Court File and Parties

COURT FILE NO.: 16-69137

DATE: 2020/12/21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Paul Robert Hipkiss, Christopher Hipkiss and Jonathan Hipkiss by their Litigation Guardian, Syrmo Yerou-Hunter, Syrmo Yerous-Hunter and Timothy Hipkiss Plaintiffs

and

Gaetan Comeau and Marc Comeau Defendants

BEFORE: Justice A. Doyle

COUNSEL: Mikolaj Grodzki, Counsel for the Plaintiffs Joseph Griffiths, Counsel for the Defendants

HEARD: December 14, 2020 via Zoom

Decision

[1] The Plaintiffs move to strike the Defendants’ Jury Notice to avoid delay and ensure that the trial commences in March 2021. At this time, due to the pandemic and the current Orange Zone restrictions in the Ottawa area, a civil jury panel cannot be accommodated for the trial of this action.

[2] The Defendants have brought a motion for an Order compelling Mr. Hipkiss to attend physical and mental examinations with one or more health practitioners and ordering that no other person be in attendance other than the examining health practitioner and such assistants as the practitioners require for the purpose of the examination.

[3] For the reasons that follow, I grant both motions.

Preliminary Issue – Leave to Bring These Motions

[4] For the reasons that follow, I grant leave to the Plaintiffs and Defendants to bring these motions.

[5] Pursuant to r. 48.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, a party who sets an action down for trial shall not initiate any motion without leave of the court.

[6] As set out in BNL Entertainment v. Rickets, 2015 ONSC 1737, 126 O.R. (3d) 154, there are two tests for granting leave:

• The moving party must show a substantial or unexpected change of circumstances since the filing of the record; and
• If it is just in the circumstances of the facts of the case.

[7] Given the pandemic, the court in J.A.L. Developments Inc. v. Residents of Springhill Inc., 2020 ONSC 2222, at para. 69, stated that a liberal approach must be taken in all pending civil litigation matters in order to allow cases to move forward to a resolution in the foreseeable future and “on the merits”.

[8] In this case, I find that the Plaintiffs have shown a substantial or unexpected change of circumstances subsequent to the filing of the trial record. The pandemic has affected the trial of this matter as there is no certainty as to when civil jury trials can be held in Ottawa.

[9] Despite their efforts, the Defendants have not had cooperation from Mr. Hipkiss with respect to attending an Independent Medical Examination (“IME”).

[10] In addition, it is just in the circumstances of the facts of the case to hear these motions as the Defendants are prima facie entitled to an IME and the Plaintiffs’ case should be permitted to move forward to a resolution based on its merits.

Background

[11] On October 29, 2014, Mr. Hipkiss, a pedestrian, was hit by a motor vehicle operated by one of the Defendants. He claims damages in the amount of $1,600,000 and the remaining Plaintiffs each claim $100,000 in damages for loss of care, guidance and companionship pursuant to the Family Law Act, R.S.O. 1990, c. F.3.

[12] The matter was set down for trial on September 27, 2018.

[13] The parties attended a Judicial Pre-trial in 2019. The parties attended mediation in September 2020 and attended a Trial Management Conference (TMC) in November 2020.

[14] The Plaintiff’s Affidavit of documents was served in January 2020.

[15] Mr. Hipkiss alleges that as a result of the accident he suffers from a number of injuries including:

• Moderate traumatic brain injury;
• Zygoma fracture;
• Tooth fracture;
• Headaches;
• Dizziness;
• Nausea;
• Loss of balance;
• Sensitivity to sound and light;
• Memory difficulties, slow information processing, word finding difficulty, difficulty reading and writing;
• Irritability;
• Fatigue;
• Difficulty adjusting to functional losses;
• Tinnitus;
• Right shoulder strain, ongoing right shoulder pain;
• Ongoing rib pain;
• Hip strain; and
• Right knee pain.

[16] Mr. Hipkiss’ neuropsychological assessment report by Dr. Leclerc, dated November 22, 2018, makes a diagnosis of Major Neurocognitive Disorder due to Traumatic Brain Injury with behavioral disturbances. The report states the opinion rests on the file review and the history provided by the referral agent rather than cognitive and psychological tests administered to Mr. Hipkiss.

