Court File and Parties
COURT FILE NO.: CV-14-498577
DATE: 20211001
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANNA MIERZEJEWSKI
Plaintiff
- and -
MARK BROOK and 1435664 ONTARIO CORPORATION, carrying on business under the name NATIONWIDE FREIGHT SYSTEMS LTD.
Defendants
COUNSEL:
P. Michael Rotondo for the Plaintiff.
Nazli Buhary for the Defendants.
HEARD: September 29, 2021
REASONS FOR DECISION
PERELL, J.
[1] In this action for damages for personal injuries suffered from a motor vehicle accident that occurred in 2012, the Plaintiff Anna Mierzejewski appeals the Order of Associate Judge Jolley dated March 25, 2021. Ms. Mierzejewski was ordered to attend a neuropsychology defence medical examination and a physiatry defence medical examination.[^1]
[2] On this motion, Ms. Mierzejewski seeks an order: (a) staying Associate Judge Jolley’s order pending the hearing of the appeal; and (b) granting leave to admit fresh evidence for the appeal, which is scheduled for October 28, 2021.
[3] The fresh evidence is: (a) an email from Ms. Mierzejewski’s treating psychiatrist, dated March 29, 2021; (b) a report from her treating psychiatrist, dated April 14, 2021; (c) hospital records for the period of March 20 to April 1, 2021 that relate to psychiatric distress suffered by Ms. Mierzejewski; and (d) two clinical notes from Ms. Mierzejewski’s treating psychiatrist relating to Ms. Mierzejewski’s inability to comply with the order due to psychiatric distress suffered after the decision of the Associate Judge.
[4] Although initially resisted, the request for a stay is not opposed. The motion to admit fresh evidence is opposed.
[5] I grant the request for a stay with costs on a partial indemnity basis of $5,000, all inclusive, payable forthwith. For the reasons that follow, I dismiss the motion for leave to deliver fresh evidence for the appeal, without costs.
[6] At the outset of the discussion about the fresh evidence, it should be noted that Ms. Mierzejewski’s request for leave to admit fresh evidence concerns evidence of her psychiatric distress with accompanying physical symptoms that arose after the release of Associate Judge Jolley's decision on March 25, 2021.
[7] The test for the admission of fresh evidence is the four-part test laid down by the Supreme Court of Canada in a criminal case, R. v. Palmer,[^2] namely: (1) the evidence should not be admitted if, by due diligence, it could have been adduced at the hearing; (2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue; (3) the evidence must be credible in the sense that it is reasonably capable of belief; and (4) the evidence must be such that if believed it could reasonably, when taken with the other evidence adduced at the hearing trial, be expected to have affected the result.[^3] The underlying policy considerations are on the one hand the public interest in the finality to litigation, and, on the other hand, the affront to common sense involved in a Court shutting its eyes to a fact which falsifies the assessment.[^4]
[8] In the immediate case, the evidence of Ms. Mierzejewski’s psychiatric response to Associate Judge Jolley’s decision obviously could not have been adduced at the hearing since it is about Ms. Mierzejewski’s subsequent response to the outcome of the motion, and the fresh evidence is credible in the sense that it is reasonably capable of belief.
[9] However, Ms. Mierzejewski’s fresh evidence is: (a) not relevant in the sense that it bears upon a decisive or potentially decisive issue; and (b) the fresh evidence taken with the other evidence adduced at the hearing could not reasonably be expected to have affected the result of Associate Judge Jolley’s decision.
[10] The evidence and the argument at the hearing before the Associate Judge were that Ms. Mierzejewski had existing medical conditions and that she was stressed and afraid of the prospect of having to undergo a defence medical in the circumstances of the Covid-19 pandemic. The evidence and the argument concerned how the examinations might affect her physical and mental health. To respond to the motion, she presented health records and expert evidence and government health guidelines to support her position that her medical examinations posed a serious health risk having regard to her health and that she was incapable of tolerating a neuropsychological assessment. Early in her Reasons for Decision, the Associate Judge notes that Ms. Mierzejewski does not consent to attending the examinations in person, given the pandemic and her compromised health situation and that she generally does not leave her home unless necessary.
