COURT FILE NO.: CV-17-571857
DATE: 20211116
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KENDRA LOUISE D’EON
Plaintiff
(Appellant/ Respondent in Cross-Appeal)
– and –
ZAHRA HOSSEINI, TOYOTA CREDIT CANADA INC. and TD INSURANCE, operating as SECURITY NATIONAL INSURANCE COMPANY
Defendants
(Respondents/ Appellants in Cross-Appeal)
Ashu Ismail, for the Plaintiff
(Appellant/ Respondent in Cross-Appeal)
David Zarek, for the Defendants, Zahra Hosseini and Toyota Credit Canada Inc. (Respondents/Appellants in Cross-Appeal)
HEARD
(by Videoconference): June 29, 2021, July 19 and 20, 2021
A.A. SANFILIPPO J.
reasons for decision
Overview
[1] The Plaintiff, Kendra Louise D’Eon, brings this action for damages said to arise from a motor vehicle accident that occurred on September 15, 2016. Ms. D’Eon alleges that she sustained personal injury when the motorcycle that she was operating that day was struck from behind by a motor vehicle operated by the Defendant, Zahra Hosseini, and owned by the Defendant Toyota Credit Canada Inc. The Defendants Zahra Hosseini and Toyota, whom I shall refer to collectively as the “Defendants”, considering that this action has been discontinued against the other named defendant, TD Insurance, operating as Security National Insurance Company, deny any liability.
[2] The Defendants brought a motion for multiple categories of relief, including the following: (i) leave to amend their statement of defence; (ii) an order to remove the counsel of record for the Plaintiff; (iii) orders requiring the Plaintiff to attend at three independent medical examinations including an order that the Plaintiff, through her counsel, cease writing to the proposed experts; (iv) an order that the Plaintiff re-attend at examination for discovery to answer questions arising from undertakings and refusals previously given. The Plaintiff delivered a cross-motion for an order to remove the counsel of record for the Defendants, which was abandoned.
[3] The Defendants’ motion was heard on November 27, 2020 and January 22, 2021 by Associate Judge J. Josefo.[^1] By Endorsements issued on December 4, 2020[^2] and January 25, 2021[^3], the Associate Judge granted part of the relief sought by the Defendants.
[4] The Plaintiff brought this appeal to quash five orders rendered by the Associate Judge and, alternatively, that this Appeal Court substitute its own orders for those quashed. By cross-appeal, the Defendants appealed the Associate Judge’s denial of leave for a proposed amendment of their statement of defence.
I. THE ASSOCIATE JUDGE’S DECISION
A. Background
[5] The Associate Judge noted the Defendants’ admission that the motor vehicle accident of September 15, 2016 occurred when the “front of their motor vehicle touched the back of the Plaintiff’s motorcycle”.[^4] The parties’ disagreement is not with the fact that a collision occurred, but rather with its consequences.
[6] The Defendants contended that the collision was minor, resulting in only modest property damage. The Plaintiff pleaded that she sustained profound injuries “to various parts of her body, including, but not limited to, concussion, traumatic brain injury and cognitive and psychological impairments.”[^5] The Plaintiff pleaded “permanent and serious impairments of important physical, mental, and psychological functions” including “decreased mobility of her neck, back and upper extremities, diminished energy and stiffness which continue to the present and will continue in the future”.[^6] The Plaintiff claims damages of $4,350,000.
[7] The pleadings were closed in this action on June 19, 2017, and examinations for discovery and mandatory mediation were completed by February 7, 2019. On October 19, 2020, the Defendants brought a motion for multiple areas of relief. The Plaintiff brought a cross-motion. It is important to note the breadth of the relief sought, in motions that came to be scheduled for a full day hearing. The Defendants sought the following:
(a) An Order granting leave to the Defendants to amend their Statement of Defence.
(b) An Order removing Joseph Campisi as lawyer of record for the Plaintiff.
(c) An Order that the Plaintiff produce answers to outstanding undertakings and refusals.
(d) An Order that the Plaintiff produce a further and better affidavit of documents.
(e) An Order that the Plaintiff attend a further examination for discovery in respect of questions arising from undertakings and refusals.
(f) An Order that the Plaintiff attend independent examinations/ assessments with Dr. Karen Wiseman, Dr. Paul Marks and Ms. Jennifer Chladry,[^7] and as a condition of these attendances, that the Plaintiff through her counsel cease writing to the Defendants’ experts or proposed experts.
[8] The Plaintiff delivered a cross-motion seeking the following relief:
(a) An Order removing Zarek Taylor Grossman Hanrahan LLP as counsel of record for the Defendants.
(b) An Order requiring the Defendants to pay the Plaintiff for records requested.
[9] The Defendants’ Motion Record and supplementary affidavits totaled 500 pages and a 40-page factum. The Plaintiff’s Cross-Motion Record and supplementary affidavit totaled 275 pages and a 42-page factum. The parties engaged in cross-examination of three affiants, all lawyers from their respective law firms, and filed excerpts of transcripts conducted in the course of three days. Over 1,000 pages of material was filed on these motions.
[10] To provide context into these contentious motions, I pause to observe the basis for the reciprocal motions to remove all the lawyers of record for all parties in this action. The Defendants contended that the Plaintiff, a lawyer, had been taught insurance law by her counsel, Mr. Campisi, in his capacity as an adjunct professor at the law school attended by the Plaintiff and that, by virtue of enrolment in this course, she was a “sophisticated litigant” in a position to “exaggerate, manipulate and/or […] over report any alleged injuries and symptoms”. The Defendants maintained that they intend to call the Plaintiff’s lawyer to testify at trial regarding his role in teaching the Plaintiff “how to prosecute and litigate a claim for personal injury”, and thereby he could no longer act as counsel for the Plaintiff. Through her cross-motion, the Plaintiff submitted that she had heard a guest lecture presented by a partner of the law firm representing the Defendants, and since she intended to call this lawyer to testify at trial on the content of his lecture, the Defendants’ lawyers had to be removed from record.
[11] The Associate Judge dismissed the Defendants’ motion to remove the lawyers of record for the Plaintiff. This Order was not appealed. The Plaintiff abandoned her cross-motion.
B. The Orders Rendered on Motion
[12] The Defendants’ motion was heard over two days, November 27, 2021 and January 22, 2021. Between the two hearing days, the Associate Judge rendered the following Orders on December 4, 2020:
(a) The Defendants were granted leave, under Rule 26 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to amend paras. 4 and 7 (except the first sentence) of their statement of defence, but the Defendants’ motion to amend para. 8 of their statement of defence was dismissed.
(b) The Defendants’ motion to remove the Plaintiff’s solicitor of record was dismissed (as noted above).
(c) The Plaintiff was ordered to attend at the following assessments, without the conditions demanded by the Plaintiff: (i) an orthopaedic assessment by Dr. Paul Marks, orthopedic surgeon; (ii) a neuropsychological examination by Dr. Karen Wiseman, a neuropsychologist; (iii) a vocational assessment by Ms. Jennifer Chladry, vocational assessor.
(d) Counsel for the Plaintiff was ordered not to communicate with the Defendants’ previous or currently engaged experts/ assessors.
[13] After the second hearing day, the Associate Judge rendered the following orders on January 25, 2021:
(a) The Plaintiff’s claim for litigation privilege over a video/audio recording made shortly after the accident of September 15, 2016 was denied.
