CITATION: Holness v Griffin, 2015 ONSC 6005
COURT FILE: CV-10-406119
MOTION HEARD: 20150417
REASONS RELEASED: 20151006
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
LEON HOLNESS by his litigation guardian PAUL HOLNESS
Plaintiff
- and-
JORDAN GRIFFIN and TINA GRIFFIN
Defendants
BEFORE: MASTER D. E. SHORT
COUNSEL: Jonathan Frydman Fax: ( 416) 777-2050
- for the Moving Defendants,
Eric B. Heath Fax: ( 416) 351-9953 -for the Plaintiff
RELEASED: October 6, 2015
Reasons for Decision
I. Overview
[1] On or about May 7, 2009, the Plaintiff was riding his bicycle northbound on Coxwell Avenue, in the City of Toronto, when he was stuck by the Defendants’ motor vehicle, causing the Plaintiff to crash and/or fall off his bicycle, resulting in serious and permanent injuries as a consequence thereof.
[2] In the Statement of Claim, issued on July 5, 2010, the Plaintiff claims $1,000,000.00 in damages for injuries sustained in the accident.
[3] The Defendants have denied the Plaintiff’s allegations in a Statement of Defence served along with the Defendants’ Jury Notice.
[4] The Plaintiff has put his physical/mental health and his ability to earn a livelihood and to compete in the workforce at issue in the Statement of Claim, where he alleges a number of serious personal injuries as a result of the motor vehicle accident, including retrograde amnesia; a GCS score of 3; a fractured sternum;cognitive limitations (decreased memory, word findings, etc.); difficulty with balance/footwork; and lack of coordination/upper extremities, etc.
[5] In particular the Plaintiff has alleged that as a result of the subject accident, his ability to perform various tasks in the workplace has been markedly reduced, his employment opportunities are greatly limited, and his competitive position in the labour market is substantially compromised. The Plaintiff claims for past and future income loss.
[6] The Defendants now move for orders with respect to particular examinations of the plaintiff. They request an Order compelling the Plaintiff to attend an in-person, vocational assessment, with Mr. Graham Pett. Further they seek an Order compelling the Plaintiff to request and provide the raw test data pertaining to previous assessments completed on his behalf by Drs. Karen Wiseman and Mark Dowhaniuk, directly to the defence neuropsychological expert.
[7] This motion requires the Court to answer the following questions:
(1) Should the Court order the plaintiff to undergo a vocational assessment with Mr. Graham Pett, a non-health practitioner? and
(2) Should the Court order that the plaintiff request or cause to be requested all the raw test data of assessments made on the plaintiff’s behalf?
[8] Counsel for the plaintiff resisted both of these requests. Subsequent to the hearing of the motion, counsel provided me with a recently delivered appellate level decision which partially helps to clarify the law applicable to such cases.
II. Previous Evaluations
[9] The Plaintiff was sent by his lawyer for a vocational assessment with Fred Winch on September 18, 2013 and a corresponding report was generated on October 4, 2013.
[10] Pursuant to the above-noted report, Mr. Winch has provided various expert opinions regarding the Plaintiff’s employability into the future. He has signed a Form 53 “Acknowledgement of Expert’s Duty” with respect to that report.
[11] Mr. Winch has based his expert opinions on the assumption that the Plaintiff’s diagnoses and related impairments appear to be the result of his involvement in the subject accident.
[12] Specifically, he has made the following expert opinions, which are not exhaustive of those contained in his report:
• The Plaintiff presents with some barriers affecting his capacity to pursue post-secondary academics which, in turn, limit his vocational goals and career choices;
• The Plaintiff’s thought processes have often been extreme whereby he tends to seek abrupt shifts and changes in his life without first researching their feasibility;
• That the Plaintiff’s vocational goal of becoming a lawyer is “overreaching”;
• Based on the Plaintiff’s ‘track record’ to date, often demonstrated by a level of immaturity and irresponsibility, Mr. Winch was of the view that there is a distinct possibility that he may not complete his present university studies within the expected parameters;
• He indicates that there remains the possibility that the Plaintiff might abandon his academic quests altogether. Consequently, if he was to enter the labour market, he would do so with only a high school education. Further, that based on statistical wage data, the overall financial ramifications of the Plaintiff’s motor vehicle accident are quite considerable. Rather than pursuing a purely academic route, which thus far has eluded him, the Plaintiff may discover that it would be more beneficial to think about a future career in sports or gymnastics coaching.
