Court File and Parties

Court File No.: CV-17-571857 Date: 2022-07-27 Superior Court of Justice - Ontario

Re: Kendra Louise D’Eon, Plaintiff And: Zahra Hosseini, Toyota Credit Canada Inc. and TD insurance operating as Security National Insurance Company, Defendants

Before: D. Wilson J.

Counsel: Adam Kuciej, for the Plaintiff David Zarek, for the Defendants, Zahra Hosseini and Toyota Credit Canada Inc

Heard via Videoconference: May 25, 2022

Endorsement

[1] The Plaintiff brings this claim for damages for personal injuries which she attributes to a motor vehicle accident that occurred on September 15, 2016. This action is to be tried with a jury, commencing in June 2023, with a pretrial set for March 3, 2023.

[2] The Defendants wish the Plaintiff to be assessed by a number of specialists: Dr. Rosebush, psychiatrist; Sean Fitzgerald, vocational expert; Dr. Cheng, physiatrist; and Dr. Yufe, neurologist. Counsel for the Defendants had originally retained the neurologist Dr. Angel to do an assessment but subsequently, he refused to do it, so Dr. Yufe was retained. Counsel has secured tentative appointments for these assessments in September, during the same week, in order that the Plaintiff can travel from Winnipeg once to compete the examinations with a minimum of inconvenience and to reduce costs. The solicitor for the Plaintiff objects to the assessments proposed.

[3] At counsel’s request, I convened a case conference in March 2022 to deal with the issue of various examinations the Defendants wished the Plaintiff to attend and to set a timetable for the delivery of expert reports. I issued my endorsement and was hopeful that the matter could be resolved between counsel. Unfortunately, that did not occur and as a result, I fixed a date for the hearing of the motion, along with a timetable for the delivery of materials. The motion was argued before me, and I took the decision under reserve.

Background to the Case

[4] The history of this action is relevant to the issues on the motion. The Plaintiff Kendra D’Eon (“Ms. D’Eon”) is a lawyer who was practicing insurance litigation in Toronto at the time of the accident in 2016. Ms. D’Eon ceased working at the insurance company where she practiced at the time of the accident; she was off work for a period of time and tried to return to work but was unable to as a result of her injuries from the accident. She commenced working at another firm. She subsequently left that firm and is now attempting to work part-time as a lawyer at her own firm. The Plaintiff currently resides in Winnipeg. In this action, the Plaintiff claims a variety of damages, with a quantum in excess of $4 million.

[5] This claim was issued in 2017 and proceeded through the usual steps in a personal injury file: Documentary productions, examinations for discovery, and mandatory mediation. In the Statement of Claim, the Plaintiff pleads both physical and psychological/mental injuries as a result of the accident. It is pleaded that she suffered a concussion and that she has undertaken extensive treatment and will continue to do so into the future. Claims are being advanced for general damages, loss of income both past and future, future care costs both past and future and for housekeeping and home maintenance that Ms. D’Eon alleges she cannot do as a result of her injuries.

[6] In November 2020, the Defendants brought a motion for a variety of relief and the Plaintiff responded with a cross-motion. What is relevant for my purposes is that the Defendants sought to compel the Plaintiff to attend at various independent medicals: An orthopedic assessment, a neuropsychological assessment, and a vocational evaluation. The motion was argued before Associate Judge Josefo who made an order, inter alia, that the Plaintiff attend the three assessments.

[7] The Plaintiff appealed the order of Josefo A.J. and in his reasons dated November 16, 2021, Sanfilippo J. confirmed the order for an assessment with a neuropsychologist but set aside the order requiring an examination by an orthopedic surgeon, noting there was no evidence in the record that such an examination was necessary. The Plaintiff had not delivered an expert report from an orthopedic surgeon.

[8] Justice Sanfilippo also set aside the order that the Plaintiff be assessed by a vocational expert, a non-health care practitioner, because the record did not contain evidence that such an examination was necessary as a diagnostic aid, nor was there evidence of the qualifications of the proposed assessor. Justice Sanfilippo dismissed the request for the vocational assessment “without prejudice to the Defendants bringing forward a motion for an independent medical examination by a non-health practitioner vocational assessor on better evidence.”