(b) The Plaintiff was ordered to re-attend at examination for discovery to answer questions properly arising from answers to undertakings and questions refused which were agreed or ordered to be answered, subject to the time limit set out in Rule 31.05.1(1).
[14] The Plaintiff appeals from certain of the relief granted by the Associate Judge, and the Defendant brought a cross-appeal from the Associate Judge’s denial of one part of the requested pleading amendment, as I will now explain.
II. THIS APPEAL AND CROSS-APPEAL
A. Relief Sought on Appeal
[15] The Plaintiff brought this Appeal for the following relief:
(a) An Order quashing the Associate Judge’s Order that the Plaintiff attend at the independent medical examinations by Dr. Wiseman, Dr. Marks, and Ms. Chladry.
(b) An Order quashing the Associate Judge’s Order that the Plaintiff shall not communicate with the Defendants’ previous or currently engaged independent experts/ assessors.
(c) An Order quashing the Associate Judge’s Order that the Plaintiff re-attend at her examination for discovery to answer questions properly arising from answers to undertakings, and questions ordered or agreed to be answered.
(d) Alternatively, the Appellants requested that the Appeal Court substitute its own orders for those rendered by the Associate Judge.
[16] The Defendants brought a Cross-Appeal for an Order reversing the Associate Judge’s denial of the leave sought by the Defendants to amend para. 8 of their statement of defence.
B. Standard of Review
[17] The standard of review on an appeal from a decision of an Associate Judge is well-established. A decision of an Associate Judge will be interfered with by an appellate court on review only if the Associate Judge made an error of law, reviewable on a correctness standard, or exercised his discretion on the wrong principles or misapprehended the evidence such that there is a palpable and overriding error: Zeitoun v. Economical Insurance Group (2008), 2008 CanLII 20996 (ON SCDC), 91 O.R. (3d) 131 (Div. Ct.), at paras. 40-41, aff’d 2009 ONCA 415, 96 O.R. (3d) 639; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401; BMW Canada Inc. v. Autoport Limited, 2019 ONSC 4299 (Div. Ct.), at para. 9, rev’d on other grounds, 2021 ONCA 42, 456 D.L.R. (4th) 443; Silva v. John Doe, 2016 ONSC 307, 129 O.R. (3d) 298, at para. 56; Shibish v. Scher, 2015 ONSC 1844, at para. 15.
[18] An appeal from a decision by an Associate Judge is not a rehearing: Prescott v. Barbon, 2018 ONCA 504, 141 O.R. (3d) 616, at para. 11, citing Wellwood v. Ontario Provincial Police, 2010 ONCA 386, 102 O.R. (3d) 555, at para. 28: “An appellate court cannot substitute its interpretation of the facts or reweigh the evidence simply because it takes a different view of the evidence from that of the master.” The Court of Appeal stated that “it is not for an appellate court judge to reweigh the evidence and substitute another discretionary decision for that of the Master”: Prescott, at para. 11.
[19] In consideration of findings or inferences of fact made by an Associate Judge, an appellate court will provide deference and not interfere where there is some evidence on which the Associate Judge could have relied to reach their decision: Silva, at para. 57, relying on Shibish, at para. 17.
[20] “Palpable and overriding error” can be understood as a standard of “clearly wrong”: H.L., at para. 69. An appellate court may intervene if “there is an obvious error in the trial decision that is determinative of the outcome of the case”: Salomon v. Matte-Thompson, 2019 SCC 14, [2019] 1 S.C.R. 729, at para. 33. A palpable and overriding error is not “a needle in a haystack”, but “a beam in the eye”: Salomon, at para. 33. If a decision-maker has “committed a palpable and overriding error or made findings of fact that are clearly wrong, unreasonable, or unsupported by the evidence”, then an appellate court may make its own findings and draw its own inferences: H.L., at para. 89.
III. ANALYSIS
[21] The Appeal and Cross-Appeal raise the following issues for determination:
Did the Associate Judge err in denying the Defendants’ proposed pleading amendment?
Did the Associate Judge err in ordering that the Plaintiff re-attend at her examination for discovery to answer questions properly arising from answers to undertakings, and questions ordered or agreed to be answered?
Did the Associate Judge err in ordering that the Plaintiff attend at assessments by Dr. Marks, Dr. Wiseman and Ms. Chladry without the conditions sought by the Plaintiff?
Did the Associate Judge err in ordering that that the Plaintiff not communicate with the Defendants’ previous or currently engaged independent experts/ assessors?
[22] I will now turn to analysis of these issues.
A. Did the Associate Judge err in denying the Defendants’ proposed amendment?
[23] The Defendants sought leave to amend their statement of defence by adding three paragraphs, which I will reproduce in full to provide context for discussion of the amendment that the Associate Judge denied:
The Defendants deny any liability for the accident described at paragraph 7 of the Statement of Claim. The Defendants do admit the front of their motor vehicle touched the back of the plaintiff's motorcycle at a low speed and the Defendants state that the property damage to their vehicle and the plaintiff's motorcycle was minor.
The Defendants state and the fact is that this was a low speed minor property damage accident. The Defendants state that the Plaintiff has been called to the bar as a lawyer in Ontario. Her employment experience has been primarily in litigation arising from accident benefit and tort motor vehicle accident claims. Subsequent to the subject motor vehicle accident, the Plaintiff attended a seminar discussing the diagnosis and treatment of concussions as they relate to litigation as part of her Continuing Professional Development requirements.
The Defendants allege that through education, training and experience, in particular, taking a course from Mr. Joe Campisi on Insurance Law, articling with FSCO and working for TD Insurance as a defence attorney in insurance matters, the Plaintiff is a sophisticated litigant and is in a position to exaggerate, manipulate and/or or over report any alleged injuries and symptoms which were allegedly sustained as a result of the motor vehicle accident (which are not admitted but denied) in order to try to increase the amount that she can claim from this motor vehicle incident.
[24] The Plaintiff consented to the amendment to paragraph 4. The Associate Judge granted the amendment to paragraph 7, except for the first sentence which was denied on the basis that it was repetitive with, and thereby redundant to proposed paragraph 4.[^8] The Defendants did not appeal the Associate Judge’s denial of the proposed amendment to the first sentence of paragraph 7.
[25] The Associate Judge denied the amendment to paragraph 8. This is the Order that the Defendants have appealed.
[26] In considering the contested amendments to proposed paragraphs 7 and 8, there is no question that the Associate Judge was aware of the correct test. He identified correctly that Rule 26 applied, and that while the Defendants were “quite late in the day” to seek pleading amendments, considering that they had completed a Trial Certification twenty-one months earlier, the Associate Judge properly identified that Rule 26 provides that leave shall be granted “at any stage of the action”.[^9]
[27] The Associate Judge stated, again correctly, that there is no absolute right to amend pleadings. This principle was stated by the Court of Appeal in Marks v. Ottawa (City), 2011 ONCA 248, 280 O.A.C. 251, at para. 19: “Although the general rule is that amendments are presumptively approved, there is no absolute right to amend pleadings. The court has a residual right to deny amendments where appropriate.” The Court of Appeal summarized the factors pertinent to consideration of a pleading amendment, which included: “No amendment should be allowed which, if originally pleaded, would have been struck”: Marks, at para. 19.