• Alternatively and taking into account the Plaintiff’s education and previous work experience, Mr. Winch suggests that he may wish to consider employment in the service industry specifically, retail sales, where he has some prior on-the-job work experience.
[13] Given the findings of Mr. Winch and his above noted expert opinions, the Defendants submit that a response by the defence vocational expert is warranted and necessary in the interest of trial fairness and justice.
[14] Counsel discussed the possibility of arranging such an examination on consent but ultimately counsel for the plaintiff declined to proceed on that basis and this motion was scheduled.
[15] Counsel for the Defendants points out that notwithstanding the fact that this action arises out of a 2009 loss, counsel for the plaintiff only passed the trial record on January 28, 2015.
II. Appropriate Tests
[16] Counsel for the plaintiff referred the court to Scissons v. Lajoie, 2008 CarswellOnt 21 where the moving defendants relied upon s. 105 of the Courts of Justice Act in support of their request that the Court order the plaintiff to undergo a comprehensive vocational rehabilitation assessment and functional capacity evaluation including an in-home assessment. The request was refused. That decision by Master Beaudoin (as he then was) was upheld on appeal by Justice Roccamo at 2008 ONSC 114, 57 C.C.L.I. (4th) 69; 56 C.P.C. (6th) 63; 2008 CarswellOnt 21; 2008 ONSC 114.
[17] Section 105of the CJA reads:
(1) In this section, "health practitioner" means a person licensed to practise medicine or dentistry in Ontario or any other jurisdiction, a member of the College of Psychologists of Ontario or a person certified or registered as a psychologist by another jurisdiction.
(2) Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.
(4) The court may, on motion, order further physical or mental examinations….”[my emphasis throughout]
[18] I note that subsection (4) does not specifically refer to who may conduct those subsequent examinations.
[19] In Scissons, Master Beaudoin dismissed the motion on the basis that the defendants had not provided an affidavit from a doctor or other credible evidence that the requested adjunctive testing was necessary to the diagnosis of the defence doctor. In his ruling, which was upheld on appeal, the Master canvassed the relevant principles the Court should apply when determining whether to order an assessment with a non-health practitioner:
(1) An assessment by persons who are not "health practitioners" may be ordered where such an assessment is necessary to the diagnosis of a health practitioner as defined by s. 105 of the Courts of Justice Act;
(2) The word "diagnosis" should be given a liberal interpretation;
(3) In exercising the discretion in considering a request pursuant to section 105 and Rule 33, the test to be applied is fairness, but fairness itself is not sufficient;
(4) There needs to be a proper evidentiary basis for determining the health practitioners necessity for such an assessment. While an affidavit from a qualified health practitioner should be preferred, other credible evidence may satisfy the test if it provides a sufficient context to evaluate the necessity for the additional diagnostic testing;
(5) The health practitioner should first examine the plaintiff and consider the results of that examination before making a request for adjunctive tests. At the very least, the health practitioner must comment on the relevant reports produced including any tests relied upon by the parties;
(6) Encouraging physicians to ask for the tests should not be promoted. In the absence of an affidavit from the health practitioner defence counsel should be prepared to reveal their correspondence with the physician making the request;
(7) Such an assessment needs to be directed to an important issue in the case;
(8) The defendant must adduce evidence that such an assessment will ensure a fair trial or other just result;
(9) The defendant must set out in detail the nature of the tests to be performed including the identity of the assessors, the duration and the physical requirements of any tests; and
(10) The test must not be unnecessarily intrusive to the plaintiff (with the plaintiff bearing the onus in this regard) [my emphasis throughout]
[20] Counsel for the Defendants submits that given the fact that the Plaintiff is claiming against the Defendants for past and future loss of income, and further, in that he has had an opportunity to be assessed by a vocational assessor of his choosing, it would be contrary to the interest of trial fairness and justice to force the Defendants to proceed to trial without ordering a similar assessment. It is argued that should the proposed vocational assessment be denied, the Defendants will be denied the opportunity to properly meet the Plaintiff’s case.
