COURT FILE NO.: C-8232/19OT

DATE: 2020-12-16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Monique Severin

Plaintiff

– and –

Perry O. Barker

Defendant

Lazar A. Andjelkovic, for the Plaintiff

James C. Simmons, for the Defendant

HEARD: December 11, 2020

DECISION ON MOTION

GAUTHIER, J.

Overview

[1] The defendant (“Barker”) has brought a motion for:

a. leave under Rule 48.04(1) to bring the motion;

b. for an order compelling the plaintiff (“Severin”) to attend an independent medical examination with Dr. Freedman, in Mississauga; and

c. for an order extending the time to serve the expert report of Dr. Freedman, if the relief in (a) and (b) above is granted.

[2] Severin opposes the motion.

Facts

[3] Severin was a passenger on Barker’s motorcycle when it was involved in a collision with another vehicle operated by one Kalevi Leppanen on July 14, 2013.

[4] The Statement of Claim in this matter was issued on April 8, 2014. It alleges that, as a result of the accident, Severin suffered, among other injuries, the following:

… serious impairment of mental, psychological, and neurocognitive functions, including but not limited to, a traumatic brain injury and injuries to her head, face, neck, and nerves throughout her body. These injuries have allegedly been accompanied by headaches, serious cognitive dysfunction, dizziness, shock, anxiety, depression, emotional trauma, chronic pain, insomnia, weakness, diminished energy, and stiffness. It is alleged that these injuries have impacted the Plaintiff’s housekeeping and home maintenance capacity, her ability to enjoy the amenities of life, and her earning capacity.

[5] The Statement of Defence was delivered on April 13, 2015.

[6] Examinations for Discovery were conducted on March 29, 2016.

[7] The trial record was passed on or about January 12, 2018. The matter was set down for trial on March 9, 2018 (as per the defendant’s material) or on March 19, 2018 (as per the plaintiff’s material).

[8] A pre-trial was originally scheduled for April 8, 2019. It was rescheduled at the request of the defendant to August 27, 2019, then further rescheduled to October 8, 2019, again at the request of the defendant. Those adjournments were the result of difficulties scheduling the defence orthopedic assessment.

[9] On October 8, 2019, the pre-trial was begun. The pre-trial judge’s endorsement reads as follows:

Defendant wants a Neuro/Psycho report. Adjourned to a date for continuation of pre-trial before Cornell J.

[10] On February 5, 2020, plaintiff’s counsel corresponded with defendant’s counsel confirming that the trial would proceed on September 28, 2020.

[11] The matter had been placed on a trial list for the September 28, 2020 trial sittings but that date was vacated due to the COVID-19 pandemic and scheduling priorities. The case was put to the November 4, 2020 assignment court to set a date for continuation of the pre-trial. Counsel could not agree on the date to be set therefore the matter has been adjourned for January 8, 2021 for a judge to resolve the issue of the new pre-trial date.

[12] On February 21, 2020 the defendant confirmed the request that the plaintiff attend for a neuropsychological assessment with Dr. Larry Freedman, in Mississauga, on March 4, 2020. The request was denied by the plaintiff, who opposed an in-person neuropsychological examination.

[13] The plaintiff proposed that the raw neurological data of its expert, Dr. Kurzman, be provided to and interpreted by a medical expert of the defendant’s choosing. The defendant is not content with that offer.

The Assessments

[14] Between the date of the accident and May 2019, the plaintiff underwent a number of assessments for the accident benefits insurer, and she was examined by her own family physician on several occasions.

[15] The plaintiff’s family doctor, Dr. Simon Cote, provided an OCF-3 Disability Certificate dated September 19, 2013, indicating that Severin had suffered from an impact to the head, loss of consciousness, amnesia, memory loss, difficulty concentrating and focusing, and dizziness.

[16] On October 9, 2013 and November 4, 2013, Dr. Cote also offered that the plaintiff experienced post traumatic tremors, hand and head tremors, shakiness, difficulty focusing and post concussive syndrome.

[17] Dr. Cote wrote on August 22, 2018, that Severin continued to suffer from passive suicidal ideation, generalized anxiety with agoraphobic features.