[28] Citing Panalpina Inc. v. Sharma, 1988 CarswellOnt 459 (S.C.), at para. 31, the Associate Judge engaged in an analysis of whether the proposed amendments were tenable. In Marks, at para. 19, footnote 2, the Court of Appeal left open the question of whether a Master had the jurisdiction to deny a pleading amendment on the basis that it was not tenable, as questioned by the Divisional Court in Herzig v. Markham (Town), [2007] O.J. No. 4873 (Div. Ct.), at para. 7. However, the Divisional Court has since stated, in Damiani v. Toronto Hydro Corporation, 2019 ONSC 284 (Div. Ct.), at para. 5, that a Master “can consider whether proposed amendments constitute an abuse of process, conform with the rules of pleadings and are, on their face, tenable at law”, citing National Trust Co. v. Furbacher, [1994] O.J. No. 2385 (S.C.), at para. 6.
[29] Recently, in Bouragba v. Conseil Scolaire de district de l’est de l’Ontario, 2021 ONSC 287 (Div. Ct.), at para. 53, the Divisional Court held that a Master had jurisdiction to inquire into whether pleading amendments were tenable: “Master Fortier was required to look at the merits of the Appellants’ proposed amendments to ensure that they were tenable at law. If they were not, Master Fortier was well within her jurisdiction to refuse to grant the Appellants’ amendments to the Statement of Claim.” See also Prollenium International Corporation v. Vital Esthetique Sarl, 2020 ONSC 1704, at paras. 54-56, leave to appeal refused, 2021 ONSC 2209 (Div. Ct.); Tarkalas v. Zographos (2008), 2008 CanLII 46158 (ON SCDC), 234 O.A.C. 172 (Div. Ct.), at para. 26; Tarra Engineering Inc. v. Naghshbandi, 2017 ONSC 3778, at paras. 45-47.
[30] The Associate Judge thereby properly directed himself regarding the principles that guided his assessment of whether the proposed pleading amendments were tenable, and did so by application of Rule 25.11, which authorizes Associate Judges to strike or expunge all or part of a pleading, further to the principle that no amendment should be allowed which, if originally pleaded, would have been struck.
[31] On this analysis, the Associate Judge declined to grant leave for the proposed paragraph 8 on the basis that it “portrays the plaintiff in a very negative light, ‘bearing cruelly on her moral character’” and “is essentially calling the plaintiff the next thing to a civil fraudster”.[^10] The Associate Judge found that these allegations “are unbecoming for the Court to hear” and have “no legal potential other than to besmirch the plaintiff through innuendo.”[^11] The Associate Judge concluded that had the proposed paragraph 8 been pleaded by the Defendants, it could have been struck under Rule 25.11, and thereby was an untenable, and scandalous, pleading.[^12]
[32] The analysis conducted by the Associate Judge follows the principles well-established by the Court in considering the tenability of pleadings by assessment of whether the pleading engages Rule 25.11: Stedfasts Inc. v. Dynacare Laboratories, 2020 ONSC 8008, at paras. 33-36; Dugal v. Manulife Financial Corporation, 2011 ONSC 387, at para. 25; 876502 Ontario Inc. v. I.F. Propco Holdings (Ontario) 10 Ltd., 1997 CanLII 12196 (Ont. Gen. Div.); Andersen Consulting v. Canada (Attorney General), 2001 CanLII 8587 (Ont. C.A.), at para. 37; Aviva Canada Inc. v. Lyons Auto Body Limited, 2019 ONSC 6778, at paras. 35-36. A pleading may be struck because it “serves no purpose other than to add colour or argument and to disconcert or humiliate the opponent”: Aviva Canada, at para. 36.
[33] Further, I observe that the Associate Judge’s refusal to grant the pleading amendment does not prevent the Defendants from arguing that the Plaintiff has exaggerated her claim. The Defendants have so pleaded in para. 10 of their statement of defence,[^13] and the Defendants were granted the amendment to paragraph 7 to plead that the Plaintiff is a lawyer with experience in litigation who has attended educational programs that discuss the diagnosis and treatment of concussions.
[34] I see no error by the Associate Judge in denying the Defendants’ requested pleading amendment to proposed paragraph 8 of the statement of defence. The Associate Judge identified the correct legal principles and applied them without error. I will not interfere with his determination.
B. Did the Associate Judge err in ordering that the Plaintiff re-attend at her examination for discovery to answer questions properly arising from answers to undertakings, and questions ordered or agreed to be answered?
[35] On the second day of the hearing of the Defendants’ motion, the Associate Judge determined that the Plaintiff could not maintain a claim of litigation privilege for a video and audio recording that she made shortly after the collision. He also ordered that the Plaintiff re-attend at discovery to answer questions arising from new productions, and questions reasonably arising from undertakings and questions refused, writing as follows:
In my view, accordingly, the plaintiff must re-attend to answer questions properly arising from answers to undertakings and questions refused which were agreed or ordered to be answered.
Yet, this shall not be open-ended. While the claim is large, and this is “high-stakes” litigation, proportionality pursuant to Rule 31.05(1) applies. Failing agreement amongst counsel regarding the length of time for such re-attendance, the limit set out in that Rule will be the maximum time allocated for such re-attendance.[^14]
[36] The Appellant submits that the Associate Judge erred in law in ordering that the Plaintiff re-attend to answer questions previously refused, and misapprehended the evidence. The Appellant contends that the Associate Judge did not have any evidence of a question refused or undertaking that could support an order requiring the Plaintiff’s reattendance at examination. I disagree, for reasons that I will now explain.
[37] The Associate Judge identified, correctly in my view, that Rule 31.03(1) allows a party to conduct a single examination, unless the Court orders otherwise. The Associate Judge considered whether the Defendants had established the basis for a re-attendance by the Plaintiff to answers questions arising from further productions, answers to undertakings and questions refused, referring to S.E. Lyons & Son Ltd. v. Nawoc Holdings Ltd. (1978), 1978 CanLII 1429 (ON SC), 20 O.R. (2d) 234 (S.C.), and Guest v. Hirst, 2012 ONSC 86, wherein orders were rendered for further examination to address subsequently produced evidence as a matter of fairness.
[38] The principles stated in the cases referred to by the Associate Judge are reflected in case law relied on by the Appellant. In Senechal v. Muskoka (Municipality), 2005 CanLII 11575 (Ont. S.C.), at para. 7, referred to with approval in Blais v. Toronto Area Transit Operating Authority, 2011 ONSC 1880, at para. 63, Master MacLeod, as he then was, held that “[a]s a general principle a party giving undertakings or answering refusals may be required to reattend to complete the discovery by giving the answers under oath and answering appropriate follow-up questions…. The court will generally make such an order if it appears necessary in order to fulfill the purposes of discovery.”
[39] In my view, the Associate Judge correctly identified the legal principles applicable to an order for a party to re-attend at an examination. I turn then to the Appellant’s submission that the Associate Judge did not have an evidentiary basis on which to make this order.
[40] The Associate Judge ordered that the Plaintiff produce a video and audio recording that the Plaintiff had refused to produce. This alone provides a basis for an order for re-attendance to answer questions arising from this previously refused production. In addition, the Associate Judge had evidence of an Undertakings and Refusals Chart, with some 23 undertakings or questions refused arising from the last examination conducted of the Plaintiff on February 21, 2018,[^15] together with sworn evidence by Ms. Baxter, lawyer for the Defendants, that the Plaintiff had not answered all undertakings. Ms. Baxter also deposed that since the last day of the Plaintiff’s examination, the Plaintiff has produced her redacted employment file (73 pages) and OHIP summary.
