Court File and Parties
COURT FILE NO.: CV-17-0068-0000
DATE: January 30, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SHEENA McGOWAN Plaintiff
– and –
MICHAEL GREEN Defendant
Joseph Dart, for the Plaintiff
R. Steven Baldwin, for the Defendant
HEARD: January 23, 2020
Tausendfreund, J.
ENDORSEMENT
[1] The Defendant brings this motion for an order that the Plaintiff undergo a medical-legal examination with Dr. Donald Young, a neuropsychologist in Mississauga. The Plaintiff resides in Ottawa.
[2] As it turns out, the issue between the parties is not whether the Defendant is entitled to an independent medical exam of the Plaintiff by a physician of her choice. The Plaintiff does not object to that request in a general sense. At issue is the required travel of about 450 km for the Plaintiff to attend for such an examination and the represented deleterious impact such long distance travel may have on her medical and mental state.
[3] The Defendant states that in personal injury actions, Defendants generally have the right to choose their own examiner. Dr. Young does not professionally travel east of the GTA. The Defendant agrees to pay for reasonable travel expenses which would include hotel accommodation.
[4] The Plaintiff advised the Defendant that her travel from Ottawa to Mississauga will likely be highly inconvenient and possibly medically detrimental. On this travel issue, the Plaintiff produced an opinion from Dr. Duncan Day, her treating neuropsychologist. He had diagnosed the Plaintiff with a major neurocognitive disorder due to a traumatic brain injury and major depressive and adjustment disorders. He stated:
The journey to Mississauga for someone struggling with neurocognitive disorder, significant pain disorder, limited stamina…and motor vehicle anxiety will in my view be harmful.
…not only will she likely experience anticipatory distress and distress on the day of the assessment, there will likely be a period of recovery that could be an additional “unseen” cost on her in the aftermath…the journey will in all likelihood create circumstances where the information obtained by an assessment will be a poor reflection of her actual status…
In addition to cognitive and coping difficulties, Ms. McGowan struggles with anxiety (driving anxiety and social anxiety), depression, significant headache pain and limited stamina. The requirement of travel for the assessment will, in my view, cause a worsening of these symptoms…[this] could result in setbacks from the therapeutic gains made thus far.
[5] Dr. Day acknowledged that in 2018, three years after the accident, the Plaintiff traveled to Jamaica for a destination wedding. He also confirmed that the Plaintiff has travelled by car several times from Ottawa to Kingston for appointments with him, but that she generally was a passenger on those occasions.
[6] The Plaintiff’s family physician is Dr. John Coady whose office is in Belleville. The Plaintiff has seen him professionally several times since her car accident. The evidence is unclear as to the Plaintiff’s travel arrangements on those occasions. Dr. Coady provided a letter dated October 23, 2019 in which he stated that the Plaintiff presently has difficulty travelling due to her ongoing post-concussion symptoms.
Analysis
[7] S.105 of the Courts of Justice Act states that where a party’s physical or mental condition is in question in a proceeding, the court may order that the party undergo a physical or mental examination by one or more health practitioners.
[8] Rule 33 of the Rules of Civil Procedure allows an adverse party to bring a motion for an order under s.105.
[9] Pierce, J. in Nutley v. Kuper, 2008 CanLII 35692 at para 11 summarized the principles guiding the determination of the location of a defence medical in tort proceedings:
• There is no general rule as to the place of the examination: Lamarr v. Marsman et al. (1975), 1975 CanLII 335 (ON SC), 8 O.R. (2d) 583 (H.C.J.) P.2;
• Prima facie, the Defendant has a right to select the physician to perform the examination: Smith v. Liberty Life Assurance Co. of Boston, 2003 CanLII 11628 (ON SC), [2003] O.J. 2966 (OSC), para. 14;
• As the Defendant’s medical expert may well be the only medical witness for the defence at trial, the courts should not unreasonably interfere with the choice of the medical assessor where the assessment is not unreasonably inconvenient: Manning v. Ryerson, [1992] O.J. 1392;
• The place of examination should be determined by what is convenient and just: Manning, ibid at para 5.
[10] To that list I would add:
• The convenience of the party to be examined is a factor to be considered: Baker v. Hayes, 1991 CarswellOnt 3556 at para 2.
• “The convenience of the party” includes providing adequate transportation, as the party’s circumstances require.
[11] I now turn to the application of these principles to the facts before me.
[12] The uncontradicted evidence of the Plaintiff’s treating physicians go beyond raising a concern about a level of inconvenience, if the Plaintiff were asked to travel from Ottawa to Mississauga. Dr. Day gave the opinion that such a trip may result in the worsening of the Plaintiff’s symptoms and could result in a set back of her therapeutic gains she achieved in her rehabilitation to date.
[13] I am mindful of the Defendant’s right to choose his medical expert. That choice, however, is not unfettered, particularly if the medical well-being of the patient might be compromised. That would bring “into play” the comment of Hockin, J. in Manning, supra, that the arrangement of a defence medical is “not to be unreasonably inconvenient”.
[14] I also note that there is no evidence from the Defendant as to why it must be Dr. Young, or “bust”. There is evidence before me that there are well qualified neuropsychologists in Ottawa, Kingston and other locations. I note in particular the reference to the location of AssessMed in Ottawa which is said to be 600 meters from the Plaintiff’s home. This is the firm with which Dr. Young is associated. It has ongoing availability of neuropsychological assessment dates within reasonable time periods.
[15] In short, there is no evidence that the Defendant cannot retain a neuropsychologist in Ottawa or any other destination closer to Ottawa than the GTA.
[16] In balancing these competing interests, this motion is dismissed, with leave to the defendant to arrange another medical legal examination of the Plaintiff, keeping in mind the above comments. Costs to the Plaintiff in any event of the cause.
Tausendfreund, J.
Released: January 30, 2020
COURT FILE NO.: CV-17-0068-0000
DATE: January 30, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SHEENA McGOWAN Plaintiff
– and –
MICHAEL GREEN Defendant
ENDORSEMENT
Tausendfreund, J.
Released: January 30, 2020