[17] In his letter dated September 22, 2008, Dr. Dimock wrote to Dr. El-Sawy stating he found Mr. Hipkiss “… had been quite depressed when he had seen you in February”. He also wanted to find solutions for his chronic back problem which had been present for 9 years. He had lost a few contracts the previous year because of his “short temper with his students”.

[18] In his letter dated September 14, 2014 to Dr. Laplante, Dr. Dimock acknowledges Mr. Hipkiss’ personality disorder and certain issues he had in Family Court. He confirms that he has anti-social personality disorder based on his personality rather than his experience in Iraq.

[19] On August 24, 2020, an email from Defendants’ counsel to Plaintiffs’ counsel indicated that they had scheduled examinations by Dr. Paul Duhamel, a neuropsychologist, for October 19, 2020, and a second by Dr. Sujay Patel, a psychiatrist, on November 13, 2020, and requested confirmation that Mr. Hipkiss would attend.

[20] On September 9, 2020, the Defendants’ counsel emailed the Plaintiffs’ counsel confirming the scheduled examinations and to confirm Mr. Hipkiss’ willingness to attend.

[21] That day, the Plaintiffs’ counsel indicated that they would consider the proposal if the matter did not settle at the mediation scheduled for Sept 22, 2020 and that this would not jeopardize the March 2021 trial dates.

[22] On September 29, 2020, Plaintiffs’ counsel wrote that Mr. Hipkiss would attend if his case manager could attend with him.

[23] On October 1, 2020, Defendants’ counsel confirmed that appointments were still booked and would check with the examiner. The examiners advised that the case manager could attend the informed consent briefing and interview but not the testing. Dr. Patel stated that he prefers that no one attend as he can then observe the individual without emotional support but is prepared to proceed if the lawyers agree to the limitation.

[24] On October 2, 2020, Plaintiffs’ counsel advised the Defendants' counsel said Mr. Hipkiss would not attend without a court order.

[25] On October 7, 2020, Defendants’ counsel inquired whether he was requesting an accommodation at the IME as it was medically supported by his treatment team. Counsel was asked to send a medical letter confirming this.

[26] Since Defendants’ counsel did not hear from Plaintiffs’ counsel, he emailed Plaintiffs’ counsel on October 9, 2020 saying he would have to cancel the IME to avoid cancellation fees and asked if they had a medical letter that supports an accommodation at the IME.

[27] On November 26, 2020, the parties attended a TMC, at which time Plaintiffs’ counsel advised that Mr. Hipkiss would attend if a case manager attended with him. On that day, Defendants’ counsel reiterated that a case manager could come but could not be present during the assessment and interview, that the assessor needed to see him without emotional support and, if there needed to be accommodations, a medical letter was required.

[28] On November 26, 2020, Plaintiffs’ counsel wrote that if they could not agree on the attendance of the caseworker then it could be dealt with during the December 14, 2020 motion.

[29] On November 27, 2020, Plaintiffs’ counsel wrote that the request came late in the process and could not affect the March 2021 trial dates and proposed dates for the IME for January 2021. The court could then deal with the terms at the December 14, 2020 motion.

[30] Given the amount claimed, the Defendants’ position was that the pre-existing conditions and the alleged ongoing symptoms made an examination by a neuropsychologist and a psychiatrist necessary to provide an opinion and responding reports.

[31] Justice Gomery’s Trial Management Conference endorsement indicates the following:

• The court confirmed that the five-week jury trial was set beginning March 1, 2021 and that a pre-trial had been held in 2019;
• The Plaintiff served a motion to strike the jury returnable the first day of trial and the court set a date for it to be heard on December 14, 2020;
• Given the public health restrictions imposed by the Covid-19 pandemic, no civil jury trials will proceed in Ottawa in March 2021;
• No further defence medical examinations are anticipated; and
• A further TMC was scheduled for January 27, 2021 at which time the trial dates will be confirmed or vacated.

