Court File and Parties

COURT FILE NO.: CV-12-453563 MOTION HEARD: JUNE 1, 2016

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: George Marfo v. Sahra Mohamed Ahmed and Naciimo Dirie

BEFORE: MASTER R.A. MUIR

COUNSEL: Kristina Cooke, student-at-law, for the defendants Payam Ezzatian for the plaintiff

REASONS FOR DECISION

[1] This motion is brought by the defendants pursuant to section 105 of Courts of Justice Act, RSO 1990, c C.43 and Rule 33 of the Rules of Civil Procedure, RRO 1990, Reg. 194. The defendants seek an order requiring the plaintiff to attend a defence orthopedic examination with Dr. Terry Axelrod. The plaintiff is opposed.

[2] This action arises from a motor vehicle accident on June 28, 2010. As a result of the accident, the plaintiff claims to have suffered various physical and psychological injuries. The plaintiff alleges that these injuries have seriously affected his ability to work and to engage in his usual day to day activities. The plaintiff seeks damages of $1,000,000.00.

[3] The parties agree that the applicable test on a motion of this nature is found in the decision of this court in Bonello v. Taylor, 2010 ONSC 5723. The applicable factors are set out at paragraph 16 of that decision as follows:

• The party seeking the order for a further examination must demonstrate that the assessment is warranted and legitimate, and not made with a view to delaying trial, causing prejudice to the other party, or simply corroborating an existing medical opinion;
• A request may be legitimate where there is evidence that (i) the party's condition has changed or deteriorated since the date of a previous examination, (ii) a more current assessment of the plaintiff's condition is required for trial, (iii) the plaintiff served specialist reports from new assessors after the defendants had conducted their medical assessments, or (iv) some of the party's injuries fall outside the expertise of the first examining health practitioner;
• Some cases take the view that the need for a "matching report" - i.e. a report from a defence expert witness in the same specialty as a plaintiff's expert - is not, in and of itself, a sufficient reason to order a further defence medical. In the circumstances of the present case I need not wade deeply into that question. That said, I would venture that trial fairness should operate as the guiding principle in this area, so if the plaintiff has decided that expert evidence from one specialty based on an examination of the plaintiff is relevant to the adjudication of her claim at trial, courts should be loathe to deny the defence a fair opportunity to respond with expert evidence from the same specialty based on an assessment of the plaintiff. Ordering further examinations may be just where they are necessary to enable the defendant fairly to investigate and call reasonable responding evidence at trial;
• Where the request is for the examination of the plaintiff by a person who is not a health practitioner, such as a rehabilitation expert, the defendant must demonstrate that the proposed examination is necessary as a diagnostic aid to the health practitioner who is conducting the defence medical examination;
• A request for a second examination must be supported by sufficient evidence to persuade a court of the need for the further examination. What constitutes sufficient evidence will vary from case to case. Some cases have suggested that need must be established by filing medical evidence, such as an affidavit from the first examining physician recommending a further examination by a health practitioner competent in another specialty. In other instances an affidavit from a lawyer or law clerk attaching medical reports has been utilized by the court. But, at the end of the day, determining whether the nature of the evidence filed is sufficient remains essentially an exercise of judicial discretion;
• While fairness, or "creating a level playing field", may constitute a legitimate reason for ordering a second examination, someone with knowledge of the evidence in the case must provide evidence of unfairness for the court to consider; and,
• A court should consider whether the request for a further examination would impose an undue burden on the plaintiff in light of the number of examinations already conducted of her by the defence.

[4] These are the factors I have considered in determining the issues on this motion. Having done so, I am not prepared exercise my discretion to order this further examination.

[5] The plaintiff has served two medial reports. The first was from Dr. Michael West, an orthopedic surgeon and is dated July 22, 2012. The second is from Dr. J. Pilowsky and is dated July 27, 2012. The plaintiff did obtain a second report from an orthopedic surgeon for the purpose of his accident benefits claim but the plaintiff will not be calling that expert as a witness at the trial of this tort action.

[6] The defendant conducted a defence medical examination of the plaintiff on October 17, 2014. That examination was conducted by Dr. D. Berbrayer, a physiatrist. The plaintiff also attended a defence psychological examination with Dr. David Prendergast on December 8, 2015.

[7] The defendants now wish to conduct a second physical examination of the plaintiff with an orthopedic surgeon.

[8] It is important to note that the defendants had the plaintiff’s medical reports in their possession when they chose to have the plaintiff examined by Dr. Berbrayer in October 2014. Dr. Berbrayer’s report makes reference to the plaintiff’s reports. The defendants knew the plaintiff would be relying on the report of an orthopedic surgeon at the trial of this action. Despite this knowledge, they chose to have the plaintiff examined by a physiatrist to assess his physical injuries. The defendants could have sent the plaintiff to an orthopedic surgeon. They chose not to.

[9] The defendants bear the onus on this motion. They must demonstrate to the court that this second physical examination is warranted. The plaintiff should not be subjected to endless physical examinations by the defendants’ doctors at the sole discretion of the defendants.

[10] There is no evidence on this motion that would suggest a significant or important change in the plaintiff’s condition since October 2014. Dr. Berbrayer, the defendants’ physiatrist, prepared an addendum report on November 26, 2015, based on updated medical information from the plaintiff. In that addendum report, Dr. Berbrayer concluded that his opinion from his original report remained unaltered.

[11] The defendants argued that in the summer of 2015 they received information regarding a subsequent motor vehicle accident involving the plaintiff that took place in September 2011. The defendants submitted that this new information formed a basis for a second physical examination of the plaintiff by the defendants’ proposed orthopedic expert. I do not agree. Dr. Berbrayer was aware of this second accident when he prepared his addendum report and nevertheless concluded that his original opinion remained unaltered. Dr. Berbrayer did not state that he required a further physical examination of the plaintiff in view of this new information. The defendants have not filed any evidence on this motion from any other physician indicating a second physical examination is necessary. The only evidence filed by the defendants is from a law clerk employed in the office of the defendants’ lawyers.

[12] The new information regarding the subsequent accident may be a basis for further oral discovery of the plaintiff but I do not view this as a sufficient justification for a further physical examination in the circumstances of this action.

[13] It is also noteworthy that the plaintiff has not served any additional reports subsequent to service of the defendants’ reports. The defendants’ reports are also relatively recent. There would not appear to be a requirement for a more current report given Dr. Berbrayer’s conclusions in his November 2015 addendum report.

[14] I am therefore not prepared to exercise my discretion to order this further examination. The defendants’ motion is dismissed.

[15] If the parties are unable to agree on the issue of the costs of this motion they shall provide the court with brief written submissions by June 24, 2016.

Master R.A. Muir DATE: June 3, 2016