Superior Court of Justice - Ontario

Re: Nguyen v. Kojo CV-09-097765 (Newmarket)

Motion Heard: March 30, 2017

Before: Master R.A. Muir

Counsel: Dave Dhillon and Stephen Macaulay for the statutory third party Jono Schneider for the plaintiff

Endorsement

[1] This motion is brought by the statutory third party (“Wawanesa”) 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. Wawanesa seeks an order requiring the plaintiff to attend a defence physiatry examination on April 10, 2017. Counsel for Wawanesa advised the court that a report would be available within two weeks of the examination. The plaintiff is opposed.

[2] Due to the pending trial date, this motion had to be heard and decided on an expedited basis.

[3] This action arises from a motor vehicle accident on February 13, 2008. As a result of the accident, the plaintiff claims to have suffered various physical and psychological injuries. The plaintiff alleges, among other things, that these injuries have seriously affected his ability to work. The plaintiff seeks significant damages.

[4] The plaintiff argued that Wawanesa required leave to bring this motion pursuant to Rule 48.04 as Wawanesa had previously agreed to pre-trial and trial dates. In my view, leave is not required for the same reasons I expressed in Arunasalam v. State Farm Mutual Automobile Insurance Company, 2015 ONSC 5235 at paragraphs 6 to 23.

[5] The plaintiff also took the position that the relief Wawanesa is seeking should be denied due to the various defaults on the part of its insured such as his failure to serve an affidavit of documents and attend at discovery. The plaintiff also points to default on the part of Wawanesa in serving an affidavit of documents and producing a copy of the defendant’s insurance policy. I do not agree. Wawanesa should not be prejudiced by the actions of its insured. In fact, the default on the part of the defendant is the very reason Wawanesa is a party to this action. I do not view Wawanesa’s default as a basis for denying it the right to bring this motion. The plaintiff has remedies under the Rules. In fact, he has brought such a motion returnable today and Wawanesa has agreed to provide a copy of the insurance policy to the plaintiff within 10 days.

[6] In my view, the outcome of this motion turns on the fact of delay on the part of Wawanesa. Delay on the part of a party requesting a medical examination and resulting prejudice to a plaintiff is a basis for refusing such relief. See Lawrence v. Primmum Insurance Company at paragraph 12.

[7] This action has been pending for more than seven years. Wawanesa has been a party to this action since January 2016. However, the action was being defended by Wawanesa on behalf of its insured by the same counsel since October 2011. During this time period, neither the defendant nor Wawanesa made any request for a defence medical examination of the plaintiff. Instead, the defendant and Wawanesa chose to rely on assessments prepared on behalf of the plaintiff’s accident benefits insurer, State Farm.

[8] The plaintiff served various reports between 2008 and 2011. Those reports include various opinions to the effect that the plaintiff is unable to return to work.

[9] The plaintiff served additional reports on December 21, 2016 and December 23, 2016. These were the first reports served by the plaintiff since 2011.

[10] Wawanesa did not immediately request a defence medical examination despite the fact that a pre-trial was initially scheduled for March 20, 2017 (now rescheduled for May 9, 2017) and the trial of this action was scheduled to take place during the May 2017 trial sittings commencing May 15, 2017. These dates had been scheduled by the parties in August 2016.

[11] Instead, Wawanesa waited nearly three months, until March 8, 2017, to request a medical examination of the plaintiff. This was 12 days before the scheduled pre-trial. The proposed date for the examination was March 15, 2017, just three business days before the pre-trial. Even if a report could have been prepared in time for the pre-trial, the plaintiff would not have an opportunity to provide a meaningful response.

[12] Most importantly, the plaintiff’s evidence is that his chronic pain expert has no appointments available until June 2017, several weeks after the scheduled trial date. In my view, there is a real risk that the plaintiff will be unable to respond before the scheduled trial date. The plaintiff will be prejudiced either by going to trial without a response or having his long pending day in court pushed further down the road.

[13] If it were not for the pending trial I would order the plaintiff to attend the requested examination. The plaintiff served new reports in December 2016. These were the first reports served by the plaintiff in over five years’ time. Wawanesa and the defendant have not conducted an independent medical examination of the plaintiff for the purposes of this action. In my view, a defendant has a right to an independent examination for the purposes of this action, as does Wawanesa. It is also important for the court to have current medical evidence. See Arunasalam at paragraph 26.

[14] For these reasons, the plaintiff need not attend the April 10, 2017 examination. In the event that the trial of this action does not take place during the May 2017 sittings and is adjourned to the November 2017 sittings or later, the plaintiff shall attend a defence examination with a physiatrist forthwith after the trial date has been adjourned.

[15] Wawanesa shall provide the plaintiff with a copy of the insurance policy within 10 days. The relief the plaintiff is seeking against the defendant Kojo is adjourned to my list on May 4, 2017 for 15 minutes. The plaintiff shall send correspondence to Mr. Kojo advising him of the new return date and bring a copy of that correspondence to court on May 4, 2017.

[16] In my view, the plaintiff has been the more successful party on the matters before the court today. I refused to order the plaintiff to attend at the April 10, 2017 examination and I ordered Wawanesa to produce the insurance policy. However, the plaintiff will be required to attend the defence medical examination if the trial is adjourned. Wawanesa was successful on the issues related to Rule 48.04 and the plaintiff’s argument that this motion should be dismissed due to Wawanesa’s default under the Rules. The noting in default of Wawanesa was also set aside. Some of the plaintiff’s costs relate to the relief sought against the defendant. For these reasons, the costs requested by the plaintiff should be substantially reduced.

[17] I see no basis for substantial indemnity costs. There is no evidence of reprehensible behaviour on the part of Wawanesa. I also agree with Wawanesa that the plaintiff’s costs are excessive for a motion of this nature, especially when compared to Wawanesa’s costs.

[18] For these reasons, it is fair and reasonable for Wawanesa to pay the plaintiff’s costs of these motions fixed in the amount of $3,000.00 inclusive of HST and disbursements. These costs shall be paid by May 1, 2017.

Master R.A. Muir DATE: March 30, 2017