Motion to Strike the Jury Notice

Plaintiffs’ Position

[32] In his Notice to the Profession and Public regarding Court proceedings dated November 21, 2020, the Chief Justice of Ontario announced that there will be no new jury selection in any court location except those in a Green Zone, as defined by the Ontario government as of the date of the notice.

[33] On that date, Ottawa was labelled as an Orange Zone and this designation continues today.

[34] This notice will remain in effect until at least January 4, 2021 and an update will be issued on December 29, 2020.

[35] In support of their motion, the Plaintiff filed the affidavit of Symro Yerou-Hunter, the stepmother of Paul Robert Hipkiss, who suffered a traumatic brain injury in the accident which occurred on October 29, 2014.

[36] Ms. Yerou-Hunter describes the effect of the accident on her son. She states that he

• struggles to live independently;
• is volatile, angry, confused, aggressive and afraid;
• is unable to work and is on non-earner benefits, which is borderline poverty;
• is unable to support himself socially or partake in normal activities; and
• has frequent outbursts.

[37] In addition, the court case has been a profound preoccupation as he needs to tell his story, hear the evidence and get closure.

[38] His three sons assist him when they can but find it very stressful to deal with Paul’s outbursts and anger. The whole family is frustrated with the delays and are tempted to just accept what the Defendants are offering if there are further delays.

[39] The court in Coban v. Declare, 2020 ONSC 5580, at para. 29, found that the ongoing pandemic was a substantial and unexpected change of circumstances. The decision was upheld by the Divisional Court: see Coban v. Declare, 2020 ONSC 7537.

Defendants’ Position

[40] The Defendants submit that:

• The right to a civil jury is a substantive right that should not be interfered with lightly;
• The court should adopt a “wait and see” approach;
• There is no evidence before the court that the court system can accommodate a 5-week trial even if it is held by a judge alone;
• There is no evidence that the Plaintiffs and the witnesses are willing and able to participate in a trial via zoom; and
• There is no evidence of what delay will occur if the jury trial is postponed.

Legal Principles

[41] Firstly, the court retains the residual discretion to strike the jury notice: see s. 108(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 and r. 47.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[42] In Kempf v. Nguyen, 2015 ONCA 114, 124 O.R. (3d) 241, at para. 44, the Court of Appeal for Ontario stated that the trial judge has considerable discretion and this discretion must not be exercised arbitrarily or on the basis of improper principles.

[43] Therefore, the right of a party to have a jury trial must not be taken away lightly: see Hunt (Litigation guardian of) v. Sutton Group Incentive Realty Inc. (2002), 2002 45019 (ON CA), 60 O.R. (3d) 665 (Ont. C.A.).

[44] In Cowles v. Balac (2006), 2006 34916 (ON CA), 83 O.R. (3d) 660 , O’Connor, ACJO stated at paras. 37 and 38:

[37] A party moving to strike a jury bears the onus of showing that there are features in the legal or factual issues to be resolved, in the evidence, or in the conduct of the trial which merit the discharge of the jury. In the end, a court must decide whether the moving party has shown that justice to the parties will be better served by the discharge of the jury: Graham, supra.

[38] While that test confers a rather broad discretion on a court confronted with such a motion, it is nonetheless a sensible test. After all, the object of a civil trial is to provide justice between the parties, nothing more. It makes sense that neither party should have an unfettered right to determine the mode of trial. Rather, the court, which plays the role of impartial arbiter, should, when a disagreement arises, have the power to determine whether justice to the parties will be better served by trying a case with or without a jury. [Emphasis added.]

[45] In Belton v. Spencer, 2020 ONSC 5327, at para. 16, Sheard J. summarizes the principles set out by Myers J. in MacLeod v. Canadian Road Management Company, 2018 ONSC 2186, 79 C.C.L.I. (5th) 314:

(a) The court must decide whether the moving party has shown the justice to the parties will be better served by the discharge of the jury; (b) The object of a civil trial is to provide justice between the parties, nothing more; and (c) A judge may strike a notice even before the trial has begun if the judge considers that there is no advantage to beginning the trial with the jury because the situation makes it apparent that the case should not be tried with a jury.