[18] Severin underwent four psychological and neuropsychological assessments by Dr. Mark Watson, at the request of the accident benefits insurer: December 5, 2013, November 16, 2015, January 7, 2016 and May 25, 2016. Dr. Watson diagnosed Severin with the following in accordance with the DSM 5:

A Major Neurocognitive Disorder due to a moderate Traumatic Brain Injury(ies) in accordance with the DSM-5 diagnostic criteria.

Significant Psychological and Contextual Features:

Impairments in the areas of basic activities of daily living, household chores, outdoor work, and social activities.

[19] In addition, the plaintiff obtained a Consultation Report, dated February 24, 2014, from Dr. Salil Gupta, Neurologist who opined that the plaintiff suffered from a closed traumatic brain injury with microhemorrhages, in addition to visible tremors likely caused by anxiety.

[20] Severin was examined and assessed by Dr. Dale Robinson, Neurologist, as part of the Catastrophic Impairment Assessment. In his Neurology Assessment of January 20, 2016, Dr. Robinson found that Severin’s condition included a traumatic brain injury with MRI suggested diffuse axonal injury and microhemorrhages with memory loss, post-concussion syndrome including headaches, vertigo, altered sleep, altered mood, and body tremors.

[21] Also as part of the Catastrophic Impairment Assessment conducted on behalf of the Accident Benefits Insurer, Dr. Paul J. Ranalli, Neurologist reported, on May 25, 2016, that Severin had suffered a mild to moderate closed head injury, memory impairment, tremors and social isolation, all of which were as a result of the July 14, 2013 accident.

[22] In addition, Severin was assessed by Beth Crystal, Occupational Therapist who noted that Severin became overwhelmed by the number of people in a grocery store while running an errand and wanted to leave those premises. Ms. Crystal noted a poor adaptation to stressful situations.

[23] On May 7, 2019, Severin was assessed by the plaintiff’s expert, Dr. David Kurzman, Neuropsychologist. The reason for referral was to determine whether the plaintiff sustained neuropsychological sequelae following the motor vehicle accident of July 14, 2013. Specifically:

A neuropsychological assessment was performed to ascertain whether there are any cognitive impairments that resulted from Ms. Severin’s accidents, which may be impacting her everyday functioning and to determine the degree and nature of deficits; to provide an opinion regarding prognosis; to provide recommendations to her treating doctors regarding any rehabilitation needs related to neurocognitive functioning; and to validate her feelings of cognitive impairments should any be identified during testing.

[24] In his report dated May 28, 2019, Dr. Kurzman offered that Severin had suffered a moderate to severe significant traumatic brain injury and diagnosed Severin with Mild Neurocognitive Disorder due to multiple etiologies, including traumatic brain injury, bodily pain, fatigue, and emotional distress. Dr. Kurzman also diagnosed Major Depressive Disorder, Moderate Adjustment Order with Anxiety, and Specific Phobia.

[25] The Kurzman report includes a summary of post-accident diagnoses reproduced in the plaintiff’s factum.

[26] At the defendant’s request, Severin attended an orthopedic assessment with Dr. Paul Marks on June 20, 2019.

[27] An independent psychological assessment of Severin was conducted by Dr. Lorne Switzman on May 8, 2019, with a report dated June 25, 2019. The intent was to provide a report on the plaintiff’s injuries as well as her state of recovery from the psychological perspective. At the time of the Switzman examination and the resulting report, the defendant had not received the Kurzman report.

[28] Dr. Switzman suggested that it was for “neurological or neuropsychological experts to address any persistent neuro-trauma related difficulties.”

[29] In his report, Dr. Switzman said this:

… Ms. Severin should be reassessed neuropsychologically to identify the presence or absence of ongoing primary neurocognitive sequelae. It would be helpful if the assessor were to comment on specific vocational impairments by linking test results with practical functional issues.

[30] Dr. Switzman provided an Addendum to his earlier report, on August 6, 2019, after having reviewed Dr. Kurzman’s report. Dr. Switzman said the following:

Dr. Lubinsky and Dr. Kurzman report that Ms. Severin’s main cognitive difficulties in the testing situation were sustained attention and impulsive response style. In the three previous neuropsychological assessments carried out by Dr. Watson, these issues were not defined as neurocognitive impairments…..I recommend that the reports of Dr. Watson and Dr. Lubinsky and Dr. Kurzman should be reviewed in detail by a neuropsychologist who could elect to reassess Ms. Severin at least on certain cognitive domains.

