SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Braks, Plaintiff
AND:
Dundeal Canada (GP) et al., Defendants
BEFORE: Darla A. Wilson J.
COUNSEL: J. McCoy, counsel for the Plaintiff R. Hajderi, counsel for the Defendants
HEARD: May 28, 2021
ENDORSEMENT
1In this action the Plaintiff claims damages for personal injuries allegedly suffered in a slip and fall accident that occurred on May 25, 2012 in Kitchener. It is fixed for trial to commence in Toronto on September 27, 2021 for 17 days with a pretrial date of August 4, 2021. I fixed the trial date in November 2020 and approved a timetable for the delivery of expert reports.
2Counsel for the Defendants requested a chambers appointment to amend the timetable; I presided at the appointment.
3The timetable order requires the Defendants to serve their expert reports by June 18, 2021. The Defendants arranged assessments with a physiatrist and a neurologist for April 2021. Mr. McCoy responded that the Defendants needed to contact his office before assessments were arranged and that the location of the assessment needed to be resolved prior to any appointment being booked.
4The Plaintiff lives in Kitchener, which is also where the slip and fall occurred. Counsel for the Defendants arranged the assessments in Mississauga and in Toronto and inquired whether the Plaintiff required transportation to the appointments. Mr. McCoy responded in an email of April 8th requesting confirmation that defence counsel had “made inquiries regarding assessment via Zoom and advise of doctors who were not available in the Kitchener area.” He demanded, “Please either provide me with details for an appointment over Zoom, or details of an assessment that would take place in Kitchener, including medical expert, potential dates and times, and all forms that would be required to be completed by my client.” Eventually, Mr. McCoy advised that he did not agree with the assessment with the physiatrist Dr. Kleinman and the April 20th appointment was cancelled. Counsel then booked an appointment for a motion before the Master returnable July 8, 2021 seeking an order compelling the Plaintiff to attend the defence medicals. Mr. McCoy then responded that he was not available for the motion on July 8th and “another date will have to be booked. Your office does not get to unilaterally impose dates. I note that the Court has never said that July 8th is the only date that motions are booked. Please also note that this motion will have to proceed before a judge. In the meantime, I look forward to receiving Dr. Kleinman’s Affidavit for the motion so that cross-examinations can be booked for him and any other affiant.” Subsequently, this chambers appointment was sought.
5I pause to note that chambers appointments are offered for a period of 15 minutes in order for counsel to deal with simple matters such as amendments of timetables; no formal materials are required. In this case, counsel filed many pages of material, including correspondence back and forth between counsel, as well as emails. Counsel cannot expect the judge to read voluminous material in order to deal with a matter at a chambers appointment.
6During the case conference, Ms. Hajderi advised that the appointment with the neurologist Dr. Selchen has been scheduled for June 7th at St. Michael’s Hospital in Toronto. The appointment with Dr. Kleinman has been set for June 29th in Mississauga. The solicitor for the Plaintiff did not confirm his client would attend these assessments.
7Mr. McCoy seems to be of the view that he can dictate by whom his client is assessed for purposes of an independent medical examination, when and the terms upon which the assessment will take place. That is not a correct statement of the law. He did not dispute the entitlement of the defence in this case to have a neurologist and a physiatrist assess the Plaintiff.
8Rule 33 of the Rules of Civil Procedure and section 105 of the Courts of Justice Act empower the Court to order physical or mental examinations of parties by doctors and other health care practitioners, and to impose such terms as are just in the circumstances. The Court can order such examinations to take place in a location other than where a Plaintiff resides.
9It is beyond dispute that the specialists by whom the defence wishes assessments to be undertaken are properly qualified physicians; the dispute seems to have arisen over the wish of the solicitor for the Plaintiff to dictate the terms upon which these examinations will be undertaken. During the chambers appointment, Mr. McCoy stated that he will not permit the Plaintiff to sign a waiver that if she contracts COVID during the assessment she will not launch a lawsuit. He also stated that although the defence offered to have the Plaintiff driven to the appointments, he will not agree to that because of the risks of COVID.
10In my view, the assessments sought by the defence are entirely appropriate given the nature of the claims advanced by the Plaintiff in this lawsuit. This action was brought by the Plaintiff in Toronto, for reasons which are not clear to me, since she lives in Kitchener, presumably her treating practitioners are in Kitchener and the liability witnesses as well would be from Kitchener. The trial will be heard in Toronto in September and in these circumstances, it was inappropriate for Mr. McCoy to essentially dictate to the defence counsel that independent medicals must be done in the Kitchener area and the terms upon which he would ask his client to attend.
11Mr. McCoy attempted to put up roadblocks to the independent assessments to which the defence was entitled and which were subject to my timetabling order. That resulted in the solicitor for the Defendants serving and filing a motion to compel the Plaintiff to attend these appointments and the chambers appointment before me today. Both of those steps, in my opinion, were unnecessary.
12Subsequent to the hearing of the chambers appointment, Ms. Hajderi confirmed that the Plaintiff will not be asked to sign any waiver of rights pursuant to COVID; she will be asked to complete the usual, standard COVID screening form that is required before a person enters any public building at the present time, along with the usual consent form to enable the examination to be conducted. A copy of that consent form was forwarded to me and I reviewed it. There is nothing controversial or offensive in the consent form. None of this is new to Mr. McCoy or unusual in the context of independent examinations in personal injury actions.
13I make the following order:
14The Plaintiff will attend the neurological assessment with Dr. Selchen on June 7th at St. Michael’s Hospital and the assessment with the physiatrist Dr. Kleinman on June 29th in Mississauga. The Defendants will pay the Plaintiff’s reasonable travelling expenses in attending these appointments.
15The reports from these assessments are to be delivered forthwith, in light of the upcoming pretrial and trial. Dr. Selchen shall deliver his report by June 18th and Dr. Kleinman by July 7th; these are the dates counsel advised she expects to have the reports. They are to be served immediately so that Mr. McCoy can secure any responding reports. My timetable of November 25, 2020 is amended accordingly.
Date: May 28, 2021