[41] I do not see any reversible error by the Associate Judge in ordering that the Plaintiff re-attend at examination. The Associate Judge’s reasons show a correct understanding of the applicable legal principles, and there was ample evidence on which to grant the order for the Plaintiff’s re-attendance at examination. I will not interfere with this order.
C. Did the Associate Judge err in ordering that the Plaintiff attend at assessments by Dr. Wiseman, Dr. Marks and Ms. Chladry without the conditions sought by the Plaintiff?
(a) The Associate Judge’s Decision on Independent Medical Examinations
[42] I will first explain the Associate Judge’s decision in ordering the three independent medical examinations and will then analyse the Plaintiff’s/ Appellant’s position that the order was rendered in error.
[43] The Associate Judge identified correctly that s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and Rule 33 permit the Court to order the Plaintiff to attend at a physical or mental examination. Specifically, Rule 33.01 provides as follows:
A motion by an adverse party for an order under section 105 of the Courts of Justice Act for the physical or mental examination of a party whose physical or mental condition is in question in a proceeding shall be made on notice to every other party.
[44] The Associate Judge analysed the historic context of the parties’ dispute regarding the Defendants’ request for an independent medical examination, principally in consideration of the Defendants’ request that the Plaintiff be precluded from contact with the defence medical assessor, which I will address shortly. The Associate Judge found that even prior to the June 4, 2019 retainer by the Defendants of their current legal counsel, the Plaintiff had consented to a medical examination to be conducted by Dr. Paul Comper, Ph.D., C.Psych, who practices in clinical neuropsychology, rehabilitation and counselling psychology.
[45] The Associate Judge found that the Plaintiff’s lawyer, Mr. Campisi, wrote a letter to Dr. Comper on May 1, 2019 in regard to the independent medical examination then scheduled, on consent, to be conducted on September 13, 2019, with the result that, on July 16, 2019, Dr. Comper declined to continue with his retainer and cancelled the appointment. The Associate Judge determined that the Plaintiff’s counsel’s communication to Dr. Comper was improper and was the direct cause of Dr. Comper declining to conduct the independent medical examination.[^16] Based on my review of the Plaintiff’s counsel’s letter and the Associate Judge’s reasoning, I find that the Associate Judge had ample evidence on which to make these findings.
[46] On Dr. Comper’s withdrawal, the Defendants sought the Plaintiff’s consent to an independent neuropsychological examination by Dr. Karen Wiseman, similarly qualified to Dr. Comper and, indeed, to the Plaintiff’s expert neuropsychologist, Dr. Lara Davidson. The Associate Judge found that this independent medical examination did not proceed and that, again, Mr. Campisi wrote a letter to Dr. Wiseman, on July 22, 2020, that the Associate Judge found was “equally inappropriate” to the letter that Mr. Campisi had written to Dr. Comper.[^17] I find that the Associate Judge had ample evidence on which to make this finding.
[47] The Associate Judge explained his determination that the Plaintiff attend at the three independent medical examinations requested by the Defendants (by neuropsychologist Dr. Wiseman, orthopaedic surgeon Dr. Marks, and vocational assessor, Ms. Chladry), in the following paragraphs:[^18]
Should the requested IMEs sought in this case be allowed to proceed? In my view, the defendants are within their rights to seek such examinations. Paragraph 10 of the claim clearly puts in issue the “cognitive and organic impairments” of the plaintiff, asserting that “the full extent of injuries are not yet known”, but will be before the trial. Paragraph 11 refers to “permanent and serious impairments of physical, mental and psychological functions” of the plaintiff. Orthopaedic and neuropsychological issues are thus seemingly likely relevant, and areas to be appropriately evaluated by defendants.
As pertains to the vocational assessor, this too is reasonable, given the claim of the plaintiff that she is fully disabled from working as a lawyer for the long-term, and thus entitled to over four million dollars in damages. What work, as a lawyer or otherwise, can she do, if any at all? This is a reasonable question for the defendants to pose in the circumstances of this case, and an issue which they are entitled to investigate.
I thus order the three IME’s sought by the defendants to proceed, without conditions.
[48] The Appellant submitted that the Associate Judge erred by failing to identify and to apply the appropriate test for an order for these three independent medical examinations and by failing to weigh the evidentiary record. The Respondents submitted that the Associate Judge had an ample record on which to render his order for three independent medical examinations and was correct in the result.
(b) Analysis – Independent Medical Examinations
[49] In Rysyk v. Booth Fisheries Canadian Co. (1971), 1970 CanLII 510 (ON CA), 14 D.L.R. (3d) 539 (Ont. C.A.), at p. 540, the Court of Appeal explained that a party has a substantive right to respond to an expert report, as a matter of trial fairness: “It is plain that, if the defence proceeds to trial without the advantage of the examinations sought, it could be seriously prejudiced.” Where the physical or mental condition of a party to a proceeding is placed in issue, the Court may order the party to undergo a physical or mental examination by one or more health practitioners, in accordance with ss. 105(2) and (4) of the Courts of Justice Act. The order is discretionary in nature:
105(2) Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may, order the party to undergo a physical or mental examination by one or more health practitioners.
(4) The court may, on motion, order further physical or mental examinations. [Emphasis added]
[50] The court has the discretion to order more than one independent medical examination, where it is established that more than one specific physical or mental condition is placed in issue, but “the defendant is not entitled to multiple examinations as of right”: Van Dijk-Alac v. Aviva General Insurance Company, 2021 ONSC 1344, at para. 12. Where the court orders a second or further examination of the party, the court may impose “such terms respecting costs and other matters as are just”: Rule 33.02(2).
[51] The parties did not contest on this appeal that a defendant has at least a “one time right” to an independent medical examination where the plaintiff has placed into issue her mental condition. Justice Reilly stated this succinctly in Fehr v. Prior, 2006 CanLII 43490 (Ont. S.C.), at para. 5: “It is clear that as long as a person’s physical or mental condition is relevant to a material issue in the proceeding and there is good reason to believe that there is substance to the allegation raised by another party, a party to such litigation is entitled to at least one examination (physical or mental) by one health care practitioner. Any further examination must be undertaken either with the consent of the party to be examined or with leave of the court.”