[31] Dr. Switzman’s second Addendum, dated April 16, 2020 makes this recommendation:

“Dr. Lubinsky and Dr. Kurzman acknowledge issues such as pain, fatigue and emotional distress can impact functioning on neuropsychological tests. Ms. Severin has a long-standing premorbid history of chronic pain and there is no psychological pain diagnosis, e.g., DSM-5 Somatic Symptom Disorder with Predominant Pain.” A repeat neuropsychological assessment should scrutinize somatic and emotional reactions in relation to Ms. Severin’s test performance in the testing situation.

[32] Dr. Switzman’s second Addendum also contains the following discussion:

“Dr. Lubinsky and Dr. Kurzman conclude that Ms. Severin’s cognitive and emotional challenges prevent her from engaging in any form of gainful employment. It is my impression that depression was seen as the main issue. As I stated, I did not find Ms. Severin to have been emotionally compromised to the degree that she was considered vocationally disabled (see Disability Issues-Vocationalist in my report). In my report, I stated that it would be helpful if a neuropsychological assessor were to comment on specific vocational impairments, tying test results with practical functional issues, e.g., bookkeeping eligibility. I continue to maintain this recommendation.”

Defendant’s Position

[33] Leave to bring the motion should be granted as there has clearly been a significant change in the facts since the action was set down for trial and placed on the trial list. Specifically, the plaintiff served the defendant with a new neuropsychological assessment report from Dr. Kurzman, after Dr. Switzman’s psychological assessment and approximately six years after the accident. The Kurzman report includes “evidence of new clinical presentation, complaints, symptoms, diagnoses, and test results which were not present when Dr. Switzman or Dr. Watson examined the plaintiff”. (Factum, para. 34).

[34] The defendant wishes the opportunity to respond to Dr. Kurzman’s and Dr. Watson’s neuropsychological reports and to follow Dr. Switzman’s recommendation that a neuropsychological assessment be obtained for the reasons he put forward. Dr. Freedman has agreed to conduct an assessment of Severin from the perspective of the neuropsychological discipline.

[35] It is the defendant’s position that the neuropsychological examination requested is relevant to material issues in the action, and necessary for a fair and proper hearing of all the issues, including the extent of Severin’s alleged neurocognitive sequelae. The defendant is entitled to such independent examination of the plaintiff.

[36] To deny the defendant’s request would result in unfairness and prejudice to the defendant: the defendant would be forced to go to trial without the benefit of the requested examination to meet the plaintiff’s case.

[37] It is necessary, for the sake of fairness, that the defendant be permitted to respond to the plaintiff’s neuropsychological assessment report with one of his own.

Plaintiff’s Position

[38] The defendant ought not to be granted leave to bring the motion as there has been no substantial or unexpected change since the matter was set down for trial on consent of the defendant. There have been no new substantial or unexpected revelations about the plaintiff’s condition.

[39] The defendant knew or ought to have known about Severin’s neuropsychological and cognitive impairments as same “were more than sufficiently documented by multiple neuropsychologists and neurologists dating back to 2013. All treatment records were provided to the defendant no later than March 2017.” (Factum, para. 58).

[40] Dr. Kurzman’s report did not introduce any new diagnoses, conditions, or impairments, let alone any that could be interpreted as substantial or unexpected. It is clear from Dr. Kurzman’s report, which includes the identification of 28 prior neuropsychological and neurological diagnoses, that the plaintiff’s condition and prognosis has remained unchanged over time, and numerous examinations and reports.

[41] The defendant has had a significant amount of time to arrange for a neuropsychological examination to respond to the persistent neuropsychological, neurocognitive, and neurological diagnoses, but failed to do so in a timely manner.

[42] “…the plaintiff respectfully submits that the defendant has not satisfied the requirements under Rules 48.04 and 1.04 of the Rules of Civil Procedure, and have not conducted this matter in accordance with the principles of justice, expedience, or fiscal appropriateness and ought not be granted leave to bring this motion.” (Factum, para.65).

[43] The requested examination is not necessary to enable the defendant to call reasonable responding evidence at trial.

