Babcock v. Destefano 2016 SCJ mini 35

COURT FILE NO.: CV-12-0133-00

DATE: 2016-08-xx

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

REGGIE BABCOCK

Plaintiff

– and –

ANGELO DESTEFANO and WAWANESA MUTUAL INSURANCE COMPANY

Defendants

D. Gilbert, Counsel for the Plaintiff/Responding Party

B. Marta, Counsel for the Defendant/Moving Party, Wawanesa Mutual Insurance Company

HEARD: August 22, 2016

T.D.RAY, J

[1]

Introduction

The defendants move for orders requiring the plaintiff to be examined by several medical specialties.¹ The plaintiff opposes the orders on various grounds including that the defendant requires leave to bring the motion, the request is in violation of the rules of civil procedure, and the motion is brought after the pretrials took place.

[2]

Background

The action arises out of an automobile accident on February 1, 2011 for damages. The defendant Destefano collided with the rear of the plaintiff’s vehicle. The defendant Wawanesa was added January 29, 2013 in order to permit the plaintiff to claim against his OPCF-44R Endorsement for the excess over the $200,000 policy limits the defendant Destefano’s insurer settled with and paid to the plaintiff. The defendant Wawanesa’s exposure is the excess over what has been paid to the plaintiff, up to the policy limits of $1,000,000, assuming the plaintiff’s claim is found to exceed $200,000. The action is scheduled to be tried March 27, 2017 in Belleville for 5 weeks by a jury.

3A brief chronology is as follows:

a. February 26, 2014, the plaintiff was examined for discovery;

b. December 1, 2014, Destefano settled with the plaintiff;

c. March 14, 2015, the plaintiff served the trial record and set the action down for trial;

d. March 26, 2015, Wawanesa consented to a pretrial to take place October 28, 2015;

e. October 15, 2015, pretrial conference with Scott, J, plaintiff filed list of witnesses, Wawanesa did not. Plaintiff confirmed ready for trial in January or February, 2016. Wawanesa not ready for trial until fall of 2016.

f. June 8, 2015, the plaintiff was examined for discovery;

g. September 28, 2015, Wawanesa was “considering a defence medical examination”.

h. January 13, February 2, 2016, Wawanesa cancels a neurological assessment and confirms it will not require providing the plaintiff confirms he will not be serving a neurological report. He does. No such report is part of the plaintiff’s case.

i. January 18, 2016, the Court confirms the trial scheduled for March 27, 2017 for 5 weeks with a jury.

j. January 27, 2016, by this date, plaintiff has served all medical reports, and income loss report; and future care report,

k. February 26, 2016, Notice of Pretrial Conference for June 28, 2016,

l. March 30, 2016, by this date, plaintiff has served future care cost report, further physiatrist report,

m. June 28, 2016,

[4]

Honourable Justice Timothy Ray

Footnotes

1. 1Courts of Justice Act, R.S.O. 1990, c. C43, Section 105