[52] The parties agreed, further, that the legal principles that apply to the ordering of further physical or mental examinations are well-established, as set out by Justice D.M. Brown, as he then was, in Bonello v. Taylor, 2010 ONSC 5723, at para. 16, and as recently cited and applied by Justice Lemon in Van Dijk-Alac, at para. 14, and in Mork v. Sanghera, 2016 ONSC 5108, at para. 9:
Although the determination of whether to order a second or further examination by a health practitioner must turn on the specific facts and equities of a case, a body of case-law has developed around when a second or further examination may be ordered under CJA s. 105 and Rule 33. The leading principles can be summarized as follows:
(i) The party seeking the order for a further examination must demonstrate that the assessment is warranted and legitimate, and not made with a view to delaying trial, causing prejudice to the other party, or simply corroborating an existing medical opinion;
(ii) A request may be legitimate where there is evidence that (i) the party’s condition has changed or deteriorated since the date of a previous examination, (ii) a more current assessment of the plaintiff’s condition is required for trial, (iii) the plaintiff served specialist reports from new assessors after the defendants had conducted their medical assessments, or (iv) some of the party’s injuries fall outside the expertise of the first examining health practitioner;
(iii) Some cases take the view that the need for a “matching report” – i.e. a report from a defence expert witness in the same specialty as a plaintiff’s expert – is not, in and of itself, a sufficient reason to order a further defence medical. . . I would venture that trial fairness should operate as the guiding principle in this area, so if the plaintiff has decided that expert evidence from one specialty based on an examination of the plaintiff is relevant to the adjudication of her claim at trial, courts should be loathe to deny the defence a fair opportunity to respond with expert evidence from the same specialty based on an assessment of the plaintiff. Ordering further examinations may be just where they are necessary to enable the defendant fairly to investigate and call reasonable responding evidence at trial;
(iv) Where the request is for the examination of the plaintiff by a person who is not a health practitioner, such as a rehabilitation expert, the defendant must demonstrate that the proposed examination is necessary as a diagnostic aid to the health practitioner who is conducting the defence medical examination;
(v) A request for a second examination must be supported by sufficient evidence to persuade a court of the need for the further examination. What constitutes sufficient evidence will vary from case to case….
(vi) While fairness, or “creating a level playing field”, may constitute a legitimate reason for ordering a second examination, someone with knowledge of the evidence in the case must provide evidence of unfairness for the court to consider; and,
(vii) A court should consider whether the request for a further examination would impose an undue burden on the plaintiff in light of the number of examinations already conducted of her by the defence. [Footnotes omitted.]
[53] I turn now to whether the Associate Judge erred in ordering that the Plaintiff undergo independent medical examinations by neuropsychologist Dr. Karen Wiseman, orthopaedic surgeon Dr. Paul Marks, and vocational assessor, Ms. Jennifer Chladry.
(c) Order for Independent Medical Examination by Dr. Wiseman
[54] The Plaintiff pleaded that the injuries that she sustained in the motor vehicle collision include but are not limited to: (a) concussion; (b) traumatic brain injury; and (c) cognitive and psychological impairments.[^19] The evidentiary record on the motion showed that the following reports have been prepared at the request of the Plaintiff, and produced by the Plaintiff.
(a) Psychological Assessment Report by Dr. Jacqueline Brunshaw, Ph.D., C.Psych., Registered Clinical and Rehabilitation Psychologist, and Joanne Pilon, Registered Psychotherapist, dated October 26, 2018.
(b) Neurology Consultation Report by Dr. Marie N. Slegr, MD, FRCP(C), neurologist, dated February 24, 2019.
(c) Occupational Therapy Assessment Report by Dr. Melissa Paniccia, Ph.D., MScOT, OT Reg. (Ont.), occupational therapist, dated March 27, 2019.
(d) Psychological Examination Report by Dr. Lara Davidson, PhD., C.Psych., Practice in Clinical Neuropsychology, Clinical Psychology and Rehabilitation Psychology, dated March 27, 2019.
(e) Primary Care Physician Report by Dr. Andrea Herschorn, dated April 5, 2019.
(f) Psychological Legal Report by Joanne Pilon, psychotherapist, dated May 10, 2019.
[55] As explained earlier, the Associate Judge’s analysis of the historical context showed that the Defendants’ first request for an independent medical examination was in 2019 and was for the Plaintiff to submit to an examination by Dr. Comper, a neuropsychologist. This independent medical examination was not cancelled by any disagreement between the parties regarding its appropriateness or the Defendants’ entitlement to an independent medical examination into the Plaintiff’s mental condition, but rather by Dr. Comper’s refusal to continue in light of the conduct of the Plaintiff’s counsel.
[56] I conclude that there was ample record for the Associate Judge to find the following:
(a) the Plaintiff has placed her mental condition in issue in this action;
(b) there is substance to this issue in that the Plaintiff has delivered at least six medical reports that addressed and provided opinions regarding her mental condition;
(c) the first independent medical examination requested by the Defendants, in 2019 with initial scheduling for September 13, 2019, was an independent medical examination by Dr. Comper and, upon his withdrawal, by Dr. Karen Wiseman. Both were shown to be neuropsychologists similarly qualified to the Plaintiff’s expert, Dr. Lara Davidson;
(d) The Plaintiff had consented to being examined by Dr. Comper, and the failure of this examination to proceed was caused by the Plaintiff, not by the Defendants; and
(e) The Defendants needed the independent mental examination to respond to the claims advanced by the Plaintiff.
[57] The Associate Judge’s determination that the Defendants were “within their rights” to seek an independent medical examination of the Plaintiff by a neuropsychologist, Dr. Wiseman, was based on an ample evidentiary record and a correct understanding of Rule 33, s. 105 of the Courts of Justice Act, and applicable case authority. I will not interfere with this determination.
[58] Last, I also find that the Associate Judge did not commit a reversible error when he declined to grant the terms or conditions proposed by the Plaintiff for the independent medical examination by Dr. Wiseman. The Associate Judge correctly identified that Rule 33.03 provides the Associate Judge with authority, on motion to “determine any dispute relating to the scope of an examination”.[^20] The Associate Judge further identified, in my view correctly, the principles set out by the Court of Appeal in Bellamy v. Johnson (1992), 1992 CanLII 7491 (ON CA), 90 D.L.R. (4th) 564 (Ont. C.A.), at p. 567, that “the plaintiff has no right to determine how the examination is to be conducted” and “the court has jurisdiction to set terms and conditions relating to the examination”.[^21]
(d) Order for Independent Medical Examination by Dr. Marks
[59] In ordering that the Plaintiff undergo an independent medical examination by Dr. Marks, an orthopaedic specialist, the Associate Judge noted, correctly, that the Plaintiff pleaded that she has sustained “permanent and serious impairments of important physical, mental and psychological functions arising directly from said collision” (emphasis added).[^22] The Appellant contended that the Associate Judge erred in the exercise of his discretion in ordering an independent medical examination by an orthopaedic specialist because he failed to consider the applicable test and misapprehended the evidence. I accept this submission, for reasons I will now explain.
[60] In seeking an order for the examination of the Plaintiff by an orthopaedic specialist, the Defendants were required to provide evidence that addresses why this examination was needed: Van Dijk-Alac, at para. 13, applying Nelson v. Thiruchelvam, 2005 CanLII 4849 (ON SC), [2005] O.J. No. 743 (S.C.), at para. 22:
The evidence on these motions is critical, and the results will vary from case to case depending on the nature and quality of the evidence filed…. At the very least, the evidence must explain why the particular examination is required. This means setting out the nature of the specialty of the proposed physician; indicating the type of evidence they can provide and explaining why it is necessary in the context of the injuries and symptoms complained of and the evidence already tendered by the plaintiff. In other words, what evidence will the plaintiff be calling at trial that must be addressed by this particular defence expert? [Citations omitted.]
