Court File and Parties

COURT FILE NO.: CV-09-388478 MOTION HEARD: 2017-04-10 REASONS RELEASED: 2017-04-13 SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

SUSAN KERWIN Plaintiff

• and-

RICHARD K. STUART Defendant

BEFORE: MASTER M.P. McGRAW

COUNSEL: Rosemary Cosentino, for the Moving Party/Defendant, Richard K. Stuart Emily Casey, for the Respondent/Plaintiff, Susan Kerwin

REASONS RELEASED: April 13, 2017

Reasons for Endorsement

I. Overview

[1] This is a motion by the defendant Richard K. Stuart brought pursuant to section 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and Rule 33 of the Rules of Civil Procedure seeking an order requiring the plaintiff, Susan Kerwin, to: (i) attend a defence medical examination with orthopaedic surgeon Dr. Joel Finkelstein on April 18, 2017; and (ii) attend a defence in-home cost of care assessment with occupational therapist Angela Fleming on April 26, 2017.

[2] This motion first came before me on March 27, 2017. At that time, counsel confirmed that the fixed long trial date for this action (which is proceeding with a companion action) is October 2, 2017 with a pre-trial scheduled for July 5, 2017.

[3] Counsel also advised that the earliest dates for the proposed examination and assessment were April 18, 2017 (Dr. Finkelstein) and May 23, 2017 (Ms. Fleming). Therefore, granting the relief requested on this motion would have resulted in the delivery of expert reports and potential responding reports contrary to the timelines in Rule 53.03(2) and may have resulted in an adjournment of the fixed long trial date. Pursuant to Rule 37.02(2)(c), a Master does not have jurisdiction to grant an order which may require extension or abridgement of a time prescribed by a Judge, which includes a fixed long trial date.

[4] Accordingly, in my Endorsement dated March 27, 2017, I directed the parties to schedule an appointment in Long Trial Scheduling Court to obtain directions with respect to whether or not I should hear this motion. I agreed to do so on an urgent basis if a Judge presiding over Long Trial Scheduling Court so directed.

[5] The parties appeared before Madam Justice Wilson on March 31, 2017. In her Endorsement of that day, Madam Justice Wilson acknowledged that if the relief requested on this motion is granted it may potentially affect the fixed trial date and that the parties would require leave of the trial Judge pursuant to Rule 53.03(4) with respect to the service of any reports generated from the examination and/or assessment requested on this motion, if ordered. Justice Wilson ultimately directed that I hear this motion on its merits on an urgent basis.

[6] It is within this context that this motion proceeded before me and these Reasons for Endorsement are provided.

II. Background

[7] This action arises out of a motor vehicle accident which occurred on October 28, 2007 in East Gwillimbury, Ontario. The plaintiff, Ms. Kerwin, was a passenger in a vehicle which was struck by a vehicle driven by the defendant, Mr. Stuart.

[8] This action is being tried together with a companion action arising out of a second motor vehicle accident which occurred on September 15, 2008 in Newmarket, Ontario in which the plaintiff was the driver of a motor vehicle struck by a vehicle driven by the defendant, Hans Vogt. Mr. Vogt did not participate in this motion except to advise through counsel for the defendant that he supported the relief sought by Mr. Stuart.

[9] The plaintiff alleges that as a result of these accidents she has sustained and continues to suffer from permanent physical injuries and significant psychological and psychiatric trauma. In both actions, the plaintiff seeks general damages of $300,000 and special damages of $1,000,000 plus interest and costs.

[10] In 2013, the plaintiff was deemed to have sustained a catastrophic impairment from a mental/behavioural perspective under the Statutory Accident Benefits Schedule. The plaintiff settled her claims against her accident benefits insurer, Certas Home and Auto Insurance Company by way of assumption of policy from State Farm Mutual Automobile Insurance Company (“Certas”) for payment in the amount of $1.1 million. This settlement was approved by Order of the Honourable Mr. Justice T. Archibald dated June 29, 2015.

