Court File and Parties

COURT FILE NO.: CV-18-00603038

MOTION HEARD: 20210525

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Christine Harris, Lee Canning and Kenneth Cappelle, Plaintiffs

AND:

Mast Landscaping Limited and Ari Mast, Defendants

BEFORE: Master B. McAfee

COUNSEL: M. Luburic, Counsel, for the Moving Parties, the Defendants

H. Shankman, Counsel, for the Responding Parties, the Plaintiffs

HEARD: May 25, 2021

REASONS FOR DECISION

[1] This is a motion brought by the defendants for an order that the plaintiff Christine Harris (the plaintiff) attend a further defence medical examination with Dr. Robert Yufe, neurologist, on June 8, 2021 at 9:00 am in Toronto, Ontario.

[2] The plaintiff does not oppose a defence medical examination with Dr. Robert Yufe, or another neurologist. However, it is the plaintiff’s position that the examination ought to take place at a location closer to the plaintiff’s residence. The plaintiff resides in Zephyr, Ontario. The plaintiff requests that the motion be dismissed with leave to the defendants to arrange another defence medical examination with Dr. Yufe, or another neurologist, at a location within a 30-minute drive from the plaintiff’s residence.

[3] The defendants’ position is that the examination ought to proceed before Dr. Yufe in Toronto. The address of the proposed examination with Dr. Yufe is 100 Humber College Blvd., Etobicoke, Ontario M9V 5G4.

[4] The action arises as a result of an accident that occurred on May 16, 2018, at the plaintiff’s residence. The defendant was using a skid steer machine to plant trees when it is alleged that part of the machine struck the plaintiff on the head, resulting in serious and permanent injury.

[5] On August 9, 2018, the action was commenced. The plaintiff claims damages in the amount of $1,820,000.00. The plaintiffs Lee Canning and Kenneth Cappelle each claim damages in the amount of $50,000.00 pursuant to the Family Law Act, R.S.O. 1990, c.F.3.

[6] On or about August 24, 2018, a statement of defence was delivered denying liability and alleging, inter alia, that the plaintiff was negligent and the author of her own misfortune. The defendants also deny that the plaintiff sustained the injuries alleged.

[7] The jury trial of this action is currently scheduled to proceed on November 15, 2021 for 17 days. The “case history” indicates that the pre-trial is scheduled for September 22, 2021, which may or may not be accurate. On the motion counsel were not able to confirm to the court the date of any scheduled pre-trial.

[8] The defendants have had the plaintiff examined by Dr. Kurzman, neuropsychologist, on or about November 27, 2019. Dr. Kurzman’s office is located in Thornhill, Ontario. The defendants have also had the plaintiff examined by Dr. Waisman, psychiatrist, on or about January 15, 2020. Dr. Waisman’s office is in Richmond Hill, Ontario. The defendants have also had the plaintiff examined by Dr. Berry, neurologist, on or about March 20, 2019. The examination by Dr. Berry was originally scheduled to proceed in Toronto. At the request of the plaintiff, the defendants agreed to change the location of Dr. Berry’s examination to Markham.

[9] On December 8, 2020, Dr. Berry passed away. Dr. Berry was 90 years of age.

[10] In McGowan v. Green, [2020] O.J. No. 373 (Ont. S.C.J.) at paras. 9 and 10, citing in part Nutley v. Kuper, [2008] O.J. No. 2966 (Ont. S.C.J.), Justice Tausendfreund summarizes the principles guiding the determination of the location of a defence medical examination:

[i] 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.);

[ii] 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. No. 2966 (Ont. S.C.J.), para. 14;

[iii] 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 (Litigation guardian of) v. Ryerson, [1992] O.J. No. 1392 (Ont. Div.Ct.);

[iv] The place of examination should be determined by what is convenient and just: Manning, ibid at para. 5;

[v] The convenience of the party to be examined is a factor to be considered: Baker v. Hayes, [1991] O.J. No. 854 (Ont. Gen.Div.) at para. 2;

[vi] “The convenience of the party” includes providing adequate transportation, as the party’s circumstances require.