[61] Here, the Plaintiff has not served an expert report by an orthopaedic specialist. The evidentiary record on the motion included an affidavit of Melinda Baxter, lawyer for the Defendants, sworn October 31, 2020, who deposed that the request for an independent medical examination by an orthopedic surgeon was based on the statement of claim and on a reference in the medical reports served by the Plaintiff that she complained of “neck pain, left shoulder pain, pelvic pain and lower back pain”. Ms. Baxter conceded in cross-examination that: (i) the Plaintiff has stated, through her counsel, that she did not suffer orthopedic injuries; (ii) none of the Plaintiff’s treating physicians are orthopedic surgeons; (iii) the Plaintiff is not being treated for orthopedic injuries; (iv) the Plaintiff has not delivered any expert report by an orthopedic surgeon; and (v) Ms. Baxter was not aware whether Dr. Marks is an expert in chronic pain or in non-orthopedic pain.
[62] The Defendants did not tender any evidence of Dr. Marks’ qualifications or areas of specialty. The Defendants did not lead into evidence Dr. Mark’s curriculum vitae, provide any evidence of the orthopaedic assessment that he was retained to provide, or the medical injuries, treatment or diagnosis that he was retained to opine upon. Apart from pointing to para. 11 of the statement of claim, the Defendants did not lead sufficient evidence that would allow for a determination of whether the Plaintiff has placed into issue a physical condition of an orthopedic nature.
[63] A court will intervene on an appeal from an order of a judge or master that is made in the exercise of discretion “only if the exercise of the judge’s discretion was based on a wrong principle, a failure to consider a relevant principle, or a misapprehension of the evidence”: Ettinger v. Trillium Railway Co. Ltd., 2019 ONSC 7321, 99 B.L.R. (5th) 231 (Div. Ct.), at para. 38, citing Aldo Group Inc. v. Moneris Solutions Corporation, 2013 ONCA 725, 118 O.R. (3d) 81, at para. 30; Prescott, at para. 11.
[64] I conclude that the Associate Judge did not apply the relevant legal principles pertaining to the requested independent medical examination by Dr. Marks, an orthopedic surgeon. The issue of whether to order the requested examination could not be determined by reference only to para. 11 of the statement of claim and could not be granted only on a finding that the independent medical examination was reasonable and “seemingly likely relevant”.[^23] The Defendants were required to establish, on an evidentiary record, that the orthopaedic examination was needed to respond to a claim advanced in this action. Further, the Associate Judge did not take into consideration the absence of evidence of Dr. Marks’ qualifications, and did not consider evidence that was tendered on the motion that showed that the Plaintiff was not suffering from, relying upon or advancing a claim based on injuries of an orthopedic nature.
[65] I thereby set aside the Associate Judge’s order that the Plaintiff attend at an independent medical examination by Dr. Marks.
[66] Section 134 of the Courts of Justice Act empowers this Court, on appeal, to:
(a) make any order or decision that ought to or could have been made by the court or tribunal appealed from;
(b) order a new trial;
(c) make any other order or decision that is considered just.
[67] Considering my determination that the evidentiary record was insufficient to support a claim for an order for an independent medical examination by an orthopaedic surgeon, even on application of the correct test, I will not hear this motion on this record or order that it be returned for rehearing. Instead, I dismiss this motion without prejudice to the Defendants bringing forward a motion for an independent medical examination by an orthopaedic surgeon on better evidence.
(e) Order for Independent Medical Examination by Ms. Chladry
[68] The Appellant submitted that the Associate Judge erred in ordering that the Plaintiff attend at an independent medical examination by a non-medical expert, specifically, a vocational assessor, on two grounds: first, the Associate Judge did not consider whether the non-medical expert’s opinion was required as a diagnostic tool for the examining health practitioner; and, second, that the Associate Judge exceeded his jurisdiction in ordering an examination by a non-health practitioner. The Respondents submitted that the examination by the non-health practitioner was required to address the claim advanced by the Plaintiff that she is fully disabled from working as a lawyer and submitted that the Associate Judge had the authority to order an independent medical examination by a non-health practitioner.
[69] Section 105 of the Courts of Justice Act limits the court’s jurisdiction to order examinations to “health practitioners”. Health practitioner is a defined term in the Courts of Justice Act, and does not include vocational assessors, but rather refers to persons licensed to practice medicine or dentistry, or registered as psychologists.
[70] The Associate Judge did not explain which authority, principle or basis he was relying on in ordering the examination by a non-health practitioner vocational assessor. The Associate Judge’s reasons do not differentiate between a health practitioner and a non-health practitioner. The Associate Judge based his decision on the Plaintiff’s claim for income loss and on his finding that it was reasonable for the Defendants to be granted this examination.[^24] The principles pertinent to the ordering of the examination by a non-health-practitioner are not established solely on the basis of reasonableness.
[71] In Ziebenhaus v. Bahlieda, 2014 ONSC 138, 119 O.R. (3d) 275 (Div. Ct.)(“Ziebenhaus (Div. Ct.)”), aff’d 2015 ONCA 471, 126 O.R. (3d) 541 (“Ziebenhaus (ONCA)”), the Divisional Court stated that there was conflicting lower court case law on the issue of the court’s jurisdiction to order an independent medical examination by a non-health practitioner. The Court of Appeal stated, at para. 8, that one line of cases allows courts only to order an examination by a non-health practitioner if needed as a diagnostic aid, as set out in Bonello, at para. 16(iv), and another line of cases found that a court’s exercise of inherent jurisdiction provides authority to order an independent medical examination by a non-health practitioner where necessary to ensure justice between the parties, as in Vanderidder v. Aviva Canada Inc., 2010 ONSC 6222, at paras. 34-35.
[72] If the Associate Judge’s decision to order the independent medical examination by a non-health practitioner was based on the principles set out in Bonello, the Defendants had the burden of demonstrating that “the proposed examination is necessary as a diagnostic aid to the health practitioner who is conducting the defence medical examination”: Bonello, at para. 16(iv); Featherstone v. Essex (County), 2009 CanLII 37723 (Ont. S.C.). The Defendants did not tender any evidence that the proposed examination by the vocational assessor was necessary as a diagnostic aid. As a result, the requirement set out in Bonello was not capable of being satisfied, and the motion would be dismissed on this basis.
[73] I considered whether the Associate Judge’s decision to order the independent medical examination by a non-health practitioner was based on the principles stated in Ziebenhaus. In Ziebenhaus (ONCA), the Court of Appeal upheld the Divisional Court’s determination that a motion judge had the inherent jurisdiction to order that a party undergo an examination by a person who is not a “health practitioner” as defined in s. 105 of the Courts of Justice Act. In that instance, the appellate court thereby upheld the motion judge’s order that the plaintiff attend an assessment by a vocational evaluator.
[74] The Divisional Court held that judges of this Court have inherent jurisdiction to order that a party to an action undergo a physical or a mental examination by a person who is not a “health practitioner” for the purposes of s. 105 of the Courts of Justice Act where the judge is satisfied, on the evidence, that it is “necessary to do justice between the parties” because trial fairness and justice require such a result: Ziebenhaus (Div. Ct.), at paras. 63, 69-72. In my view, this exercise of inherent jurisdiction is not constrained by the requirement that the independent medical examination by the non-health practitioner be a diagnostic tool to an examination by a health practitioner. Rather, the moving party must establish that it cannot meet the plaintiff’s case without such an examination, as set out in Ziebenhaus (Div. Ct.), at para. 72:
[A] court can only have recourse to its inherent jurisdiction sparingly, and on a basis that does not conflict with s. 105 or Rule 33 of the Rules of Civil Procedure. This is reflected in the principle that a court can only exercise its inherent jurisdiction to the extent it is "necessary to do justice between the parties". This has been discussed above, in part, where it has been concluded that the court's inherent jurisdiction can only be exercised where it is necessary to permit a defendant to respond to the plaintiff's case. [Citations omitted.]