[11] The plaintiff has continued to complain of neck, shoulder, knee and hip pain and corresponding paralysis. The plaintiff has also been under ongoing psychiatric care including numerous admissions at a psychiatric facility. She last attempted to return to work in 2012 but has been unable to do so and more recently moved out of an assisted living facility into her own residence in Newmarket, Ontario.

[12] In the lengthy history of the accident benefit proceedings, this action and the companion action, given the complex nature of Ms. Kerwin’s alleged ongoing physical and psychological impairments, she has been examined and assessed by numerous medical and non-medical professionals. These professionals include her family physicians and various physiatrists, psychiatrists, psychologists and occupational therapists.

[13] These examinations and assessments of Ms. Kerwin have also resulted in the production of numerous medical and non-medical reports. In particular, during the accident benefits proceedings:

(i) the plaintiff’s then occupational therapist Nicole Sharma provided Occupational Therapy Assessment Reports dated January 31, 2012 and March 6, 2013;

(ii) at the request of Certas, occupational therapist Maria Puopolo provided an Occupational Therapy Assessment Report dated January 29, 2013; psychiatrist Dr. A. Zielinsky provided a report dated February 27, 2013; physiatrist Dr. Samuel Wong provided a report dated May 26, 2008; orthopaedic surgeon Dr. G. Soon-Shiong provided a report dated January 26, 2010; and physiatrist Dr. Kathleen Armitage provided reports dated April 18, 2011 and January 21, 2013;

(iii) through Ms. Kerwin’s former counsel, occupational therapist Eva Madras provided a substantial Future Care Cost Analysis Report dated December 5, 2013 based on a comprehensive review of the plaintiff’s medical records and an in-person future costs of care assessment conducted on October 29 and 31, 2013 (the “Madras Report”); and psychiatrist Irina Valentin provided a report dated March 27, 2014;

(iv) at the request of the plaintiff’s former counsel, Collins Barrow prepared a Cost of Care Report dated December 18, 2013 with respect to Ms. Kerwin’s estimated future costs of care at February 18, 2014 (the “Collins Barrow Report”).

[14] More recently, at the request of her present counsel, Ms. Kerwin was assessed on March 16, 2016 by physiatrist Dr. Angela Mailis. In her report dated May 12, 2016, Dr. Mailis concluded that Ms. Kerwin suffers from DSM-IV somatoform chronic pain disorder associated with psychological factors and that Ms. Kerwin is and will remain indefinitely permanently and seriously impaired, primarily on the basis of her psychiatric condition and less on the basis of her pain condition in all aspects of her life (the “Mailis Report”). The Mailis Report is the only expert report which the plaintiff has obtained in this action.

[15] Ms. Kerwin has also been examined by sports medicine physician Dr. Christopher Fortier, most recently on October 18, 2016. The plaintiff was previously under Dr. Fortier’s care in 2014. Dr. Fortier has not provided a report but his records set out his assessment that Ms. Kerwin has chronic pain associated with a degenerative meniscal tear in her knee.

[16] On May 2, 2016, counsel for the defendant requested that Ms. Kerwin attend at defence cost of care assessments with physiatrist Dr. S.M. Liao and Dr. Finkelstein, an orthopaedic surgeon. Counsel for the plaintiff advised that Ms. Kerwin would only attend one of these assessments. Counsel for the defendant agreed to proceed with an examination by Dr. Liao but did not withdraw their request that she also be examined by Dr. Finkelstein. Counsel for the defendant further advised that they would bring a motion with respect to this rejected request.

[17] Dr. Liao examined Ms. Kerwin on October 10, 2016. In her report dated November 15, 2016, Dr. Liao concluded that from a physical point of view, Ms. Kerwin does not have any impairment that would prevent her from being gainfully employed and carrying out all of her pre-accident housekeeping and homemaking activities or would require ongoing treatment or medication (the “Liao Report”).

[18] On November 16, 2016, counsel for the defendant requested that Ms. Kerwin meet with Ms. Fleming for an in-home cost of care assessment on January 24, 2017. Ms. Kerwin advised through her counsel that she would not participate in this assessment.

[19] An assessment by psychiatrist Dr. I. Rosebush at the request of counsel for Mr. Vogt in the companion action was scheduled for February 7, 2017. No report has been provided to date.

