Divers v. Laforce, 2020 ONSC 287

Court File and Parties

COURT FILE NO.: 812-17 DATE: 20200115 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Melanie Divers, Plaintiff AND: Lise Laforce and Barry Laforce, Defendants

BEFORE: Rady J.

COUNSEL: Maciek Piekosz, for the plaintiff Thomas Madison, for the defendants

HEARD: January 10, 2020

Endorsement

[1]

Background

This motion by the defendants involves a proposed defence independent medical examination with Dr. Donald Young, a neuropsychologist who practises in Hamilton.

2There is no issue about whether the plaintiff will attend a neuropsychological appointment. She has no quarrel with the defendants’ choice of physician. She wishes, however, to be accommodated because of a variety of personal considerations. She is the mother of two children under the age of 11. She does not have many supports for before and after school child care. She is involved in family law proceedings and alleges that she has been a victim of domestic assault that was witnessed by the children. Criminal proceedings are underway. She and the children are understandably experiencing stress and upset as a result.

3The defendants are willing to pay for transportation expenses to and from Hamilton and for before and after school child care.

4The plaintiff suggests that Dr. Young’s assessment take place in Woodstock or London in order to best accommodate her needs or that another assessor be chosen.

5The defendants respond that Dr. Young says he cannot travel but must conduct the assessment at his office in Hamilton. I pause here to observe that the evidentiary record on this issue is lacking. There is nothing either from Dr. Young himself or from a lawyer in the defendants’ office that addresses Dr. Young’s position.

6However, I am reluctant to dismiss the motion outright or adjourn it for this reason because it would simply delay something to which the plaintiff concedes the defendants are entitled. It would also result in additional expense to the parties and run counter to the philosophy of the Rules of Civil Procedure to require them to return to court with proper evidence. I am prepared to accept Mr. Madison’s representation as an officer of the court.

[7]

Analysis

The court is empowered to impose conditions on the conduct of an independent medical examination and the convenience of the party to be examined is one of several considerations: Manning (Litigation Guardian of) v. Ryerson (1992), 11 C.P.C. (3d) 55 (Ont. Gen. Div.).

8I am not prepared to order that Dr. Young perform the assessment other than in Hamilton, if he has a bona fide reason that Hamilton is his only option. To make such an order may be tantamount to denying the defence its choice of physician, solely for the plaintiff’s convenience: Nutley v. Kuper, [2008] O.J. No. 279 (S.C.J.).

9Nevertheless, this is a situation that cries out for compromise and it is regrettable that counsel could not or would not do so. To my mind, the issue is a practical rather than strictly legal one.

[10]

Disposition

In my view, the most sensible way to proceed is as follows:

i) the defendants will be responsible for the plaintiff’s transportation to and from Hamilton and child care expense if she is unable to arrange for a family member or friend to assist on a gratuitous basis;

ii) if necessary, the neuropsychological examination will be conducted over more than one day and transportation will be arranged and paid for by the defendants so that the plaintiff can leave London in the morning and return to London in the afternoon at times that will respect her child care commitments.

[11]

Costs

I am not inclined to make any award of costs in the circumstances but if the parties wish to persuade me otherwise, I will receive brief written submissions by January 31, 2020.