[11] In the immediate case, the fresh evidence is temporarily new; however, the fresh evidence is at worse, stale evidence, or, at best, it just confirms evidence of the genuine concerns that animated Ms. Mierzejewski’s long-standing refusal to attend an in-person and prolonged medical examination. Evidence about Ms. Mierzejewski’s psychiatric response to Associate Judge Jolley’s decision does not change Ms. Mierzejewski’s evidence that was proffered or could have been proffered with due diligence at the hearing before the Associate Judge.
[12] Put differently, if the Associate Judge erred in dealing with the matter of Ms. Mierzejewski’s having an adverse psychiatric and harmful reaction to a defence medical, then the fresh evidence is redundant, and it will not assist the appellate court in deciding whether the Associate Judge erred in exercising her discretion to order a defence medical notwithstanding Ms. Mierzejewski’s concerns about undergoing a defence medical in the circumstances of the Covid-19 pandemic. If the evidence is not redundant then it is psychiatric opinion evidence that could have been presented with due diligence at the hearing.
[13] Put still differently, the genuineness of Ms. Mierzejewski’s fears and the genuineness of her vulnerabilities to infection from Covid-19 were before the Associate Judge and decided by the Associate Judge and Ms. Mierzejewski’s psychiatric response to the Associate Judge’s Order is an irrelevant meta-issue that will not change the arguments or the basis for them on Ms. Mierzejewski’s appeal. The appellate court would not be shutting its eyes to a new fact that falsifies the Associate Judge’s act of discretion. The appellate court will, with or without the so-called fresh evidence, be able to do justice.
[14] Apart from temporality there is no new fact about Ms. Mierzejewski’s long-standing hesitancy to undergo an in-person defence medical because of her pre-existing conditions and the perils of the pandemic. If the Associate Judge exercised her discretion erroneously, then that will be apparent and correctable by the appellate court without the fresh evidence of the meta-issue of Ms. Mierzejewski’s psychiatric response to the Associate Judge’s Order. That evidence is not necessary to deal fairly with the issues on the appeal.
[15] For the above reasons, I grant the request for a stay with costs on a partial indemnity basis of $5,000, all inclusive, payable forthwith and I dismiss the motion for leave to deliver fresh evidence for the appeal, without costs.
[16] My explanation for the costs award is that in the run-up to the motion for a stay and for leave to admit fresh evidence, the bulk of the legal work was with respect to the request for a stay. The defendant, however, did not abandon its opposition to a stay until recently. Ms. Mierzejewski was the successful party with respect to the stay, and she should receive her reasonable costs. As for the motion for leave to deliver fresh evidence, the issue was somewhat novel and neither party was able to find a case precisely on point. The matter was well argued by both sides, and in these circumstances, in my opinion, the appropriate order is to make no further order as to costs.
[17] Order accordingly.
Perell, J.
Released: October 1, 2021
COURT FILE NO.: CV-14-498577
DATE: 20211001
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANNA MIERZEJEWSKI
Plaintiff
- and -
MARK BROOK and 1435664 ONTARIO CORPORATION, carrying on business under the name NATIONWIDE FREIGHT SYSTEMS LTD.
Defendants
REASONS FOR DECISION
PERELL J.
Released: October 1, 2021
[^1]: Mierzejewski v. Brook, 2021 ONSC 2295.
[^2]: 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 at p. 777.
[^3]: Brown v. Hanley, 2019 ONCA 395; Visagie v. TVX Gold Inc. (2000), 2000 CanLII 5749 (ON CA), 49 O.R. (3d) 198 at p. 216 (C.A.); Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 2, [2000] 1 S.C.R. 44; Sengmueller v. Sengmueller(1994), 1994 CanLII 8711 (ON CA), 17 O.R. (3d) 208 (C.A.).
[^4]: Mercer v. Sijan, (1976), 1974 CanLII 671 (ON SC), 4 O.R. (2d) 12 at 17 (C.A.).