III. The Law and Analysis

Overview

[20] Section 105 of the Courts of Justice Act provides as follows:

(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.

[21] Rule 33.02(2) of the Rules of Civil Procedure provides that the court may order a second examination or further examination on such terms respecting costs and other matters as are just.

[22] Counsel agreed that the leading principles which apply to the relief sought by the defendant are summarized in Bonello v. Taylor, 2010 ONSC 5723. At paragraph 16 of Bonello, D.M. Brown J. (as he then was) sets out the principles which the court must consider when determining if trial fairness requires that the court exercise its discretion to permit a party to conduct additional examinations and assessments:

(i) 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;

(ii) 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;

(iii) 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;

(iv) 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;

(v) 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;

(vi) 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,

(vii) 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.

[23] Counsel also agreed that while the Bonello principles are relevant to both of the defendant’s requests, there are additional considerations with respect to the request for a non-medical in-home assessment by Ms. Fleming, an occupational therapist. These additional considerations were set out by the Divisional Court in Ziebenhaus (Litigation guardian of) v. Bahlieda, 2014 ONSC 138; aff’d 2015 ONCA 471.

[24] In Ziebenhaus, the Divisional Court held that the court has an inherent jurisdiction to order non-medical examinations and assessments. In exercising this discretion, the court must assess the defendant’s request to determine if the proposed examination or assessment is necessary in the interest of trial fairness and justice and in order to meet the plaintiff’s case (see paras. 100-102). The Divisional Court further held that there is no “matching principle” such that the mere fact that a plaintiff obtains a particular expert report is not sufficient to satisfy the test for the exercise of the court’s inherent jurisdiction and there is no automatic rule that “levels the playing field” by providing that a defendant is entitled to each type of report that is obtained by a plaintiff (see para. 102).

[25] In affirming the Divisional Court’s decision in Ziebenhaus, the Court of Appeal stated that the court’s “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” (see para. 13).

[26] There has been considerable discussion with respect to whether or not a Master has the inherent jurisdiction to order a non-medical assessment (for example, see Master Muir’s decision in Boulet v. Sir Group, 2016 ONSC 5379). In this regard, counsel advised that they did not take issue with my jurisdiction to hear this motion. I also rely on Justice Wilson’s direction that I hear this motion and as Master Muir did in Boulet, I further rely on the authority in Desbiens v. Mordini, [2002] O.J. No. 5975 (S.C.J.) at para. 6; aff’d [2003] O.J. No. 368 (Div. Ct.)](https://www.canlii.org/en/on/onscdc/doc/2003/2003canlii49501/2003canlii49501.html).

Request for defence medical examination with orthopaedic surgeon

[27] The defendant submits that the complaints which the plaintiff has put at issue in this action, as expressed by the plaintiff herself, are predominantly her physical injuries and limitations. This is in contrast to the characterization of the plaintiff’s complaints by her own counsel as predominantly psychological. In any event, the damages sought by the plaintiff in this action have not been particularized.

[28] Counsel for the defendant further submits that an orthopaedic examination by Dr. Finkelstein is required in order to assess Ms. Kerwin’s ongoing complaints of physical injuries and impairments including the meniscus tear and other issues raised in the records of Dr. Fortier, the possibility that she requires surgery, the cause of her arthritis and her complaints of related paralysis. Counsel for the defendant submits that an orthopaedic examination and report from Dr. Finkelstein is required in addition to the physiatrist report already provided by Dr. Liao given the differences between the two specialties. In particular, an orthopaedic surgeon specializes in the repair of bones, joints and ligaments and the musculoskeletal system, while a physiatrist specializes in restoring optimal functions to people with injuries to muscles, bones, tissue and nervous systems (see Wieland v. ALJA Construction, 2014 ONSC 549 at para. 10 and Maria-Anthony v. Financial Transport Inc. et al, 2016 ONSC 6790 at paras. 23-24).