[9] Subsequent to the case conference before me, counsel had some discussions. Pursuant to the order of Sanfilippo J., the Plaintiff agreed to attend a neuropsychological assessment with Dr. Dowhaniuk and that assessment is scheduled for December 15, 2022. However, the solicitor for the Plaintiff did not agree to have her examined by a neurologist, a psychiatrist, a physiatrist, or a vocational specialist.

Positions of the Parties

Plaintiff

[10] The Plaintiff submits that in accordance with the Court Order, the Plaintiff will be examined by a neuropsychologist. Ms. D’Eon was only seen by a psychiatrist on one occasion and a report from that attendance has been served. The Plaintiff does not have a psychiatric disorder, she has pain arising from her injuries in the accident. Counsel submits that there is overlapping between an examination by a physiatrist and one by a neurologist and it is not necessary that the Plaintiff be assessed by both. Finally, an assessment by a vocational specialist is likely unnecessary but certainly premature; it should only be undertaken if a specialist recommends it as a diagnostic aid. Counsel argues that if the assessments proceed in September, issues may be contained in the reports that will have to be commented on by the Plaintiff’s experts and that may not be possible in advance of the March pretrial. It is the position of the Plaintiff that these assessments are not necessary “in the interests of trial fairness and justice.”

Defendants

[11] Mr. Zarek submits that the issue of the Plaintiff’s psychiatric condition is very much at issue in this lawsuit. He notes that Ms. D’Eon was on medication before the accident for anxiety issues and she undertook treatment for this. She has continued to take prescription medication following the accident. She is alleging she suffered a traumatic brain injury in the accident with resultant cognitive issues and headaches; she alleges she has visual disturbance due to the accident. Mr. Zarek submits that the Plaintiff’s medical records indicate she suffered a number of concussions prior to 2016. It is necessary for a neurologist to opine on these issues. She has complaints of chronic pain, so it is appropriate for an assessment by a physiatrist. She is claiming damages of $4,350,000 million as a result of injuries she attributes to the accident; she alleges her ability to work as a lawyer has been adversely impacted by her injuries from the accident, so fairness requires the Defendants have the opportunity to have an assessment by a vocational specialist. In addition, she has been examined by a myriad of specialists, including an occupational therapist, a neurologist, a physiatrist, a psychologist, a neurosurgeon, a psychiatrist, a neuropsychologist, and a vocational expert. Because the Plaintiff advances a complicated case, it is necessary for the defence to have a number of experts assess her on the issue of causation and damages to have a fair trial.

The Law

[12] Rule 33 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides for the examination of an adverse party with respect to physical or mental condition that is in issue in the lawsuit. This rule is to be read in conjunction with section 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43, which states that the Court may on motion order a party to undergo a physical or mental examination by one of more health practitioners. The law is clear: A Defendant is not restricted to one independent medical examination. Justice David Brown, as he then was, set out the various factors to be considered by the Court when a request is made for further examinations: Bonello v. Taylor.[^1]

[13] It is settled law that a Superior Court judge has inherent jurisdiction to order a variety of assessments to ensure justice and fairness: Ziebenhaus v. Bahlieda.[^2] It is not necessary for a health care practitioner to provide evidence to the Court that an examination by a non-health care practitioner is necessary before such an assessment will be ordered. Finally, assessments to which a party is entitled are not restricted to those performed by medical practitioners; examinations may be conducted by an occupational therapist, a vocational expert, or a valuator, to name but a few examples.

[14] In the instant case, counsel for the Plaintiff does not object on the basis that the proposed examiners are not properly qualified to perform the examinations. For the purposes of the motion, there is no issue that the assessors proposed are qualified in their own areas of expertise. Of course, the issue of whether these experts, or any other experts, ought to be qualified at the trial to provide opinion evidence is one left to the trial judge. The refusal to consent to the assessments is based on the view of counsel for the Plaintiff that it is unnecessary, perhaps unfair, and further, that these examinations could result in a delay in the trial.

