SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No.: CV-11-421517

Motion Heard: July 17, 2014

RE: Dwayne Caesar

v.

Alexei Griaznov and Marine Vashakidze

Before: Master R.A. Muir

Counsel:
Catherine Brown for the moving defendant Marine Vashakidze

Michael O’Brien for the responding party/plaintiff

REASONS FOR DECISION

[1] This motion is brought by the defendant Marine Vashakidze pursuant to section 105 of Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”) and Rule 33 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) for an order requiring the plaintiff to attend a defence physiological examination before a physiatrist, Dr. Rajka Soric. The plaintiff has attended one defence medical examination at the request of the moving defendant. That examination took place on February 24, 2014 before Dr. Robert Hines, a psychiatrist.

[2] This tort action arises from a motor vehicle accident on June 8, 2009. As a result of the accident, the plaintiff claims to have suffered various injuries, including tearing and straining of muscles and ligaments, soft tissue injuries and neck and back strain. The plaintiff also alleges injuries in the nature of impairment to his mental functions and capabilities and loss of control of his emotions. The plaintiff alleges that these injuries have seriously affected his ability to work and engage in social and athletic activities. He claims $500,000.00 in damages.

[3] The plaintiff was examined for discovery in July 2012. In December 2013, the moving defendant’s lawyer wrote to the plaintiff’s lawyer and indicated that the defendant wished to conduct two defence medical examinations. One examination was to be with Dr. Hines and the other with Dr. Soric. The plaintiff’s lawyer responded by sending two separate letters on December 18, 2013 advising that the plaintiff would attend the two examinations as scheduled on certain conditions. Although the plaintiff ultimately took the position that he has never agreed to attend more than one such examination, this position is not entirely clear to me from the December 18, 2013 letters.

[4] In any event, the plaintiff’s lawyer certainly made it clear by an email sent February 10, 2014 that the plaintiff would attend only one examination at the moving defendant’s choosing. On February 12, 2014, a law clerk in the office of the moving defendant’s lawyer sent an email to the plaintiff’s lawyer stating that the moving defendant had “chosen” to have the plaintiff attend an examination with Dr. Hines. Although this email certainly appears to suggest that the moving defendant was content with one examination, it should be noted that the law clerk followed up with respect to an examination by Dr. Soric by way of an email dated March 6, 2014. The email of March 6, 2014 certainly reads as though the law clerk assumed that there would be an examination of the plaintiff by Dr. Soric as well.

[5] The law applicable to motions of this nature is set out in Master Haberman’s decision in Jones v. Ivanouski, [2009] O.J. No. 4959 (S.C.J. – Master) beginning at paragraph 4 where she states as follows:

4 As I noted in Nelson v. Thiruchelvam 2005 4849 (ON SC), [2005] O.J. No. 743, motions of this kind are won and lost on the evidence presented to the court:

Multiple defence medical examinations are not granted as a matter of course. While there appears to be some dispute in the case law regarding whether the moving party must establish an absolute need for the additional examinations as opposed to the examinations being "critical", the general principle that appears to emerge from the cases is that the moving party must provide evidence that addresses why they seek particular examinations and the basis for seeking that relief must be clear and compelling.

5 Similarly, in Burden v. Shoebottom [2004] O.J. No. 676, Di Tomasso J. allowed a second defence medical examination where the evidence enabled him to find that there was a need for one and where the assessment sought was of real importance to the defendants' case.

6 In Monastero v. Savage [2008] O.J. No. 2810, Gordon J. laid out a series of factors which I paraphrase below, that the court should consider when exercising its discretion on these motions:

● The moving party must establish a need for the further examination;

● New symptoms or complaints or a change in the landscape of the case as a result of a new medical report from the plaintiff is often used as the basis to justify a further defence medical examination;

● The overriding test is fairness and both sides having the ability to put the best evidence before the court at trial.

[6] In my view, fairness requires that an order be made compelling the plaintiff to attend an examination by Dr. Soric. The plaintiff is claiming significant damages. Those damages are alleged to have arisen as a result of two very distinct types of injury, physical and psychological. A clear example of the importance attached to both of these areas of injury is found in paragraph 18 of the statement of claim which reads, in part, as follows:

To perform at his customary high levels of excellence, Dwayne required extensive use of his mental faculties of concentration, analysis, reasoning, memory and problem solving. He also required extensive use of his physical capacities to lift, pull, hold, manipulate and grasp and was required to sit and/or stand for long periods of time without a break.

[7] It is clear that the damages the plaintiff is seeking are just as much a function of his alleged physiological injuries as they are a result of his psychological injuries. These are completely distinct areas of medical inquiry. There will be no overlap between Dr. Hines’ examination and Dr. Soric’s examination.

[8] In addition, there will be little unfairness or prejudice to the plaintiff in attending this further examination. No trial date is pending. The next event is a mediation session scheduled for November 2014. The requested examination can be conducted and a report prepared well before the mediation date. The moving defendant is also prepared to agree to almost all the plaintiff’s proposed conditions respecting the examination. It is true that the plaintiff has attended many medical examinations in connection with his accident benefits claim. However, those examinations were nearly four years ago and were very different from a defence medical examination within the context of a tort claim.

[9] On the other hand, there may very well be significant unfairness to the moving defendant is she is forced to proceed to mediation and trial without a physiological examination of the plaintiff. She will be required to defend a central element of the plaintiff’s action without the benefit of a current expert assessment.

[10] I do agree with the plaintiff that the law clerk’s email of February 12, 2014 could easily be interpreted as an agreement to conduct only one examination. However, when viewed within the context of the overall exchange of messages, and in particular the law clerk’s email of March 6, 2014, I am satisfied that the moving defendant always intended to preserve her right to a second examination.

[11] The moving defendant has been successful and would ordinarily be entitled to costs. However, it is my view that the plaintiff’s opposition to this motion was not unreasonable given the email of February 12, 2014 confirming that the moving defendant had “chosen” an examination by Dr. Hines. The moving defendant should have made it clear that she was not abandoning any right to an examination by Dr. Soric. For this reason, I have concluded that it is fair and reasonable that there be no order with respect to the costs of this motion.

[12] I therefore order as follows:

(a) the plaintiff shall attend at a defence physiological examination before a physiatrist, Dr. Rajka Soric, by September 5, 2014;

(b) the examination shall take place on the same terms and conditions as the parties agreed to with respect to the examination by Dr. Hines; and,

(c) there shall be no order with respect to the costs of this motion.

Master R.A. Muir

DATE: July 17, 2014