[29] The defendant ultimately submits that without an expert report from Dr. Finkelstein, the defendant will be unable to present expert evidence dealing with the extent and nature of the plaintiff’s alleged physical injuries such that the plaintiff’s evidence may go untested and unchallenged at trial resulting in significant prejudice.

[30] Applying the Bonello principles to the defendant’s request, while it is clear that Ms. Kerwin’s alleged physical injuries and physical impairments are at issue in this action, I am not satisfied that trial fairness requires that she be examined by Dr. Finkelstein. In particular, I agree with counsel for the plaintiff that any report by Dr. Finkelstein would simply be provided with a view to corroborating the existing unequivocal opinion of Dr. Liao.

[31] In the comprehensive Liao Report, Dr. Liao unequivocally concludes that Ms. Kerwin has no limitations from a “physical point of view” which would prevent her from returning to her pre-accident activities. In my view, in the face of such an unambiguous opinion from Dr. Liao with respect to Ms. Kerwin’s physical condition, there is little, if anything, that a further report from Dr. Finkelstein could add other than to corroborate Dr. Liao’s conclusions.

[32] This is not a case (as it was in Bonello) where the plaintiff has delivered any additional expert reports since Dr. Liao’s assessment or where there is any evidence that Ms. Kerwin’s physical condition has changed or deteriorated since the delivery of the Liao Report. In fact, the Liao Report is the most recent expert report delivered in this action.

[33] Further, while there is no automatic “matching principle”, the plaintiff has not delivered an orthopaedic report. The only orthopaedic report upon which the plaintiff could rely is the report of Dr. G. Soon-Shiong dated January 26, 2010 delivered during the accident benefits proceedings which will be over 7 years old by the trial date. This dated report has been updated by the comprehensive Mailis Report which was obtained by the plaintiff and delivered in this action prior to the Liao Report.

[34] I am mindful of the differences in the respective expertise of Dr. Liao and Dr. Finkelstein. However, I am not convinced that any different or additional expertise of Dr. Finkelstein is necessary or sufficiently material in the circumstances to overcome my conclusions on the other Bonello factors set out above, particularly with respect to the corroboration of the Liao Report.

[35] Based on the above considerations and analysis, I conclude that trial fairness does not require that Ms. Kerwin attend an examination with Dr. Finkelstein nor is a report from Dr. Finkelstein required to assist the defendant in meeting the plaintiff’s case. Accordingly, the defendant’s motion requesting that Ms. Kerwin attend at an examination with Dr. Finkelstein on April 18, 2017 is dismissed.

Request for defence non-medical in-home cost of care assessment with occupational therapist

[36] As set out above, the test in Ziebenhaus with respect to the defendant’s request for a non-medical in-home cost of care assessment is more stringent than the test in Bonello which applies to both requests. However, the Divisional Court in Ziebenhaus held that when considering whether to exercise its discretion, a court must analyze the specific facts of each case to determine whether trial fairness and justice require any particular relief. In this regard, the facts of this case which are relevant to the analysis of the defendant’s request for a non-medical assessment are materially different from those related to its request for an additional medical assessment.

[37] Although the plaintiff is advancing a future costs of care claim in this action, putting future costs of care at issue, the plaintiff has not delivered a cost of care assessment report from an occupational therapist in this action. However, the plaintiff has access to numerous reports from various occupational therapists produced during the accident benefits proceedings. This includes the Madras Report.

[38] The Madras Report, dated December 5, 2013, is approximately 120 pages in length and provides a comprehensive assessment by Ms. Madras, an occupational therapist, with respect to Ms. Kerwin’s future costs of care. At the time of the Madras Report, Ms. Kerwin resided in an assisted living facility with access to 24-hour attendant care support. The Madras Report concluded that Ms. Kerwin would require 24-hour care for the forseeable future, either while continuing to reside at an assisted living facility or living in her own residence with 24-hour agency care.

[39] Relying on the Madras Report, the Collins Barrow Report estimated that the present value of Ms. Kerwin’s future costs of care as at February 18, 2014 were approximately $18,400,000 (own residence with 24-hour agency care) and $16,300,000 (assisted living facility). After deducting the estimated liability of the no fault insurer, the estimated liability of the defendant for future costs of care was approximately $16,600,000 and $14,500,000, respectively.