[15] There can be no hard and fast rule on the number of independent assessments a Defendant is entitled to; it depends on the nature of the case, the type of injuries sustained, and the evidence that has been garnered by the Plaintiff. In considering the number and/or type of examinations that a Defendant be allowed, the Court must consider the issues that will have to be adjudicated at trial. I agree that a Defendant is not entitled to multiple examinations as of right: Van Dijk-Alac v. Aviva General Insurance Company[^3]; however, a Defendant is not restricted to one examination and furthermore, neither a Plaintiff nor her counsel can dictate the terms of an examination.

[16] The law is clear that a Defendant is not entitled to an examination in an area which has not been placed in issue by a Plaintiff; nor is a Defendant entitled to examinations by specialists whose expertise is duplicative or repetitive.

[17] When counsel wish to undertake examinations and it is opposed by the adverse party, the onus is on the party seeking the assessments to demonstrate on the facts of the specific case that the examinations are necessary for trial fairness and that the assessments will not delay the trial.

[18] In my view, simply because the Plaintiff has served a report from a certain type of expert does not mean that an examination by the same type of expert retained by the defence is required. It depends on various factors, including the seriousness of the injury complained of and the availability of other evidence to address the allegation. Again, such a determination is based on the facts of a specific case. I agree with the comments expressed by the Court in Van Dijk-Alac supra, at para. 14, “…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.” The Court’s overarching concern is trial fairness and to ensure that each party has the ability to put before the trier of fact expert opinions on the issues in dispute.

Analysis

[19] I turn now to the facts of this case. The Plaintiff is a lawyer; she alleges in her Statement of Claim that she suffered a traumatic brain injury and a concussion in the accident, which has left her with cognitive and psychological impairments. The Plaintiff states that she has anxiety, depression, and post-traumatic stress disorder as a result of the accident. Furthermore, she asserts that these injuries have impacted her ability to work as a lawyer. She was unable to return to her previous job as a lawyer for a significant period of time. Subsequently, she attempted to return to work on several occasions, but left her place of employment and asserts she was unable to work due to her problems from this accident. She found a job at another firm but states that she could not continue and is now self-employed. Her claim for special damages, including loss of income, is $4 million.

[20] The Plaintiff also alleges that she has pain complaints arising from soft tissue injuries to various parts of her body in the accident, specifically her neck, back and arms. She has had to undertake physical therapy for these injuries. Her Statement of Claim, which may contain some “boiler plate” paragraphs, pleads that she has headaches, dizziness, mood disorders, cognitive defects, and emotional trauma, along with other problems which she attributes to the accident. These soft tissue injuries with accompanying pain complaints are often referred to by treating specialists as chronic pain issues.

[21] In her Statement of Claim, the Plaintiff asserts that her physical injuries together with her brain injury and emotional sequelae have not only impacted her ability to earn income as a lawyer, but also have prevented her from attending to things around the house and have necessitated her seeking treatment and therapy in the past, which continues.

[22] The Plaintiff has been assessed by a variety of experts who have delivered their opinions by way of reports in this lawsuit. Some were commissioned in the accident benefits claims, some are from treating practitioners, and some are experts retained for this litigation. From medical specialists, there are reports/opinions from a neuropsychologist, psychologists, an optometrist, a neurosurgeon, a neurologist, physiatrists, and a psychiatrist. There has been an expert report from a vocational specialist, an occupational therapist, and a psychotherapist.

[23] In the affidavit of the law clerk Jenna Zorik, filed in opposition to this motion, it is deposed that the accident benefits insurer had the Plaintiff assessed by a number of specialists, including some of the same type of specialists that the Defendants seek to obtain examinations from in this tort action. The fact that another insurer in a different context required the Plaintiff to be assessed by specialists of their choosing is of no moment to the rights of a Defendant in a tort action to request a Plaintiff attend more than one independent assessment pursuant to the Rules. Assessments in the context of an entitlement to Statutory Accident Benefits (“SABS”) are for a very different purpose than those commissioned in a tort claim. Generally, the assessments in the SABS scheme are time-limited and are directed to a narrow question, the entitlement of a Plaintiff to certain defined benefits.