[44] The plaintiff has offered the raw data generated by Dr. Kurzman’s testing, to permit the defendant to secure a neurological opinion. This was presented as a viable alternative to the proposed assessment which would cause unnecessary hardship to the plaintiff, (undue stress and hardship associated with repeated examinations, as well as Covid-19 concerns.)

[45] This offer has been dismissed by the defendant.

[46] The defendant was well aware of the plaintiff’s neuropsychological, neurocognitive and neurological conditions for a significant amount of time. It was the defendant’s choice to proceed with an independent psychological assessment, as opposed to a neuropsychological assessment. The defendant should not now, after the matter was listed for trial since February 2020, be permitted to obtain yet another assessment of the plaintiff.

[47] Even if leave is granted, the request for the plaintiff to attend an independent neuropsychological assessment in Mississauga, Ontario, ought not to be granted.

The Issues

[48] The defendant has framed the issues in this motion as follows:

(A) Should the Court grant the defendant leave to initiate this motion?

(B) If the answer to (A) is “Yes”, should the Court order the plaintiff to attend an independent medical examination with Dr. Freedman at his office in Mississauga? and

(C) If the answer to (b) is “Yes”, should the Court allow the defendant an extension of time to serve the expert report of Dr. Freedman?

(Factum, para. 31.)

The Law

[49] Rule 48.04(1) of the Rules of Civil Procedure provides that:

Any party who has set an action down for trial and any party who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court.

[50] The analytical framework for determining whether leave should be granted is set out at paragraphs 34 and 35 of Nelson v. Chadwick, 2019 ONSC 2063:

[34] Setting an action down for trial and consenting to its placement on a trial list are serious matters. Generally, there must be evidence of a substantial and unexpected change in circumstances as a pre-requisite to leave being granted to bring a motion or conduct further discovery after a matter has been placed on a trial list, in accordance with r. 48.04(1) of the Rules: See Goodridge v. Corken, 2004 ONSC 34065 (Ont. S.C.), at para. 11; Theodore Holdings Ltd. V. Anjay Ltd., 1993 CarswellOnt 429 (Gen.Div.), at paras. 11-15; and Grainger v. Grainger, 2009 ONSC 16576 (Ont. S.C.), at paras, 28-29.

[35] The determination of whether to grant leave pursuant to r. 48.04(1) of the Rules is an exercise of the court’s discretion. In Theodore Holdings Ltd. V. Anjay Ltd., at para. 15, Then J. had regard to the following considerations when determining whether to permit leave under r. 48.04(1) of the Rules (which were previously identified by Master Donkin in Financial Truatco. V. Royal Trustco of Canada (1985), 5 C.P.C. (2d) 114 (Ont. Master)), as follows (with modifications to the circumstances of this case as warranted):

1. The court should consider the facts known to the party seeking leave as of the date that the party consented to the action being placed on the trial list;

2. Whether there has been an important change in the facts since the party consented to the action being placed on the trial list;

3. The object of the request for leave; and

4. Whether the relief sought would likely be granted if leave were given to bring the motion, notwithstanding the party’s consent that the matter be placed on the trial list.

A. Analysis

[51] The parties agree that the action was first placed on a trial list on February 5, 2020, at which time the September 28, 2020 date was selected for the trial to proceed.

[52] On that date, the defendant’s intention to request that the plaintiff attend at Dr. Freedman’s office for a neuropsychological assessment had already been formed and identified at the pre-trial of October 8, 2019. The pre-trial Judge’s endorsement reflects this.

[53] As Dr. Switzman points out, in his Addenda Dr. Kurzman’s report is the first time that the Plaintiff was diagnosed with Mild Neurocognitive Disorder due to multiple etiologies (i.e., traumatic brain injury, bodily pain, fatigue, emotional distress).

[54] As well, Dr. Switzman observed that “In the three previous neuropsychological assessments carried out by Dr. Watson, these issues (the plaintiff’s main cognitive difficulties in the testing situation being sustained attention and impulsive response style) were not defined as neurocognitive impairments.”

[55] Even prior to seeing the Kurzman report, Dr. Switzman raised the issue of unusual test results (administered for the accident benefit insurer) and possible inconsistencies:

That she reports no effect of the accidents on fibromyalgia pain and that she reports minimal fibromyalgia pain at this time runs counter to the notion that her pain reaction is complicated by central nervous system changes.