[75] Further, the Divisional Court stated that an examination by a non-health-practitioner cannot be granted “automatically” on the “matching principle”: Ziebenhaus (Div. Ct.), at para. 71.
[76] If the Associate Judge’s exercise of discretion to order an independent medical examination by a non-health practitioner was based on the Court’s inherent jurisdiction as explained in Zeibenhaus then, in my view, the Associate Judge committed two reversible errors. First, the Court held in Ziebenhaus (Div. Ct.) that the Court’s authority to order an independent medical examination by a non-health practitioner was based on a Judge’s inherent jurisdiction. An Associate Judge does not have inherent jurisdiction but rather must find their authority in a statute: Ontario (Attorney General) v. Victoria Medical Building Ltd., 1959 CanLII 20 (SCC), [1960] S.C.R. 32, at p. 43: “There is no inherent jurisdiction in the office as there is in the office of a Superior Court Judge”. See also Courts of Justice Act, s. 86.1(6); Unwin v. Crothers (2005), 2005 CanLII 23337 (ON SC), 76 O.R. (3d) 453 (S.C.), at paras. 53-54; R&V Construction Management Inc. v. Baradaran, 2020 ONSC 3111 (Div. Ct.), at para. 23: “As the masters understand, they are creatures of statute, not courts of inherent jurisdiction, and their jurisdiction arises from the instruments that give them jurisdiction.” Accordingly, if the Defendants’ motion for an independent medical examination by a non-health practitioner is based on the exercise of the Court’s inherent jurisdiction, the motion must, in my view, be brought to a Judge.
[77] Second, even if the Associate Judge had jurisdiction, the Associate Judge erred in misapprehension of the evidence, or lack of evidence in support of the motion for an independent medical examination by a non-health practitioner.
[78] The motion record does not contain any evidence of the qualifications of Ms. Chladry. Not only is there is no curriculum vitae or even a statement of experience or credentials, there is no evidence of why the independent medical examination is needed. A word search of the evidentiary record on CaseLines was necessary to locate the one instance where this vocational examiner’s first name was identified.[^25] The vocational assessor’s surname was spelled in four different ways in the motion record and appeal record, and differently in the December 2020 Reasons than in the resultant Order, giving rise to uncertainty even as to the vocational assessor’s identity.[^26] There is insufficient evidence of the nature and scope of the examination proposed to be conducted, the evidence proposed to be analysed or why this examination is necessary to permit the Defendants to respond to the Plaintiff’s case. The Defendants did not tender evidence that was sufficient for determination of entitlement to an independent examination by a non-health practitioner.
[79] On these findings, I conclude that the Associate Judge did not apply the relevant legal principles pertaining to the requested independent medical examination by the non-health-practitioner, Ms. Chladry, and did not consider and weigh the evidentiary record that was required for determination on these principles. Accordingly, the Associate Judge’s exercise of his discretion in ordering this examination was made in error. I thereby set aside the Associate Judge’s order that the Plaintiff attend at an independent medical examination by Ms. Chladry.
[80] I considered whether to determine the Defendants’ motion for an independent medical examination by a non-health practitioner vocational assessor, on the power conferred by s. 134(1)(c) of the Courts of Justice Act: “make any other order or decision that is considered just”. In view of my finding that the evidentiary record was insufficient to support the claim for an order for an independent medical examination by a vocational assessor, I will not hear this motion on this record or order that it be returned for rehearing. Instead, I dismiss this motion without prejudice to the Defendants bringing forward a motion for an independent medical examination by a non-health practitioner vocational assessor on better evidence.
D. Did the Associate Judge err in ordering that that the Plaintiff not communicate with the Defendants’ previous or currently engaged independent expert/ assessors?
[81] The Appellant appeals the Associate Judge’s order that the Plaintiff’s counsel not communicate with the Defendants’ independent medical examiners (the “Restriction on Communication Order”), reproduced here for convenience:
Counsel for the plaintiff shall not communicate with the Defendants’ previous or currently engaged independent experts/ assessors.[^27]
[82] The Appellant submitted that the Restriction on Communication Order constitutes an interlocutory injunction, and that the Associate Judge exceeded his jurisdiction because s. 101(1) of the Courts of Justice Act only provides jurisdiction for the issuance of injunctive relief to a judge. This is also seen in Rule 40.01, which provides that an interlocutory or mandatory order under s. 101 or 102 of the Courts of Justice Act “may be obtained on motion to a judge by a party to a pending or intended proceeding.” See also American Axle & Manufacturing Inc. v. Durable Release Coaters Ltd. (2007), 2007 CanLII 20094 (ON SC), 86 O.R. (3d) 53 (S.C.), at paras. 32-33; Treaty Group Inc. v. Simpson (1999), 1999 CanLII 14770 (ON SC), 43 O.R. (3d) 220 (Gen. Div.). The Appellant contended, further, that the Associate Judge did not apply the three-part test set out in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, for the granting of injunctive relief.
[83] The Respondents did not contest that an Associate Judge does not have authority to grant injunctive relief. The Respondents submitted, instead, that the Associate Judge did not issue injunctive relief, but rather established a condition for the conduct of the independent medical examination, in accordance with Rule 33.03. The Respondents stated that their motion did not seek injunctive relief, but rather sought, as a condition of the independent medical examinations, that the Plaintiff’s counsel be directed not to interfere in the independent medical examination as the Plaintiff’s counsel had done previously, causing a previous medical examiner to withdraw.
[84] The Associate Judge based his Restriction on Communication Order on the principle stated in Bellamy, and in Valente v. City of Toronto, 2018 ONSC 4991, at paras. 3 and 15, that Rule 33 and s. 105 of the Courts of Justice Act “operate as a complete code and procedure for the conduct of court ordered independent medical examinations.”[^28] The Associate Judge noted, as well, that Rule 33.03 authorizes the Associate Judge to determine, on motion, “any dispute relating to the scope of an examination”.
[85] I find that the Associate Judge identified the correct legal principles applicable to his consideration of conditions for any court-ordered independent medical examination. I found earlier that the Associate Judge had ample evidence on which to find that the Plaintiff’s counsel had improperly communicated with the Defendants’ first independent medical examiner, Dr. Comper, and that this communication resulted in this medical examiner’s decision to withdraw. The Plaintiff’s counsel initiated similar communication with Dr. Wiseman, in a letter dated July 22, 2020. The Associate Judge had ample evidence on which to conclude that the Defendants’ ability to obtain independent medical evidence was impaired by communications by the Plaintiff’s counsel with the proposed assessor.
[86] I conclude that the Associate Judge had authority under Rule 33.03 to limit contact by the Plaintiff’s counsel with the court appointed medical examiner as part of any court-ordered independent medical examination, and had an evidentiary basis on which to impose such a condition based on the prior conduct of the Plaintiff’s counsel. I will not interfere with the Associate Judge’s decision that a restriction on communication by the Plaintiff’s counsel with the independent medical examiner was a necessary condition for the examination to be conducted.