III. Test Data
[21] The moving parties further sought an order directing production of Raw Test Data from Drs. Karen Wiseman and Mark Dowhaniuk for use by their expert in preparing his report. Their factum submits:
“30. On June 6, 2014, Dr. William Snow, neuropsychologist, wrote to the attention of Defence counsel, David Zarek, acknowledging his retainer to conduct a neuropsychological assessment on the Plaintiff and further, requesting “complete copies of all raw test data and test protocols, psychometrist’s notes, clinical notes, and any computer scoring print-outs from the neuropsychological assessments conducted by Dr. Karen Wiseman on July 24, 2009, Dr. Mark Dowhaniuk on April 18, 2010 and September 1, 2011, Dr. Tobi Lubinsky and Dr. David Kurzman on June 10, 2011 and October 10, 2013, and the psychological assessment conducted by Dr. J. Pilowsky on June 30, 2011.”
[22] It was proposed by the Defendants that the raw test data, generated in the assessments with those doctors, be sent directly to Dr. Snow’s attention to assist in his analysis and in the preparation of his report. While at least one doctor’s data was provided to him, Dr Snow advised that it was his “preference” to have complete copies of all raw test data and test protocols, psychometrist’s notes, clinical notes and any computer scoring print-outs from all of the above assessments, prior to preparing his report.
[23] Counsel for the Plaintiff argues:
“51. Given the absence of evidence that this raw test data is necessary, the court should deny the request. The defendants' task at trial is not to "solve the problem" or "get to the bottom" of the plaintiffs complaints, but refute the diagnosis already provided by the plaintiffs treating or expert witnesses. [see Fehr v. Prior (2006) CarswellOnt, 8443, par. 6 ]
[24] ThePlaintiff specifically observes that by letter dated November 20, 2014 to David Zarek, Dr. Snow confirmed receipt of the raw test data of Dr. Kurzman. Dr. Snow stated it would be his "preference" to have the raw test data of Drs. Wiseman and Dowhaniuk before completing his report. Dr. Snow also asks counsel whether he should prepare the report without this material.
[25] On January 9, 2015, Mr. Heath wrote to Mr. Frydman and advised him that although he was willing to provide the raw test data from assessments conducted by Drs. Lubinsky and Kurzman, he was not willing to provide the raw test data from Drs. Wiseman, Dowhaniuk, or Pilowsky. At that time counsel indicated that in his view, Dr. Snow was not entitled to the raw test data generated by the latter assessors for the following reasons:
(1) Drs. Kurzman and Lubinsky apparently did not have that material when they conducted their assessments.
(2) The assessments of Drs. Wiseman and Dowhaniuk were not medical-legal assessments conducted in the tort action but were in fact commissioned in the associated accident benefits action.
[26] The plaintiff ultimately consented to request the raw test data from Dr. Wiseman's July 7, 2009 neuropsychological assessment, which is summarized in her assessment report dated July 23, 2009. The plaintiff has also consented to request the raw test data from Dr. Dowhaniuk's first neuropsychological assessment of February 4 and 22, 2010 assessment, which is summarized in his assessment report dated April 8, 2010. The plaintiff still opposed however the request to produce the raw test data from Dr. Dowhaniuk's July 8, 2011 assessment which is summarized in his report dated September 1, 2011, on the basis that “there is no evidence that it would be unfair the Defendants to proceed to trial without having discovery of it.”
[27] On February 11, 2015, Mr. Frydman responded to Mr. Heath, whereby he expressed that he disagreed with the assertion that Dr. Snow was not entitled to the raw test data from Drs. Wiseman and Downhaniuk. Specifically, he noted that those neuropsychologists had each assessed the Plaintiff at a particular point in time since the accident and therefore, the associated raw test data from those assessments was relevant. He further expressed his view that whether those assessors were involved in the tort or accident benefits aspects of the Plaintiff’s claim was “a red herring and irrelevant”. He maintained his position that the raw test data requested was relevant and should consequently be requested and provided.
[28] Mr. Frydman further advised that the central issue in dispute was the cause and extent of the Plaintiff’s alleged cognitive deficits and that Dr. Snow had specifically requested all raw test data of prior treating and assessing neuropsychologists so that he may best render an opinion that would enable him to aid the court by commenting upon the cause, extent, and etiology of the Plaintiff’s reported deficits.
IV. Raw Test Data from Dr. Dowhaniuk
[29] Rule 30.10 of the Rules of Civil Procedure provides for a production order from a non-party of documents within the possession of the non-party that are not privileged where the Court is satisfied that:
(a) The document is relevant to a material issue in the action; and
(b) It would be unfair to require the moving party to proceed to trial without having discovery of the document.