[46] The Court of Appeal for Ontario refused to grant a stay of Sheard J.’s Order: see Belton v. Spencer, 2020 ONCA 623.

[47] At paras. 26-27 of decision on the motion to stay, Brown J.A. stated:

[26] The substantive right to a civil jury trial, upon which the appellant relies, is a qualified right. As this court stated in Cowles v. Balac (2006), 2006 34916 (ON CA), 83 O.R. (3d) 660 (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 496, at para. 32, a party’s entitlement to a jury trial is subject to the power of the court to order that the action proceed without a jury: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 108(3). While a court should not interfere with the right to a jury trial in a civil case without just cause or cogent reasons, a judge considering a motion to strike out a jury notice has a “rather broad discretion” to decide “whether the moving party has shown that justice to the parties will be better served by the discharge of the jury”: Cowles, at paras. 36-38. This test recognizes that the “paramount objective of the civil justice system is to provide the means by which a dispute between the parties can be resolved in the most just manner possible”: Cowles, at para. 39.

[27] As more recently stated by this court in Girao v. Cunningham, 2020 ONCA 260, 2 C.C.L.I. (6th) 15, at para. 171, while the right to a jury trial in a civil action is fundamental, “it is not absolute and must sometimes yield to the practicality.”

[48] The Court of Appeal added the following about a “wait and see” approach:

[30] However, the only allegation of an error of law apparent in the appellant’s notice of appeal is that the motion judge did not adopt a “wait and see” approach to the motion to strike, thereby contradicting three decades of established authority in Ontario in which a motion judge defers to the trial judge the issue of whether to strike out a jury notice. In Cowles, this court described the “wait and see” approach at para. 70:

Over the years, courts have said that, in some cases, when confronted with a motion to strike a jury notice or discharge a jury, it is preferable to proceed with the trial and wait until the evidence or a substantial portion of it has been heard before deciding whether the discharge of the jury is warranted. Experience has shown that in many instances the anticipated complexities of a case or other concerns giving rise to a motion to dismiss a jury do not materialize or at least not to the extent originally asserted. By "waiting and seeing", courts are better able to protect the substantive right of the party who wants a jury trial and to only dismiss the jury when it becomes necessary to do so.

[31] Significantly, the court in Cowles went on to state that taking a “wait and see” approach is not a rule of law: at para. 71. The court observed that the Courts of Justice Act and the Rules of Civil Procedure “contemplate that a judge may strike a jury notice even before a trial has begun and that a trial judge may dismiss a jury before beginning to hear the evidence”: at para. 71.

[32] The motion judge identified the principles in Cowles and how subsequent courts have interpreted them: at paras. 15 and 16. She examined how those principles should be applied in light of calls by the Supreme Court of Canada to remedy the delays endemic to the Canadian civil justice system and implement a “necessary culture shift” in the civil system: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 140; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 28.

[33] The motion judge explained how the motion to strike required her to “apply these entrenched principles to the reality [the court] now faces”: at para. 36. That reality has two components. First, on March 17, 2020 the Superior Court of Justice suspended civil jury selection and jury trials. Second, at the time the motion judge wrote her reasons, there had been “no new announcements detailing how and when the courts in this Judicial Region will be able to resume conducting civil jury trials”: at para. 8. That meant no judge would be assigned to hear the action as a civil jury trial until some uncertain date in the future. As a result, “if a ‘wait and see’ approach is taken, the delay in the scheduling of the trial that the plaintiff seeks to avoid, will have already occurred. For that reason, I find that the ‘wait and see’ approach to be unsuitable”: at para. 38. [Emphasis added.]

Analysis

[49] Neither party alleges that the other party caused any previous delays.

[50] During this pandemic, the parties agree that judge alone civil trials can continue to be heard.

[51] I make the following findings:

• The parties are ready for trial. But for the pandemic, the trial would likely proceed in March 2021;
• The events that gave rise to the action occurred almost 6.5 years ago;
• The Defendant's right to a trial by jury is outweighed by the need to provide the Plaintiffs with more timely access to justice; and
• In response to Plaintiffs’ counsel’s inquiry, the Trial Coordinator for Civil Matters stated in her email dated December 3, 2020, that it would be up to the Chief Justice as to when there would be an end to the suspension of civil jury trials.