[87] However, I find that the Order made by the Associate Judge went beyond the scope of the court-ordered examination because it had the effect of remaining in place even after the court-appointed examiner delivers their report, and indeed indefinitely. In this regard, the Restriction on Communication Order exceeds the relief claimed in the Notice of Motion[^29] and, in my view, goes beyond the purpose for which the Associate Judge rendered the Order: specifically, to restrict the Plaintiff’s counsel from attempting to impose terms on the independent medical examiners[^30] and from implying “threats of professional misconduct complaints to the medical professionals whom the other side has involved” in a way that had already caused a previous medical examiner to withdraw.[^31]
[88] I find that the Associate Judge’s decision to issue an Order to restrict Plaintiff’s counsel from further contact with the Defendant’s independent medical examiner was made without error, but I will, on the basis of the powers set out in s. 134(1)(a) and (c) of the Courts of Justice Act, vary the Order to comply more precisely with the Associate Judge’s findings and decision and with the purposes of Rule 33.03.
[89] On my finding that s. 105 of the Courts of Justice Act, Rule 33.03 and applicable case authorities, and the evidentiary record support the Associate Judge’s decision to issue an Order to restrict contact by the Plaintiff’s counsel with the court appointed medical examiner, and that the Order so issued must comply with Rule 33.03, I vary the Associate Judge’s Order to the following: The Plaintiff’s counsel shall not communicate with the Defendants’ independent medical examiner, Dr. Karen Wiseman, until she has completed the report, and any supplementary report, arising from her independent medical examination.
IV. DISPOSITION
[90] On the basis of these Reasons, I order as follows:
(a) In regard to the Appeal brought by the Plaintiff/ Appellant:
(i) The Appeal of the Associate Judge’s Order that the Plaintiff attend at an independent medical examination by Dr. Karen Wiseman is dismissed.
(ii) The Appeal of the Associate Judge’s Order that the Plaintiff attend at an independent medical examination by Dr. Paul Marks is granted, the order is set aside, and the motion for this relief is dismissed without prejudice to the Defendants bringing forward a motion for an independent medical examination by an orthopaedic surgeon on better evidence.
(iii) The Appeal of the Associate Judge’s Order that the Plaintiff attend at an independent medical examination by Ms. Jennifer Chladry is granted, the order is set aside, and the motion for this relief is dismissed without prejudice to the Defendants bringing forward a motion for an independent medical examination by a vocational assessor on better evidence.
(iv) The Appeal of the Associate Judge’s Order that the counsel for the Plaintiff shall not communicate with the Defendants’ independent experts/assessors is dismissed, but the Order shall be varied to the following: The counsel for the Plaintiff shall not communicate with the Defendants’ independent medical examiner, Dr. Karen Wiseman, until she has completed the report, and any supplementary report, arising from her independent medical examination.
(v) The Appeal of the Associate Judge’s Order that the Plaintiff re-attend at her examination for discovery to answer questions properly arising from answers to undertakings, and questions ordered or agreed to be answered, is dismissed.
(b) The Cross-Appeal, brought by the Defendants/ Respondents/ Appellants in Cross-Appeal, for an Order setting aside the Associate Judge’s denial of their proposed amendment to paragraph 8 of the Statement of Defence, is dismissed.
V. COSTS
[91] I encourage the parties to discuss and agree on the issue of costs. If the parties are not able to agree on the issue of costs, the parties may, by December 10, 2021, request a case conference, by email to my judicial assistant, for the purpose of implementing a timetable for the delivery of written submissions on costs. If no party seeks the scheduling of a case conference by December 10, 2021, I will deem the issue of costs to have been settled
A.A. Sanfilippo J.
Date: November 16, 2021
COURT FILE NO.: CV-17-571857
DATE: 20211116
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KENDRA LOUISE D’EON
Plaintiff
(Appellant/Respondent in the Cross-Appeal)
– and –
ZAHRA HOSSEINI, TOYOTA CREDIT CANADA INC. and TD INSURANCE, operating as Security National Insurance Company
Defendants
(Respondents/Appellants in the Cross-Appeal)
REASONS FOR DECISION
A.A. Sanfilippo J.
Date: November 16, 2021
[^1]: At the time of the hearings, and at the time of the Associate Judge’s release of his decisions, Associate Judges were known as “Case Management Masters”. I will refer to the Associate Judge according to his current title, notwithstanding the different title in place at the time of the Orders under appeal. [^2]: D’Eon v. Hosseini, 2020 ONSC 7500, referred to as the “December 2020 Reasons”. [^3]: Unreported, referred to as the “January 2021 Reasons”. [^4]: December 2020 Reasons, at para. 1. [^5]: Statement of Claim, para. 10. [^6]: Statement of Claim, para. 11. [^7]: As I will explain in footnote 26, at para. 78 of these Reasons, the vocational assessors’ surname was spelled four different ways in the motions and appeal. I will refer to the vocational assessor as “Ms. Chladry” as this is the how the vocational assessor is identified in the Associate Judge’s Order of December 4, 2020. [^8]: December 2020 Reasons, at para. 14. [^9]: December 2020 Reasons, at paras. 8-9. [^10]: December 2020 Reasons, at para. 16. [^11]: December 2020 Reasons, at paras. 16 and 17. [^12]: December 2020 Reasons, at para. 18. [^13]: Amended Statement of Defence, para. 10: “The Defendants deny that the Plaintiff has suffered any injuries, losses or damages whatsoever as a result of this accident, but state that, in any event, the injuries, losses and damages claimed are excessive, exaggerated and too remote to be recoverable in law”. [^14]: January 2021 Reasons for Decision. [^15]: Affidavit of Melissa Baxter sworn October 19, 2020, exhibit G. [^16]: December 2020 Reasons, at paras. 41-44. [^17]: December 2020 Reasons, at paras. 45-46. [^18]: December 2020 Reasons, at paras. 60-62. [^19]: Statement of Claim, para. 10. [^20]: December 2020 Reasons, para. 50. [^21]: December 2020 Reasons, para. 52. [^22]: Statement of Claim, para. 11. [^23]: December 2020 Reasons, at para. 60. [^24]: December 2020 Reasons, at para. 62: “As pertains to the vocational assessor, this too is reasonable, given the claim of the plaintiff that she is fully disabled from working as a lawyer for the long-term, and thus entitled to over four million dollars in damages. What work, as a lawyer or otherwise, can she do, if any at all? This is a reasonable question for the defendants to pose in the circumstances of this case, and an issue which they are entitled to investigate.” [^25]: Affidavit of Melissa Baxter, sworn October 19, 2020, para. 39. [^26]: Notice of Motion, dated October 7, 2020, para. 7; Notice of Motion, dated October 7, 2020, para. 27; December 2020 Reasons, para. 37; Order of December 4, 2020, para. 6; Supplementary Notice of Appeal, paras. 3 and 4. [^27]: Order of December 4, 2020, para. 7. [^28]: December 2020 Reasons, at paras. 52-56. [^29]: Notice of Motion, para. 7: “An Order that the Plaintiff attend independent examinations/ assessments with Ms. Chlandry, Dr. Wiseman and Dr. Marks, and as a condition of these assessments that the Plaintiff through her counsel cease writing to the Defendants’ experts or proposed experts”. [^30]: December 2020 Reasons, at paras. 45, 54 and 59. [^31]: December 2020 Reasons, at paras. 45, 46 and 52.