[30] According to Rule 31.06(3) of the Rules of Civil Procedure, a party may obtain disclosure of the “findings, opinions and conclusions of an expert engaged by or on behalf of the party being examined that are relevant to a matter in issue in the action. As well it has been acknowledged by the Court that raw test data falls within the scope of disclosure required as part of an expert’s findings, opinions and conclusions. In this respect see Long (Litigation Guardian of) v. Dundee Resort Development LLC (c.o.b. Arapahoe Basin Ski Area,) [2012] O.J. No. 3178, at para. 11 and Ritorto v. Ahmad, [2007] O.J. No. 233, at para. 7.
[31] The Defendants submit that there is a public interest in encouraging that any and all relevant information and evidence is before any court when it is considering any case. For example in Long, the Court noted that there could be no doubt that the raw test data sought from the Defendant’s neuropsychologist expert by the Plaintiff was relevant to a material issue in the action; that being whether the Plaintiff had suffered a brain injury and if so, its severity. As well at paragrapf 28 in Long, the Court further noted the long-standing practice within the personal injury/insurance defence bar where raw test data may be exchanged between neuropsychologists retained by one side to the other.
[32] I agree with defence counsel’s submission that any potential prejudice caused by the provision of the requested raw test data directly to Dr. Snow could be cured by the provision of same information to the Plaintiff’s assessors for the purpose of preparing any addenda to their reports.
[33] In my view it would be unfair to force the Defendant to proceed to trial without their expert Dr. Snow, having the opportunity to review the raw test data of Drs. Wiseman and Dowhaniuk, who are both neuropsychologists and had previously assessed the Plaintiff in 2009, 2010 and 2011, following the occurrence of the subject accident.
[34] My conclusion, having reviewed the various arguments is that the raw test data from Drs. Wiseman and Dowhaniuk, which has been specifically requested by the defence expert, Dr. Snow, for the purpose of aiding in his analysis and the preparation of his report, is relevant given the breadth of the pleadings and accordingly should be provided directly to his attention,.
V. Jurisdiction to Order Vocational Assessment by Non-Medical Expert
[35] The legislative scheme essentially leaves it to the Court to decide, when there is no agreement between the parties, how many and what types of assessors should be permitted to examine a party, and under what conditions entitlement to a non-medical expert assessment arises.
[36] Though the Rules of Civil Procedure dedicate the entirety of Rule 33 to medical examinations of parties, there no similar specific rule governing non-medical examinations. As a consequence I have turned to the case law for guidance on this issue.
[37] The judges of the Superior Court of Justice have the inherent jurisdiction to order that a party to an action undergo a physical or mental examination by a person who is not a “health practitioner” for the purposes of section 105
[38] In my view the case law is clear in finding that Courts may use their inherent jurisdiction to Order that non-medical, in-person examinations proceed where doing so is in the interest of trial fairness and justice and that the proposed assessment would be necessary to enable the Defendant to meet the Plaintiff’s case. Numerous Masters’ decisions have considered these issues and directed such “non-medical” examinations in appropriate circumstances.
[39] My reading of the caselaw is that it is clear that s. 105 of the CJA does not "occupy the field", or displace the Court's inherent jurisdiction to order a plaintiff to attend an examination with a non-health practitioner, if it is necessary to ensure trial fairness and justice. Understandably the Court ought only to have recourse to its inherent jurisdiction sparingly, and on a basis that does not conflict with section or Rule 33.
[40] When such a motion is brought before a Master I believe Rule 37 also needs to be considered. That rule dealing with “Jurisdiction to Hear a Motion”, with my annotations, reads:
Jurisdiction of Judge
37.02(1) A judge has jurisdiction to hear any motion in a proceeding.
Jurisdiction of a Master
(2) A master has jurisdiction to hear any motion in a proceeding, and has all the jurisdiction of a judge in respect of a motion, except a motion,
(a) where the power to grant the relief sought is conferred expressly on a judge by a statute or rule;
(b) to set aside, vary or amend an order of a judge;
(c) to abridge or extend a time prescribed by an order that a master could not have made;
(d) for judgment on consent in favour of or against a party under disability;
(e) relating to the liberty of the subject;
(f) under section 4 or 5 of the Judicial Review Procedure Act; or
(g) in an appeal.
[41] Based upon the previous case law, the analysis that follows and the fact that there is no specific exception by statute or rule preventing a Master from ordering such an examination I am satisfied I have sufficient jurisdiction to make the orders sought in this case.