[52] When asked if the matter could proceed in March 2021 if it was not a jury trial, the Trial Coordinator would not confirm. I note that another TMC is set before Local Administrative Judge Gomery in January 2021 to confirm or vacate the dates.

[53] This suggests that those dates are available and counsel made their submissions on the basis that the trial could proceed in March 2021 if there was no jury.

[54] In Macleod, Myers J. referred to Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, and found at para. 30 that:

• Our civil justice system is premised upon the value that the process of adjudication must be fair and just. This cannot be compromised;
• Undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes; and
• Prompt judicial resolution of legal disputes allows individuals to get on with their lives. But, when court costs and delays become too great, people look for alternatives or simply give up on justice.

[55] In Girao v. Cunningham, 2020 ONCA 260, the Court of Appeal confirmed that the principles governing the discharge of the jury remain as set out in Kempf and that “the question for the trial judge is simply this: will justice to the parties be better served by dismissing or retaining the jury?”: see Kempf v. Nguyen, 2015 ONCA 114, 124 O.R. (3d) 241, at para. 119. At paragraph 171, Lauwers J.A. states: “While I recognize that the right to a jury trial in a civil action has been recognized as fundamental, it is not absolute and must sometimes yield to practicality.”

[56] The impact of the pandemic on our justice system has been phenomenal. I refer to the comprehensive and detailed description of this effect set out in Beaudoin J.’s decision in Louis v. Poitras, 2020 ONSC 5301:

[3] In March 15, 2020, and for the protection of the public, court staff, lawyers, and judges, the Superior Court of Justice suspended all operations except for matters deemed urgent. Previously scheduled matters were adjourned to various dates in June. Priority was given to criminal, child protection and family matters. Traditional hearings were replaced by “virtual hearings”. ZOOM video and teleconference lines were secured. A teleconference or video conference took the place of a courtroom. Courthouse staff began to work remotely, and electronic filing of documents was expanded.

[4] Overnight, the court system was hurled into the twenty-first century. Past practices were jettisoned; new efficiencies are being explored; and there is a growing realization that the administration of justice will, at least in some ways, remain forever changed.

[5] As a result of the technological initiatives, the court’s operations were expanded to some extent as of April 6, 2020; but all civil jury and criminal jury trials remained suspended until September 2020. On May 13, 2020, additional operations were announced, with the expectation that some non-virtual hearings would take place in a first expansion phase commencing July 6, 2020. A second phase of expansion is scheduled to take effect on September 14, 2020, and the third and final phase is targeted for November 1, 2020.

[6] On June 18, 2020, however, a formal notice was given to the Ottawa bar that civil jury trials will not proceed in Ottawa until January 2021 at the earliest.

[57] In Louis v. Poitras, 2020 ONSC 6907 (Ont. D.C.), the Divisional Court allowed the appeal for a number of reasons, including that the court should have considered the capacity of the local region to conduct the jury trial and the likely delays associated with the same.

[58] The Court of Appeal for Ontario stayed the Divisional Court decision as Brown J.A. found that there was a serious question to be tried: see Louis v. Poitras, 2020 ONCA 815. The Divisional Court had concluded that the motion judge had acted arbitrarily when he struck the jury notice and was not persuaded that justice would be served by the striking of the jury notice.

[59] The facts in Louis v. Poitras are worth repeating as there are similarities with the case at bar. The motor vehicle accident in that case occurred in 2013 and there were claims for general damages, past and future loss of income and Family Law Act claims for loss of guidance, care and companionship for a total claim of $975,000.

[60] As an update from the time of the Louis case, there have been other notices including the Notice of the Chief Justice dated November 23, 2020 suspending civil jury trials until at least January 5, 2021.

[61] Further, the Notice to the Profession and the Public dated December 14, 2020 states:

Chief Justice Morawetz has extended the suspension of jury trials until at least January 29, 2021 in all areas of the province except Green Zones. Jury trials will recommence on Monday, Feb. 1, 2021 at the earliest.