[40] When pressed, counsel for the plaintiff conceded that although the plaintiff does not intend to file an updated future cost of care report from an occupational therapist or present value calculations prior to trial, the plaintiff “could rely” on the Madras Report in support of the plaintiff’s claims for future costs of care at trial. Counsel stated that she “would not rule it out”. In any event, the Madras Report, along with the other reports from the accident benefits proceedings are available for the plaintiff to rely upon at trial.

[41] In short, the plaintiff is advancing a significant (though non-particularized) claim for future costs of care, relying upon a cost of care assessment report which will be almost 4 years old by the time of trial. Since the preparation of the Madras Report, there have been material changes in Ms. Kerwin’s condition and living circumstances which are relevant to a cost of care assessment. These include Ms. Kerwin’s admission on her examination for discovery in 2016 that her psychological condition has improved and the fact that she now lives on her own in her own residence outside of an assisted living facility.

[42] The defendant submits that in these circumstances, trial fairness requires that I exercise my discretion to order that Ms. Kerwin attend an assessment with Ms. Fleming so that the defendant will have sufficient, updated expert evidence in order to meet the plaintiff’s case, if, as expected, the plaintiff relies on the outdated Madras Report. Counsel for the defendant submits that it would be unfair for the defendant to proceed to trial without any updated expert evidence.

[43] The plaintiff submits that the defendant cannot meet the stringent test in Ziebenhaus on the basis that the Liao Report provides an unequivocal opinion that Ms. Kerwin has no physical limitations and can return to her pre-accident activities which provides the defendant with a full answer to meet the plaintiff’s case. Counsel for the plaintiff further submits that any report from Ms. Fleming will be with a view to simply corroborating the Liao Report.

[44] However, the Liao Report explicitly assessed Ms. Kerwin from “a physical point of view”. Dr. Liao did not draw any conclusions about Ms. Kerwin from a psychological or psychiatric point of view. As counsel for the plaintiff conceded, Ms. Fleming is qualified to assess any effect of Ms. Fleming’s ongoing psychological and psychiatric complaints upon her ability to carry out her daily activities and how this may affect her future costs of care. This is particularly relevant given that the plaintiff’s counsel advises that Ms. Kerwin’s claims in this action are predominantly with respect to her alleged psychological and psychiatric trauma.

[45] In light of the changes in Ms. Kerwin’s psychological, psychiatric and living conditions since the now outdated Madras Report and the limitation of the Liao Report to her alleged physical impairments, it is my view that the proposed in-home assessment by Ms. Fleming would yield additional information regarding Ms. Kerwin’s current condition and circumstances which would enhance the understanding of the Madras Report, the Mailis Report, the Liao Report and the plaintiff’s claims for future cost of care generally. Accordingly, I disagree with the plaintiff that any report from Ms. Fleming would simply be with a view to corroborating the Liao Report or that the Liao Report is a full answer to the plaintiff’s case. Rather, in my view, the defendant would be at a disadvantage at trial without such expert evidence to meet the plaintiff’s case which would be unfair in the circumstances.

[46] In this regard, the present case is distinguishable from the Jack decision (decided together with Ziebenhaus) where the Divisional Court concluded that an additional report from a chiropractor requested by the defendants was not necessary to further trial fairness and justice where it would simply function to corroborate an existing expert opinion from a defence physiatrist on the same issue, functional abilities. By contrast, the proposed report by Ms. Fleming would focus on different issues than Ms. Kerwin’s physical impairments as in the Liao Report namely, any effect of the plaintiff’s psychiatric and psychological condition on her future costs of care.

[47] The facts of the present case are further distinguishable from the Jack decision in Ziebenhaus in that the defendant in that case was seeking to respond to an expert report filed relatively recently by the plaintiff in that action. Here, the defendant is seeking a further non-medical assessment to update a cost of care report that is over 3 years old filed in separate accident benefit proceedings where there have been material changes in the plaintiff’s condition and living arrangements.