[56] The test results elicited by Dr. Kurzman do not replicate those of Dr. Watson. This is an important fact that was not known to the Defendant until it was served with the Kurzman report, in July 2019.

[57] Given Dr. Switzman’s comments in the April 16, 2020 Addenda, referred to above, it is appropriate that the plaintiff be reassessed by a neuropsychologist as requested by the defendant to determine ongoing primary neurocognitive and psychomotor sequelae.

[58] The defendant could not reasonably have been expected to seek a Defence Neuropsychological assessment and report until the report of the plaintiff’s own expert was received and the plaintiff was not examined by her own expert until May 2019, well over one year after the matter was set down for trial.

[59] The earlier examinations and assessments of the plaintiff were at the request of the accident benefit insurer, for the benefit of the insurer, and they are no substitute for the defendant obtaining his own expert report for trial. The argument that those prior examinations disentitle the defence from obtaining its own neuropsychological report is not compelling.

[60] Nor is the offer of providing the raw data generated by Dr. Kurzman’s neuropsychological testing for examination by an expert chosen by the defendant a substitute for an independent neuropsychological assessment of the plaintiff.

[61] The defendant made its intention to seek an independent neuropsychological evaluation known to the plaintiff within three months of production of the Kurzman report.

[62] The intention to seek a Defence neuropsychological assessment was identified almost one year before the trial date set for the end of September 2020. The written request was made some seven months in advance of the trial date; but for the Covid-19 Pandemic, there would have been sufficient time for the Defence examination and report to have been completed in advance of the trial.

[63] The defence has met is burden of establishing an important change in the facts and that the relief sought ought to be granted.

B. Compelling the plaintiff to attend an examination with Dr. Freedman:

[64] The provisions of s. 105 of the Courts of Justice Act, and rule 33.02 of the Rules of Civil Procedure are applicable on this motion. Both are reproduced in the materials of the parties.

[65] Both parties referred to the decision in Bonello v. Taylor, 2010 ONSC 5723 (ONSC). In that case, D.M. Brown J. made it clear that the right to respond to a plaintiff’s expert report is a substantive one, involving principles of fairness. That case also set out the factors to be considered when evaluating motions under rule 33.02. I will refer to each of those factors and apply them to this case.

i) The party seeking the order for a further examination by a health practitioner 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.

[66] In view of the timing and content of the Kurzman report, the requested assessment is both warranted and legitimate. There is no indication whatsoever that the defendant is attempting to delay the trial, cause prejudice to the plaintiff, or corroborate an existing medical opinion.

[67] Dr. Switzman could not offer a neuropsychological opinion as his core focus was that of a clinical psychological examination to determine the presence, if any, of a psychological disorder. A neuropsychological assessment is required to respond to the plaintiff’s expert, and to determine the degree to which there are specific and/or more global neurocognitive issues.

(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 specialists 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.

[68] With regard to this factor, (i) Dr. Kurzman’s diagnosis of Mild neurocognitive Disorder due to multiple etiologies (i.e., traumatic brain injury, bodily pain, fatigue, emotional distress) differs from the diagnoses of the benefits insurer’s doctors. (ii) The plaintiff should be reassessed neuropsychologically to determine the presence of absence of current ongoing primary neurocognitive and psychomotor sequelae, in light of the “largely unremarkable functioning” observed by Dr. Switzman. (iii) The plaintiff served the Kurzman report after Dr. Switzman had conducted his assessment for the defendant. And (iv) as already indicated, the ascertaining of cognitive status and function related to known or suspected dysfunction, disease, illness or trauma to the brain, is beyond Dr. Switzman’s expertise. Further, as Dr. Switzman indicated, in his addendum:

In a neuropsychological assessment, the issues of interacting or contributing emotional and motivational factors should be addressed in relation to Ms. Severin’s neuropsychological test performance. Specific vocational impairments demonstrated on testing should also be addressed. To my knowledge, this has not been addressed contemporaneously with neuropsychological assessments carried out. Finally, causality should be discussed with respect to any comorbid problems and symptoms.

(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 report – 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 loath 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.

