form constitutes the defendant’s consent to having this action placed on the trial list as contemplated by Rule 48.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). As a result, the plaintiff argues that the defendant requires leave to bring this motion as required by the Rules.[1]

[7] Having considered the evidence before me and the submissions of counsel, I am persuaded that it is appropriate, in the circumstances of this action, to exercise my discretion and order the plaintiff to attend at the further medical examination requested by the defendant.

[8] First, it is my view that leave under Rule 48.04(1) should be granted, even on the basis of the strict test in Hill v. Ortho Pharmaceutical (Canada) Ltd., [1992] O.J. No. 1740 (G.D.) at page 3. That test requires a “substantial or unexpected change in circumstances”. I accept the evidence of the defendant’s lawyer that she only agreed to the contents of the Certification Form on the basis of her mistaken belief that the plaintiff was not objecting to the defendant’s proposed neuropsychological examination. In my view, the subsequent realization that the plaintiff was not prepared to attend such an examination amounts to a “substantial or unexpected change in circumstances”. The facts before the court on this motion are different from the facts in Goma v. Raghunandan, 2011 ONSC 6598 (S.C.J. – Master), a case relied upon by the plaintiff. In Goma, Master Dash found that a lawyer’s realization that he had failed to advance a counterclaim within the applicable limitation period was not an unexpected change in circumstances. See Goma at paragraph 4. The evidence before the court on this motion indicates that the defendant’s lawyer had considered the issue of the additional medical examination before agreeing to the contents of the Certification Form. It simply turns out that she was misinformed.

[9] With respect to the substantive relief in issue, the onus on this motion rests squarely with the defendant. I am persuaded that the defendant has met this onus and has established that this third medical examination is necessary. The factors applicable to such requests are succinctly summarized by Justice D. M. Brown in Bonello v. Taylor, 2010 ONSC 5723 at paragraph 16. I have considered those factors in light of the evidence before me in determining the issues on this motion.

[10] As the plaintiff correctly points out, the purpose of a defence medical examination is to challenge the plaintiff’s expert medical evidence. See Jeffrey v. Baker, 2010 ONSC 5620 (S.C.J.) at paragraph 4. The plaintiff has now served a physiatric report from Dr. Wong. In his report, Dr. Wong expressly disagrees with Dr. Lipson’s opinions. The defendant is entitled to challenge that report. The problem for the defendant in doing so lies in the fact that the defendant’s physiatric expert, Dr. Lipson, appears to be unable to finalize his opinion without a neuropsychological assessment of the plaintiff. Dr. Lipson needs to understand the extent to which the plaintiff’s slip and fall accident in October 2009 may have contributed to her cognitive impairment. According to Dr. Lipson, the information from such a further examination would allow him to “alter [his] opinion”. While Dr. Lipson’s statements about the necessity for a neuropsychological examination could have been clearer, I am satisfied from a review of his report that he requires such information in order to finalize his opinion. In this regard, this case can be distinguished from the decision of Master Abrams in Frazer v. Haukioja, 2007 CarswellOnt 3592 (S.C.J. – Master), as relied upon by the plaintiff.

[11] In addition, I am not satisfied that this further examination would place an undue burden on the plaintiff. The defendant is prepared to arrange for the plaintiff’s transportation. There is no specific evidence from the plaintiff that attending this additional examination would create a hardship for her. While there may be some jeopardy to the existing trial dates in ordering this examination, such a concern would not have arisen had the plaintiff agreed to the neuropsychological examination when it was first requested by the defendant eight months ago.

[12] The relief sought by the defendant at paragraphs 1 and 2 of her notice of motion is therefore granted. The defendant also sought an order pursuant to Rule 30.10 for production of certain records from the Ministry of Community and Social Services. However, this relief was not addressed during argument. To the extent that such an order is required, counsel may arrange to speak to the matter by contacting my assistant trial coordinator.

[13] The defendant has been completely successful and is entitled to her costs. At the conclusion of the argument of this motion, the parties agreed that the successful party should be entitled to costs on a partial indemnity basis in the amount of $2,000.00. I therefore order that the plaintiff pay the defendant’s costs of this motion on a partial indemnity basis fixed in the amount of $2,000.00, inclusive of HST and disbursements, payable within 30 days.

Master R.A. Muir

DATE: November 29, 2013

[1] I am not necessarily satisfied that leave is required in these circumstances. See the decision of Perell J. in Fromm v. Rajani, [2009] O.J. No. 3671 (S.C.J.) at paragraph 7. However, given that both sides approached this motion on the basis that leave is required I have addressed the issue as part of these reasons.