[11] In her affidavit sworn April 16, 2021, at paras 5, 6 and 14, the plaintiff deposes that she is very sensitive to light, movement and motion and has been unable to travel in a car for periods longer than 20 to 30 minutes at a time. Longer car rides cause her to become very dizzy and violently ill. The plaintiff deposes that on the one occasion when she did have to travel to Toronto for an examination, she was bedridden for 3 days afterwards. In the past 3 months the plaintiff has only left her home for short periods for groceries and, on one occasion, she travelled to a clinic near her home for a blood test.

[12] As was the case in McGowan, the uncontroverted recent medical evidence of the plaintiff’s treating family physician and treating psychologist, goes beyond raising a concern about the level of inconvenience in travelling to an examination in Toronto.

[13] The note of Dr. Lai, treating family physician dated April 13, 2021, states in part:

As mention [sic] in my previous letter on February 9, 2021 that [the plaintiff] cannot tolerate long car travel due to her physical illness and I recommend her not to travel or drive for a few months. Christine is capable of travelling in shorter distance from her home and so an assessment can be arranged around Newmarket or maximum York Region instead of Toronto area. I strongly request that you should arrange for an alternative location for her so that it will not exacerbate my patient’s medical condition.

[14] The note of Dr. Bovell, treating psychologist dated April 15, 2021, states in part:

…She will become ill and likely vomit and be too weak to provide useful information if she is in a car for more than 15 minutes.

[15] In a supplementary affidavit sworn May 18, 2021 after receipt of the responding material, the defendant’s lawyer deposes: “I am informed by Dr. Yufe that he is unable to hold the defence medical assessment at a different location closer to the plaintiff.” There is no explanation for Dr. Yufe’s inability to hold the defence medical assessment at a location closer to the plaintiff.

[16] Although the defendants argue that Dr. Yufe is the only suitable neurologist they could find on short notice and argue that it is unlikely that they could find another neurologist in sufficient time, there is no evidence in this regard before the court. Similar to the circumstances in McGowan, there is no evidence before me as to why the examination must only be before Dr. Yufe in Etobicoke.

[17] The plaintiff’s responding material includes a list of approximately twenty-three neurologists practicing in the Newmarket, Markham, and Richmond Hill area obtained from the website of the College of Physicians and Surgeons of Ontario. The defendants’ supplementary material does not address why none of the neurologists on the list would be appropriate.

[18] The defendants make no request for a virtual examination, even in the alternative. At the hearing, the plaintiff did not pursue a position that the examination ought to take place virtually. There is no medical evidence before me concerning whether a neurological examination could properly be conducted virtually.

[19] While I recognize the defendants’ right to choose their medical expert, as stated in McGowan at para. 13, that choice is not unfettered, particularly if the well-being of the plaintiff might be compromised. Although the defendants have offered to provide transportation, that does not address the issue of the plaintiff travelling more than 30 minutes.

[20] In balancing the competing interests, and for these reasons, the motion is dismissed, with leave to the defendants to arrange another defence medical examination with Dr. Yufe or another neurologist at a location within a 30-minute drive of the plaintiff’s residence.

[21] With respect to the issue of costs, the plaintiff’s position on this motion was ordered. In advance of the hearing, the plaintiff proposed that the examination take place at a location closer to the plaintiff’s residence. If the plaintiff was successful in opposing the motion, the defendants did not take issue with the amount of costs sought by the plaintiff, being the all-inclusive sum of $7,768.75.

[22] Order to go as follows:

1. The motion is dismissed with leave to the defendants to arrange another defence medical examination with Dr. Yufe, or another neurologist, at a location within a 30-minute drive from the plaintiff’s residence.

2. Costs of this motion are fixed in the all-inclusive sum of $7,768.75, payable by the defendants to the plaintiff, within 30 days.

Master B. McAfee

Date: May 31, 2021