COURT FILE NO.: CV-14-498577
DATE: 20211119
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Anna Mierzejewski
Plaintiff/Appellant
– and –
Mark Brook and 1435664 Ontario Business Corporation, carrying on business under the name of Nationwide Freight Systems Ltd.
Defendants/Respondents
Michael Rotondo, for the Plaintiff/Appellant
Nazli Buhary, for the Defendants/Respondents
HEARD: October 28, 2021
STEWART J.
Nature of the Appeal
[1] The plaintiff appeals from the decision of Associate Judge Jolley dated March 25, 2021 which ordered her to attend for defence medical examinations as specified therein.
[2] The defendants take the position that Associate Judge Jolley made no error in granting the order that would warrant interference on this appeal.
[3] At the time the order under appeal was made, this action was on the list for trial in June, 2021. As a result of the pandemic restrictions, the trial has now been adjourned to October, 2022.
Decision Under Appeal
[4] In her action, the plaintiff asserts claims that she has suffered physical and psychological injuries as a result of a motor vehicle accident which is the subject matter of the litigation.
[5] At a pre-trial before Justice Stinson on February 22, 2021, a motion to compel the plaintiff’s attendance for defence medical examinations was discussed. Justice Stinson ordered that the defendants’ expert reports be served by May 15, 2021, thereby contemplating that such reports would be forthcoming following these examinations.
[6] Purportedly due to concern for risk posed to her by the pandemic, the plaintiff has refused to attend scheduled defence medical assessments with Dr. Muhlstock, a physiatrist, and with Dr. Dowhaniuk, a neuropsychologist. In particular, the plaintiff has refused to attend at any assessment that requires her personal attendance, irrespective of location. Further, the plaintiff has flatly refused to attend any neuropsychological assessment at all.
[7] The plaintiff has maintained her refusal to attend these defence medical examinations despite having been provided with a copy of the extensive Covid-19 safety protocols of the assessment facility that would be observed strictly during her attendances.
[8] The plaintiff has maintained this basis for refusal despite the fact that she has attended all other necessary appointments related to this litigation, including an in-person assessment by an occupational therapist arranged by her counsel in September 2020 and a meeting at her counsel’s office to participate in the pre-trial on February 22, 2021. She has also attended at least once at a large public hospital to undergo mammography screening.
[9] Although the plaintiff declares that she is at higher risk for complications should she contract Covid-19, her counsel has indicated that she has declined to be vaccinated against the disease despite the widespread availability of such vaccinations.
[10] As a result of the plaintiff’s refusal to attend for these examinations arranged by defence counsel, the defendants were required to bring a motion for an order that the plaintiff shall undergo in-person physiatry and neuropsychology defence medical examinations (then scheduled for March 31 and April 5, 2021).
[11] The motion was heard by Associate Judge Jolley on March 22, 2021, and her decision was released on March 25, 2021. Associate Judge Jolley granted the defendants’ motion and ordered that the plaintiff attend both in-person defence medical examinations as requested.
[12] Associate Judge Jolley concluded that an in-person examination of the plaintiff by a physiatrist was necessary, based on the following findings (at paras. 6-9 of her decision):
[6] Dr. Muhlstock has indicated "A Physiatry assessment CANNOT be done virtually. The physical examination is critical to the assessment."
[7] While the plaintiff is concerned about attending in person, the evidence is that AssessMed has extensive COV1D-19 protocols in place, which are compliant with both the Ministry of Health guidelines and the guidelines of the College of Physicians and Surgeons of Ontario. They include COV1D-19 screening and temperature check prior to the examination, a socially distanced waiting room, plexiglass barrier during the interview, use of PPE including a mask, gloves and shoe covers by the client and gloves, boot covers, mask and an N95 mask and full-face shield by the assessor.
[8] The plaintiff has attended necessary appointments, although understandably a limited number during the pandemic. She attended in person in February 2021 for a mammogram as part of her cancer follow up. She attended her lawyer's office for the pre-trial, albeit in a separate room in the firm and with all applicable COV1D-19 guidelines being followed.
[9] It is admitted that the plaintiff has put in issue her musculoskeletal injuries and chronic pain and that an examination by a physiatrist is relevant to those claimed injuries. Given the pending trial date, this is not a case where the parties can wait some months for the pandemic to ameliorate before this examination can take place. The defendants must file their reports by 15 May 2021 and the trial is set to commence in June 2021. As noted, the plaintiff states that she limits in-person visits with her primary health practitioners unless an in-person attendance is necessary. The evidence before me is that it is necessary to have this examination in person.