[62] Brown J.A. in Louis reiterated the importance of looking at the evidence of the anticipated length of the delay and the particular circumstances of the case.

[63] In this case, the Plaintiffs have clearly set out the prejudice to them if there is additional delay:

• Financially, Mr. Hipkiss is living on the poverty line;
• Emotionally, he has difficult time coping;
• Psychologically, this litigation and the uncertainty of its completion is affecting him;
• He has been unable to meet his familial obligations by payment of his child support; and
• The impact of the accident is exponentially exaggerated without a finality to the litigation.

[64] There is evidence that there will be indefinite delay if the jury notice is not struck and the case will not be heard in the near future.

[65] In Louis, the motions judge noted that, even prior to the temporary suspension of court operations in March 2020 due to the pandemic, there was a growing backlog of civil cases and that trials of three weeks or more would usually entail a delay of at least two years between setting the matter down for trial and the trial itself.

[66] In a prescient way, Myers J. stated in MacLeod v. Canadian Road Management Company, 2018 ONSC 2186, 79 C.C.L.I. (5th) 314, at para. 32:

The court must react to the realities facing civil litigants and the civil justice system. It is not news to anyone that delays and the high cost of civil proceedings impair access to justice. The Supreme Court has declared that “[e]nsuring access to justice is the greatest challenge to the rule of law in Canada today.” Systemic issues like the insufficient judicial compliment, resource deployment away from civil cases as a result of R. v. Jordan … and other pervasive funding concerns affect the realities facing civil litigants. The court’s ability to provide long civil jury trials in an expeditious, affordable, proportionate way may be suffering as a result. Where this is so, the systemic realities may impair access to civil justice. The right to a civil jury trial might therefore have to yield in appropriate cases in order to provide the parties with an expeditious, affordable, and proportionate resolution that is fair and, especially, one that is “just” as we currently comprehend that term. [Emphasis added.]

[67] In this case, I find that the interests of justice are served by the striking of the jury notice because:

• The Trial Coordinator’s Office has confirmed that it is unaware when civil jury trials will resume.
• There is continued uncertainty as to when this matter would be heard if the jury notice continues, whereas a trial can proceed by a judge alone in March 2021.
• The accident occurred over six years ago, and a further delay would place substantial financial, emotional and psychological hardship on the Plaintiffs.
• This matter should be dealt with on its merits and justice delayed is justice denied.
• The Defendants argue that there is no record or evidence of when the civil jury trial could take place and, in my view, that is the point. A further delay, whether it is 12 to 18 months or longer, is not in the interests of justice and not compensable.
• The uncertainty of the scheduling of the next civil jury trial buttresses the Plaintiffs’ position that the trial should be permitted to proceed at a set trial date in March 2021 before a judge alone.
• The Defendants suggest that the Plaintiffs bear the onus to establish that the Plaintiffs and the witnesses would be available to participate by Zoom. However, in my view, those practical arrangements are in the hands of the Plaintiffs and they own the conduct of their case. It is not up to the court to micromanage the manner in which the Plaintiffs arrange to have their witnesses available to participate in the trial. The Plaintiffs have not indicated that there are any issues with respect to the presentation of their case.
• The Defendants suggest that the Plaintiffs’ suggestion that they will just give up if there is another delay is not a sufficient reason to strike the jury notice. In my view, it is a consideration when the court is determining, based on the record before it, whether the interests of justice merit the striking of the jury notice.
• The Defendants submit it is premature to strike the notice and the court should “wait and see”. As stated by Brown J.A. in Louis, this is not suitable. I am not prepared to revisit this issue as the parties will be better served if this matter proceeds to trial in a timely and predictable matter.
• The Defendants argue that this five-week trial would not likely be heard in one sitting as there is suggestion, as set out in Louis, that trials in Ottawa are only set for three weeks. The Plaintiffs have advised that their estimate would be considerably lower if it was a judge alone trial. Hence this trial could be accommodated in March 2021.