VI. Ziebenhaus
[42] My analysis is supported by thehe recent clarification of the appropriate approach in such cases is found in the Court of Appeal’s decision in Ziebenhaus (Litigation guardian of) v. Bahlieda, 2015 ONCA 471; 254 A.C.W.S. (3d) 309;386 D.L.R. (4th) 156;2015 CarswellOnt 9461. There Justices J.L. MacFarland, P.S. Rouleau and P.D. Lauwers dealt with issues concerning claims made on behalf of a plaintiff who suffered a brain injury in ski accident.
[43] Justice Rouleau described the matter before the court as “an appeal in a personal injury case that involves a narrow but important issue, one that this court has not yet addressed and on which there is conflicting case law: whether the Superior Court of Justice has inherent jurisdiction to order a party to undergo an assessment by someone who is not a "health practitioner", as defined in s. 105 of the Courts of Justice Act.”
[44] There the parties' dispute before the court centred on whether the motion judge “exceeded his jurisdiction when, relying on the court's inherent jurisdiction, he allowed the respondent's request for an order that Ziebenhaus be examined by a vocational assessor selected by the respondent.”
[45] It was agreed by the litigants that a vocational assessor is not a "health practitioner" as defined in s.105 (1) of the Act and that there is no provision in the Act or in the Rules of Civil Procedure, empowering a court to order that a party submit to an examination by a vocational assessor. In this regard Justice Rouleau observed: “Although mention was made of Rule 33 of the Rules, which addresses medical examinations, it simply sets out how courts are to administer s. 105 of the Act.”
[46] Ultimately the court made these findings and observations:
“7. The appellants argue that the Divisional Court erred when it confirmed the motion judge's decision. In their submission, by enacting s. 105, the legislature has defined the category of persons who may conduct an examination. As a result, the court does not have the inherent jurisdiction to order an examination by someone who is not a "health practitioner", as this would conflict with the legislation.
I see no basis to interfere with the Divisional Court's decision. That court fully canvassed the submission that s. 105 "occupies the field" and that an order for examination by an individual who is not a "health practitioner" would be contrary to the intent of s. 105. In doing so, it addressed the conflicting lower-court jurisprudence on the issue of the court's jurisdiction to order such an examination. One line of cases interprets s. 105 of the Act and Rule 33 narrowly, allowing courts to order such an examination only if a health practitioner needs it as a diagnostic aid. The other line of cases suggests a court can exercise its inherent jurisdiction to order such an assessment, to ensure justice between the parties is done. See Vanderidder v. Aviva Canada Inc., 2010 ONSC 6222, [2010] O.J. No. 5011, at para. 23.
The Divisional Court concluded that s. 105 does not "occupy the field". It noted that the health sciences and patient care have evolved to include a wide range of assessments by experts who are not "health practitioners". Such assessments cannot all be characterized as diagnostic aids to the opinion of a "health practitioner". Precluding their use in the litigation context would be contrary to good public policy. In the light of these circumstances, the court said, at para. 45:
The only conclusion that can be drawn from these circumstances is that section 105 does not completely "occupy the field" in the sense that it makes no provision for physical and mental examinations that are routinely used in the care and treatment of injured persons, and in litigation, that are conducted by persons who do not qualify as "health practitioners" under section 105. Accordingly, there is a gap in the statutory provisions regarding the entitlement of a party defending an action to require a plaintiff to submit to such examinations.
On the issue of whether an order for an assessment by an individual who is not a "health practitioner" would be contrary to the intent of s. 105, the Divisional Court determined that it would not.
I see no error in the Divisional Court's analysis and conclusion.”
[47] The court further analyzed the exercise of the court’s inherent jurisdiction and the proper exercise of that power:
- As set out by the Supreme Court of Canada in R. v. Rose, 1998 SCC 768, [1998] 3 S.C.R. 262, at para. 133:
[T]he inherent jurisdiction of superior courts is a significant and effective basis for preventing abuse of the court's process and ensuring fairness in the trial process. This enduring and important jurisdiction of the court, if it is to be removed can only be accomplished by clear and precise statutory language.