[13] Based on the evidentiary record before her, the Associate Judge was satisfied that AssessMed had the appropriate COVID protocols in place and rejected the plaintiff’s unfounded speculation that AssessMed’s offices were unsafe.
[14] Associate Judge Jolley also relied on the admitted fact and evidence that the plaintiff has attended in-person appointments outside her home, during the pandemic, albeit on a limited basis, and rejected the proposition that the plaintiff should be exempted from attending in-person defence medical assessments during the pandemic due to her previous health history.
[15] Jolley also made findings of fact regarding the proposed in-person neuropsychological defence medical examination, including the following (at paras. 20-23 of her reasons):
[20] Once a plaintiff has put her cognitive state in issue, as I find has been done in the case through her pleading and the reports she has tendered referencing Query Head Injury and Post-Concussive Syndrome, the defendants should not be bound by the opinion of Dr. Marciniak, who is not a neuropsychologist, that an assessment would not provide relevant information about the cause of the plaintiff's various cognitive conditions. Even he states in his supplementary report that, while he did not make any specific finding concerning the plaintiff's injury, "the symptoms of a traumatic head injury are certainly present". A neuropsychology examination will allow the defendants to evaluate the potential cause of the injuries the plaintiff alleges she suffers, as detailed above and in paragraph 9 of the claim.
[21] I am satisfied that the proposed neuropsychology examination is relevant to the conditions that the plaintiff has placed in issue in this action (Suchan v. Casella, 2006 CanLII 20844 (ON SC)) and that the assessment is likely to produce relevant information.
[22] Considering the factors set out in George v. Landles, 2021 ONSC 6105 at paragraph 19, I am satisfied that such an examination is necessary. It would be unfair to require the defendants to proceed to trial without the ability to explore the injuries that the plaintiff has put in issue. If leave is required, I grant it, noting that these examinations were contemplated by Justice Stinson who presided at the pre-trial.
[23] Like Dr. Muhlstock, Dr. Dowhaniuk has advised that: "I cannot conduct a neuropsych assessment virtually. Administration of cognitive testing must be done face to face using the required stimulus materials." For the reasons noted above in relation to the physiatry examination, I am satisfied that the neuropsychology examination must also be conducted in person.
[16] Accordingly, the plaintiff was ordered to attend for both defence medical examinations.
Standard of Review
[17] It is common ground that the standard of review for errors of law is correctness (see: Zeitoun v. Economical Insurance Group, 2008 CanLII 20996 (ON SCDC)).
[18] The standard of review for errors of fact is “palpable and overriding error”, which is a particularly high standard. (see: Zeitoun v. Economical Group, supra.)
[19] On questions of fact and mixed fact and law, the same high level of deference applies, and the role of the reviewing court is limited. The appellate court cannot substitute its interpretation of the facts or re-weigh the evidence simply because it takes a different view of the evidence from that of the court below (see: Wellwood v Ontario Provincial Police et al, 2010 ONCA 386).
Discussion
[20] In my opinion, the pertinent conclusions arrived at by Associate Judge Jolley which support her decision to grant the order requested all involve findings of fact, or findings of mixed fact and law. These findings are amply supported by the evidentiary record on the motion. As such, they are deserving of deference and I see no basis upon which they ought to be reversed.
[21] Even if these conclusions are considered to be ones of pure law, I see no palpable or overriding error made by the Associate Judge that would warrant interference. Indeed, I consider these determinations to be correct, and agree with them without reservation.
Conclusion
[22] For these reasons, the appeal is dismissed.
[23] If the parties cannot agree on dates for attendance on the defence medical examinations and for delivery of expert reports relating thereto, I would ask counsel to address that issue in brief written submissions directed to my attention.
Costs
[24] If the parties are unable to agree on a disposition as to costs, I would invite counsel for the defendants to submit brief written submissions on that subject within 20 days of the date of this decision, and counsel for the plaintiff to do the same 10 days after receipt of the defendants’ submissions.
Released: November 19, 2021
COURT FILE NO.: CV-14-498577
DATE: 20211119
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Anna Mierzejewski
Plaintiff/Appellant
– and –
Mark Brook and 1435664 Ontario Business Corporation, carrying on business under the name of Nationwide Freight Systems Ltd.
Defendants/Respondents
REASONS FOR DECISION
Stewart J.
Released: November 19, 2021