[68] In conclusion, striking the jury would permit the matter to proceed as:

• All parties are ready;
• The Defendants have indicated that they are able to complete their IMEs in January 2021, and there will not be a delay due to these reports from the IMEs;
• Any delay will likely require costly updated expert reports; and
• It is unknown when or how a new jury trial may be heard.

[69] As Ottawa is in an Orange Zone, and the court will not be permitted to hold civil jury trials as directed by the Chief Justice of Ontario, it is in the interests of justice that the jury notice be struck.

Defendants’ Motion an Independent Medical Examination (IME)

Defendants’ Position

[70] The Defendants indicate that they were served with the Plaintiffs’ medical reports after the Plaintiffs set down the matter for trial and further reports were provided after the pre-trial.

[71] The Defendants will be prejudiced without a defence medical examination. They attempted to obtain medical examinations so as to not impact the trial scheduling.

[72] Section 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43, authorizes a medical examination and r. 33.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, permits the order to specify the time, place and purpose of the examination and name the health practitioner.

[73] A defence medical examination will allow the defence to conduct its defence and assist the court by furnishing expert evidence. It will be able to obtain an objective assessment to meet the case advanced by the Plaintiffs.

[74] In motor vehicle cases, the defence has a prima facie right to a first medical examination on the issues that are the subject of this litigation.

[75] The Plaintiffs have not provided any medical evidence to support their accommodation request and hence have not established that a third-party support is required at this Independent Medical Examination.

[76] The Defendants have evidence that a third-party support could impact the assessment process.

[77] In the alternative, if a third-party support is permitted then:

• The individual must be a passive presence at the examination;
• The individual must not attempt to participate or interject;
• The examination shall take place at the earliest date and time in accordance with the assessor’s schedule; and
• Any delays or costs associated with the support person in attendance shall be borne by the Plaintiffs.

Plaintiffs’ Position

[78] Regarding the IME, the Plaintiffs request that Mr. Hipkiss’ attend the examinations with a case manager to provide support.

[79] They rely on the evidence before the court regarding his fragile self and his emotional state.

[80] No medical evidence has been filed to support the requirement that a case manager attend with him during the testing/assessment of the defence experts.

Analysis

[81] Rule 1.04 states that the Rules should be liberally construed to secure the just, most expeditious and least expensive determination of a civil proceeding on its merits.

[82] The court orders Mr. Hipkiss to attend the IME as required by the Defendants and a case manager/support person will not be in attendance during the assessment and testing because:

• The health practitioner has stated he wishes to assess Mr. Hipkiss without the emotional support of another individual;
• Mr. Hipkiss has produced no evidence that states that the attendance of a third-party individual is medically necessary;
• The Defendants have a prima facie right to IME in motor vehicle cases;
• The evidence indicates that they made efforts for the IME to take place over four months ago; and
• It is in the interests of justice that the Defendants’ obtain expert evidence that can be adduced at trial to assist the court’s adjudication of this matter.

[83] The case manager or any third party can accompany Mr. Hipkiss to the location of the IME but will not be present during the testing and assessment.

[84] The IME will be scheduled as soon as possible in order to avoid any further delays and shall be completed by the end of January 2021. The Defendants indicate that they will not hold the Plaintiffs to the strict timelines with respect to the service of their reply expert reports.

[85] The parties have indicated that they can resolve the issue of costs. If they are unable, then the Plaintiffs may file their two-page costs submission by January 22, 2021, the Defendants may file their two-page costs submission by February 12, 2021 and the Plaintiffs may file their one-page reply by February 22, 2021.

Justice A. Doyle

Date: December 21, 2020

COURT FILE NO.: 16-69137

DATE: 2020/12/21

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Paul Robert Hipkiss, Christopher Hipkiss and Jonathan Hipkiss by their Litigation Guardian, Syrmo Yerou-Hunter, Syrmo Yerous-Hunter and Timothy Hipkiss Plaintiffs

and

Gaetan Comeau and Marc Comeau Defendants

BEFORE: Justice A. Doyle

COUNSEL: Mikolaj Grodzki, Counsel for the Plaintiffs Joseph Griffiths, Counsel for the Defendants

Decision

Doyle J.

Released: December 21, 2020