SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Usha Letchumanan
- and -
Anushiya Jeyaseelan and Jeyaseelan Krishnamoorthy
COUNSEL: Chris Lupis, for the Defendants/Moving Party
Kevan Wylie, for the Plaintiff/Responding Party
HEARD: July 27, 2021
E N D O R S E M E N T
The Plaintiff claims damages in relation to a car accident involving the Defendants. The Defendants have known for many years that the Plaintiff’s physical and mental health are both at issue in this action.
The Defendants now bring a motion pursuant to s. 105(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 to compel the Plaintiff to attend a defence psychiatric examination on September 9, 2021.
Due to the COVID-19 pandemic and its impact on civil jury trials, the parties’ May 2020 jury trial was adjourned to the January 2022 sittings. Despite the matter being set down for trial, given the ongoing court delays associated with the pandemic, I am prepared to hear the Defendants’ motion on its merits: Rule 48.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
The Defendants say that they are prima facie entitled to one defence medical on consent or by order of the court: Coll v Robertson et al., 2021 ONSC 2124 at para. 9. They say that their right to make full answer and defence will be jeopardized if they are not permitted to conduct their own examination of the Plaintiff. They have not obtained any other expert medical reports. While the Defendants have access to independent examinations conducted in the accident benefits context, they say that these assessments are not an adequate substitute for an independent medical assessment.
However, where the party seeking an assessment has delayed, the onus on it is “a heavy one”: Bobcock v. Destefano, 2016 ONSC 5352 at para. 13. At some point, the prejudice to the Plaintiff of delaying the trial will outweigh the Defendants’ desire for an independent examination. This is especially the case in circumstances like this, where the Plaintiff has acted prudently to move the matter along and provided timely and ongoing disclosure: Chew v Munoz, 2016 ONSC 5352, at paras. 17-18.
The Defendants provide no adequate reason for their inordinate delay or failure to take appropriate steps to obtain a defence medical prior to this motion. They were aware of the relevant medical and psychological issues since at least 2018. The accident took place in 2014, this action was commenced in 2016, the Plaintiff answered defence questions about her mental health in 2017, and the Plaintiff served her expert psychiatric report on the Defendants in 2018.
The parties attended a pre-trial conference before Justice Graham on September 10, 2020. The Defendants’ brief did not include any expert reports. Justice Graham ordered that the matter go to trial in May 2021. To this point, the Defendants took no steps whatsoever to obtain a defence medical assessment.
Overall, I have real concerns that the Defendants are attempting to delay timely adjudication of this matter. The Defendants cannot use court delays associated with the pandemic as an explanation, ex post facto, for their failure to abide by the Rules of Civil Procedure back in 2020. According to Rule 53.03(1), the Defendants were required to deliver their expert report 90 days before the September 2020 pre-trial conference. There is simply no good reason for failing to do so. While I note that the Defendants changed counsel at one point, their matter continued to be handled by the same firm. The court must conclude that it was a tactical decision not to obtain a defence medical.
Granting the Defendants’ relief at this late stage would be overly prejudicial the Plaintiff because it would jeopardize the upcoming trial date. This matter is rapidly going stale – over seven years have passed since the accident. The time for exchanging expert reports has long passed. Memories fade and available litigation resources dwindle. In the context of the ongoing pandemic, I am skeptical that the Plaintiff will receive the defence medical report in a timely manner such that she will have a fair opportunity to respond.
The Plaintiff should not be penalized because the Defendants effectively sat on their hands. The Defendants’ motion is denied.
The Defendants shall pay the Plaintiff costs on a partial indemnity basis in the amount of $3750.00 inclusive, payable within 14 days.
Mandhane J.
DATE: July 28, 2021
COURT FILE NO.: CV-16-966
DATE: 20210728
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Usha Letchumanan
- and -
Anushiya Jeyaseelan and Jeyaseelan Krishnamoorthy
COUNSEL: Chris Lupis, for the Defendants/Moving Party
Kevan Wylie, for the Plaintiff/Responding Party
ENDORSEMENT
Mandhane J.
DATE: July 28, 2021