- The language of s. 105 and Rule 33 does not constitute such clear and precise language. The language of these provisions is permissive, and they do not state that a court cannot order an examination by someone who is not a "health practitioner". Moreover, the conclusion that a superior court judge has the inherent jurisdiction to order such an examination does not conflict with the relief available under s. 105, nor should it be seen as extending the reach of that section. Inherent jurisdiction should be exercised only sparingly and in clear cases, when the moving party demonstrates that it is necessary to ensure justice and fairness.
[48] In that case and in the case before me it was argued that even if the court had the inherent jurisdiction to make such an order, it should not exercise its jurisdiction in this case. I adopt and follow the conclusion reached by Justice Rouleau:
“15. I would not give effect to this submission. While recourse to inherent jurisdiction should be had only sparingly, the motion judge in this case concluded that invoking it was necessary "in the interest of fairness", as it was required for the defendants to meet the plaintiffs' case. The Divisional Court quite properly concluded there was no basis to interfere with the motion judge's exercise of discretion in this case.”
VII. Accident Benefits Files
[49] Before concluding these reasons I turn my attention to a separate ground of opposition to production that was argued before me.
[50] Counsel for the plaintiffs also asserted that possible production of data created with regard to Accident Benefits claims in relation to the same accident ought to be treated differently
[51] In Beasley v. Barrand, 2010 ONSC 2095, [2010] O.J. No.1466, Justice Moore decided that since the reports were commissioned within the confines of the accident benefits claim, and that they did not conform with Rule 53.03, the Defendants’ application to call expert, oral evidence from and/or to file the medical expert reports was denied.
[52] Here we are not at trial. Admissibility of the reports is not the issue at this stage. In Michienzi v. Kuspira, [2012] O.J. No. 6390 at para. 1; a later decision by Justice Grace, he dealt with a Notice of Intention filed by the Defendant to either file reports commissioned by and provided to the Plaintiff’s accident benefit insurer or call their authors as witnesses. Counsel for the Plaintiff objected to the introduction of any evidence from those persons. Like Beasley, Rule 53 and admissibility of expert reports at trial were central issues for the purpose of the motion.
[53] There the Plaintiff asked that evidence from the authors of the accident benefits reports be excluded for four reasons:
• first, the accident benefits reports were not in compliance with rule 53.03(2.1);
• second, admission of the evidence would negatively affect trial fairness;
• third, the proposed evidence was irrelevant and
• fourth, admission would lead to duplication.
[54] Justice Grace specifically noted that tests were conducted and observations were made by the authors of the accident benefits reports concerning the Plaintiff’s cognitive, emotional and physical state in June, 2009, which was roughly the midpoint between the accident and trial. It was the Court’s view that the evidence concerning those matters was relevant to the issues raised and was of assistance to the jury in understanding and determining the range, severity and duration of the effects of the accident on the Plaintiff. Justice Grace distinguished his case from that of Beasley and denied the Plaintiff’s request to exclude the evidence of the relevant accident benefits experts. At this stage I come to the same conclusion
[55] The Court was clear that despite the reports having been commissioned pursuant to the accident benefits claim, they were clearly snapshots of certain aspects of the Plaintiff’s situation taken previously and at a time subsequent to the subject motor vehicle accident.
[56] While the Court in Ziebenhaus specifically discourages a “tit for tat” approach to ordering non-medical, in-person examinations, they maintain that it is within the Court’s inherent jurisdiction to order these types of examinations where they are in the interest of trial fairness and justice and that the proposed assessment is necessary to enable the Defendants to meet the Plaintiff’s case.
VIII. Disposition
[57] Accordingly, this court is hereby making an Order compelling the Plaintiff to attend the in-person, vocational assessment, to take place with Mr. Graham Pett on the date presently tentatively scheduled.
[58] As well an Order is to go directing the Plaintiff to request and provide all raw test data pertaining to assessments completed by Drs. Karen Wiseman and Mark Dowhaniuk, directly to the defence neuropsychological expert, Dr. William Snow within 20 days.
[59] The law in this area was uncertain when the motion was argued and I respect the basis upon which the Plaintiff resisted the relief sought. Nevertheless the Defendants were ultimately successful. Taking the entire history of this matter into account and applying proportionality I have determined to award Costs to Defendants on a Partial Indemnity basis, but on the basis of “to the Defendants in the cause”.
[60] If the parties cannot agree on quantum I may be contacted by way of my Assistant Trial Co-ordinator
[61] I am obliged to both counsel for their assistance and advocacy in this matter.
R.101/DS __________________
Master D.E. Short