[48] For similar reasons, the facts of the present case are also distinguishable from those in Boulet and Klotz v. Hasham, 2017 ONSC 1132, on which the plaintiff relies. In both cases, Master Muir found that the facts were similar to the Jack decision and therefore, the result was the same as in Ziebenhaus. In my view, that is not the case here.

[49] The plaintiff also submits, citing Bonello, that the court should not grant the non-medical assessment by Ms. Fleming because it was not recommended by Dr. Liao and is not required as a diagnostic aid by a health practitioner. I do not accept this submission on the basis that the Court of Appeal in Ziebenhaus has now rejected any requirement for a non-medical assessment to be characterized as a diagnostic aid to a health practitioner (see paras. 8-9).

[50] The plaintiff further submits that it would be contrary to trial fairness for me to exercise my discretion to order the requested assessment by Ms. Fleming given that the plaintiff would then have no choice but to deliver a responding cost of care assessment report which may result in an adjournment of the fixed long trial date and a delay the trial of her actions. While this is one of the considerations set out in Bonello, it is not relevant in the present case given that any issues with respect to the effect of my granting any of the relief sought on this motion was taken into consideration by Justice Wilson when she directed that I hear this motion on its merits. Any further issues regarding the delivery of expert reports and the fixed long trial date will be dealt with by the trial Judge (as Justice Wilson indicates in her Endorsement) or a Judge presiding at Long Trial Scheduling Court. Plaintiff’s counsel also submitted that it was contrary to trial fairness that the defendant delayed in its request for the assessment by Ms. Fleming, however, I note that the plaintiff’s change of counsel on two occasions has contributed to the overall delay in these proceedings.

[51] Plaintiff’s counsel also advises that Ms. Kerwin does not trust occupational therapists and does not feel comfortable having one attend her home. I am mindful of Ms. Kerwin’s concerns, her ongoing complaints and her circumstances. However, I do not find that the requested in-home assessment by Ms. Fleming is, as required under the Bonello principles, unduly onerous in light of the number of defence examinations already conducted. The proposed assessment by Ms. Fleming does not require Ms. Kerwin to leave her residence and would last between 3-5 hours with regular breaks as required by Ms. Kerwin. She has also only attended one defence examination in this action, by Dr. Liao.

[52] Moreover, Ms. Kerwin is claiming $1,300,000 in this action which includes a significant, non-particularized claim for future costs of care, which she has put at issue. When weighed against the prejudice that the defendant would suffer from not having updated, expert evidence necessary to meet the plaintiff’s case, in my view, this balancing favours the defendant.

[53] Having considered and analyzed the specific facts of this case, it is my view that trial fairness and justice require that Ms. Kerwin attend at and participate in an in-home cost of care assessment with Ms. Fleming on April 26, 2017 which is required for the defendant to meet the plaintiff’s case at trial. In arriving at this conclusion, I am mindful of the Court of Appeal’s direction that the court’s discretion and jurisdiction to grant requests for non-medical assessments should be exercised sparingly and in only the clearest of cases where the moving party demonstrates that it is necessary to ensure justice and fairness. In my view, the defendant has demonstrated that the non-medical assessment is necessary to ensure justice and fairness and that this is a clear case which calls for the exercise of this discretion.

[54] Accordingly, the defendant’s motion requesting that Ms. Kerwin attend at an in-home cost of care assessment with Ms. Fleming on April 26, 2017 is granted.

VI. Disposition

[55] I order as follows:

(i) the defendant’s motion requesting that Ms. Kerwin attend at an orthopaedic examination with Dr. Finkelstein on April 18, 2017 is dismissed; and

(ii) Ms. Kerwin shall attend at and participate in an in-home cost of care assessment not to exceed 5 hours at her current residence with Ms. Fleming on April 26, 2017 on such other terms as may be agreed by counsel and at the defendant’s expense.

[56] If the parties are unable to agree on the costs of this motion, counsel may file written costs submissions of no more than 3 pages (excluding costs outlines, which counsel exchanged at the conclusion of the motion) with me through the Masters Administration Office on or before May 15, 2017.

Released: April 13, 2017 Master M.P. McGraw