SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 11-52741

2014/01/27

RE: ANDREW WIELAND – Plaintiff v. ALJA CONSTRUCTION and STEPHANE LARABIE – Defendants

BEFORE: Mr. Justice Stanley Kershman

COUNSEL: Gregory Gilhooly, for the Plaintiff

Stephanie Drisdelle, for the Defendants

HEARD: January 21, 2014

ENDORSEMENT

[1] A motion was brought by the defendants seeking to have the plaintiff attend for an independent medical examination (“IME”) with the defendants’ physiatrist, Dr. MacGregor, on March 4 and 20, 2014 and allow this expert report to be served and filed after the pre-trial, which has already been held.

[2] The plaintiff argues that there should be no IME by the defendants’ physiatrist because this would be considered a second or further examination which is discretionary. His counsel argues that the onus is on the defendants to provide sufficient evidence to persuade the Court of the necessity of this examination. The authorities for these propositions are set out in paras. 16-23 of the plaintiff’s factum.

[3] The defendants argue that the IME by a physiatrist is necessary. The plaintiff was examined by the defendants’ orthopaedic surgeon, Dr. Ritter, in January 2013. Thereafter on or about May 9, 2013, the plaintiff was examined by his own physiatrist.

[4] Other specialists have conducted examinations in this matter but they are not relevant to the issue before the Court.

[5] A pre-trial was held on May 24, 2013. Master Roger made an endorsement in relation to the issue of the defendants’ request for an IME by a physiatrist. He ordered that the matter could be resolved on a motion. The trial of this matter is set for June 2014 with a jury.

Issue: Should there be an IME by Dr. MacGregor the physiatrist for the Defendants?

Analysis

[6] S. 105(2) of the Courts of Justice Act, R.R.O. 1990, Reg. 194, provides the courts with the discretion to order a physical or mental examination of a party whose physical or mental condition is in question in the proceedings.

[7] Rule 33.02(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that the Court may order a second or further examination on terms respecting costs and other matters as are just.

[8] The plaintiff was examined by the defendants’ orthopaedic surgeon Dr. Ritter in January 2013 and in May 2013 was examined by the plaintiff’s physiatrist, Dr. Finestone. Dr. Finestone made primary diagnoses in relation to various matters including mood and anxiety issues, as well as cognitive symptoms.

[9] The defendants seek to have their own physiatrist examine the plaintiff to deal with the matters set out in Dr. Finestone’s report, including mood and anxiety issues as well as cognitive symptoms.

[10] The plaintiff argues that Dr. Ritter, the orthopaedic surgeon, can respond to the matters raised in Dr. Finestone’s report. The Court disagrees. An orthopaedic surgeon specializes in the repair of bones, joints and ligaments. A physiatrist, on the other hand, specialises restoring optimal functions to people with injuries to muscle, bones, tissue and nervous systems. The Court finds that the two specialties are very different.

[11] Dr. Finestone’s report raises issues related to the plaintiff’s anxiety, cognitive and mood conditions, which would not be matters that an orthopaedic surgeon would be able to properly respond to.

[12] Accordingly, the Court exercises its discretion and finds that it is appropriate for the defendants to have its own physiatrist examine the plaintiff. The Court orders the plaintiff to attend at the defendants’ IME with Dr. MacGregor on March 4 and 20, 2014. The address and times can be provided by the defendants’ counsel to plaintiff’s counsel.

[13] The Court finds that there is sufficient time between the dates of the examination and the date set for trial to allow this examination to occur.

[14] The Court finds that the expert report of Dr. MacGregor can be served and filed after the pre-trial conference, which has already been held.

Costs

[15] At the motion, the parties agreed that the costs of the motion should be in the cause. There shall be an order to this effect.

[16] Order accordingly.

Mr. Justice Stanley Kershman

Date: January 27, 2014

COURT FILE NO.: 11-52741

2014/01/27

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: ANDREW WIELAND

Plaintiff

AND

ALJA CONSTRUCTION and STEPHANE LARABIE

Defendants

BEFORE: Mr. Justice Stanley Kershman

COUNSEL: Gregory Gilhooly, for the Plaintiff

Stephanie Drisdelle, for the Defendants

ENDORSEMENT

Kershman J.

Released: January 27, 2014