[69] This factor clearly weighs in favour of the defendant.

(iv) 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.

[70] Dr. Switzman’s report and addenda establish the need for the further examination.

(v) A 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.

[71] Again, in view of the timing (after action set down for trial and after the psychological assessment by Dr. Switzman) and contents of the Kurzman report, it would be unfair and prejudicial to deny the defence the right to obtain its own neuropsychological report.

(vi) 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.

[72] While the plaintiff will be inconvenienced by having to attend for an assessment by Dr. Freedman, I do not accept that such attendance and assessment would constitute an undue hardship, notwithstanding the notes from Dr. Cote and Ms. Gour, the Occupational Therapist. The plaintiff was able to travel and attend at Dr. Kurzman’s office in Thornhill, and attend occupational therapy assessments in Midland, on five separate occasions, including after the first reported case of Covid-19 in Ontario. None of these attendances was at the request of the defendant.

[73] As the defendant sets out at para. 51 of his factum:

The Plaintiff’s neuropsychological similar effort to Dr. Kurzman’s assessment and will be less arduous than Ms. Gour’s assessments. Dr. Freedman’s office in Mississauga, Ontario is approximately one hour away from Ms. Gour’s office. The Plaintiff will only have to attend his office once… Dr. Freedman is able to examine the Plaintiff in his office with all appropriate COVID-19 safeguards including, but not limited to, a plexiglass barrier for cognitive testing, requiring all staff and patients to wear masks, and COVID-19 screening prior to testing. Any potential hardship that a neuropsychological assessment may cause is vastly outweighed by the clear prejudice that would befall the Defendant the opportunity to respond or adequately respond to Dr. Kurzman’s report.

[74] The plaintiff has only undergone one examination requested by the defence, other than that conducted by Dr. Switzman, and that is the orthopedic assessment. All of the other examinations and assessments relied upon by the plaintiff to oppose the defendant’s request were at the behest of the accident benefit insurer, and beyond any control of the defendant.

[75] I also agree that to deny the defendant’s request would result in a situation where the plaintiff would present expert evidence of her neurocognitive condition, without meaningful responding evidence from the defendant.

[76] The defendant is entitled to respond to Dr. Kurzman’s report with a neuropsychological report of his own, to address the plaintiff’s alleged neurocognitive sequelae.

[77] The proposed assessment is necessary to permit the defendant to address the issues of the nature, causation and prognosis of Severin’s alleged neurocognitive sequelae as well as their impact on her ability to perform tasks of daily living and her ability to earn income.

C. Extension of time to serve Dr. Freedman’s report

[78] The accident giving rise to this action occurred seven and a half years ago.

[79] The plaintiff was not examined by Dr. Kurzman until more than six years post-accident, and after the action was set down for trial.

[80] The Kurzman report was served on the defendant six days before the rule 53.03 service deadline.

[81] More than 12 months have elapsed since the defence first communicated its request for its own neuropsychological assessment. The plaintiff refused the request. The delay in the defence bringing its motion and having it heard is due to the COVID-19 pandemic and is not due to any intentional delay by the defendant.

[82] In these circumstances, it is appropriate to grant the defendant an extension of time to serve the expert report of Dr. Freedman.

[83] ORDER:

1. The defendant is granted leave pursuant to rule 48.04(1);

2. The plaintiff shall attend an independent medical examination with Dr. Lawrence Freedman, neuropsychologist, at 101 Queensway Street West, Suite 304, Mississauga, Ontario; and

3. The defendant is granted an extension of time to serve Dr. Freedman’s report to no later than 30 days before the date of the outstanding pre-trial.

[84] If the parties are unable to agree on the costs of this motion, counsel may contact the trial coordinator’s office within 21 days to arrange a hearing date before me (via telephone). I will require bills of costs and copies of all offers of settlement. If an appointment to argue costs is not sought within 21 days, the parties will be deemed to have settled the issue of costs.

The Honourable Madam Justice Louise L. Gauthier

Released: December 16, 2020

COURT FILE NO.: C-8232/19OT

DATE: 2020-12-16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Monique Severin

Plaintiff

– and –

Perry O. Barker

Defendant

DECISION ON MOTION

Gauthier, J.

Released: December 16, 2020