[24] Furthermore, depending on the circumstances, the opinions of assessors in the accident benefits claims may not be deemed admissible by the judge at the trial of a tort action. The fact that the Plaintiff intends to elicit opinions from treating practitioners or participant experts at the trial does not lend support to the Plaintiff’s position that the Defendants ought not to be permitted to have various assessments by different experts. The Plaintiff has the ability to call participant experts at trial, generally treating practitioners of the Plaintiff, along with experts retained pursuant to Rule 53, often referred to as litigation experts. In order to address those opinions and to meet the case that is presented at trial, a Defendant must have the ability to respond to those opinions through expert evidence based on assessments in the context of this litigation. The number of assessments and the nature of the specialties, as I have indicated, depends on the case.

Examination by a Psychiatrist

[25] The Defendants wish to have the Plaintiff examined by Dr. Rosebush; her curriculum vitae in the record indicates she is qualified to conduct an assessment. The position of the Plaintiff is that Ms. D’Eon’s saw her treating psychiatrist [Dr. Zamir] on one occasion and a report has been provided “that gives the Court a full answer.” With respect, that is not the test. Dr. Zamir’s report of March 11, 2020, offers Dr. Zamir’s opinion on the Plaintiff’s anxiety and depression and her need for prescription medication. Dr. Zamir acknowledges Ms. D’Eon’s history of “generalized anxiety disorder” which pre-dated the accident, as well as the role of other stressors in her life. The Plaintiff has described a history of depression to various specialists who have examined her.

[26] The medical documentation does not indicate that the Plaintiff saw a psychiatrist on one occasion. Rather, in the report of the neuropsychologist Dr. Davidson, who assessed the Plaintiff at the request of her counsel in 2017 and in 2019, a history of multiple concussions was provided, along with headaches and visual disturbances. She was diagnosed with a general anxiety disorder in 2012 and undertook regular therapy and took prescription medication to ameliorate her symptoms. It was noted that Ms. D’Eon was seeing her psychiatrist, Dr. Strasburg, once a month prior to the accident.

[27] The Plaintiff has been assessed by numerous doctors both in the accident benefits context and in this tort action. The medical evidence documents a long-standing history of an anxiety disorder which is referenced by several of the specialists she has seen. As well, she had “multiple chronic pain conditions prior to the motor vehicle accident” according to the neurologist, Dr. Slegr, who assessed her on the referral of Dr. Tator, the neurosurgeon.

[28] The Defendants are not required to accept the opinion of Dr. Zamir; they are entitled to test it and to have an opinion from a specialist who will be permitted by the Court to offer expert opinion on the issue of the Plaintiff’s current status and on the role of the accident in the Plaintiff’s current presentation—the causation issue. Depression and anxiety are complex medical conditions which are treated by psychiatrists, which the Plaintiff had prior to the 2016 accident and for which she sought treatment. Furthermore, Dr. Zamir notes that the Plaintiff took prescription medication for these issues before the accident and continues to do so, perhaps at different levels. A psychiatrist is uniquely situated to comment on a person’s use of prescription medication for depression and anxiety. In my view, on the evidence, the Defendants are entitled to have the Plaintiff examined by a psychiatrist.

Examination by a Neurologist

[29] The Defendants wish to have the Plaintiff examined by Dr. Yufe, who is a qualified neurologist. The original neurologist selected, Dr. Angel, refused to participate after learning the identity of the law firm acting for the Plaintiff. As a result, Dr. Yufe was selected.

[30] The Plaintiff is advancing a case of a traumatic brain injury sustained in the accident. She complains of disabling headaches and vision difficulties following the accident. Her treating optometrist, Dr. Quinn, notes in his report that the Plaintiff has “dizziness, headaches, concentration issues, memory issues, light sensitivity” along with other complaints. He offers the opinion that she has binocular vision issues arising from her concussion and on that basis alone, she is prevented from being gainfully employed.

[31] The Plaintiff asserts that she suffered a brain injury in the accident, superimposed on a history of multiple concussions. She complains of disabling headaches and vision disturbances; she has undergone CT scans of the head as well as an MRI and SPECT scan of the brain. She has been examined by both a neurosurgeon and a neurologist, the latter of whom noted “this woman has a long-standing history of headache and other chronic pain conditions. She actually had quite frequent headaches prior to this most recent motor vehicle accident and then she now has escalated to chronic daily headache.” Neurologists are trained to deal with issues arising from brain injuries and nervous system disorders. Given the Plaintiff’s complicated medical history, and the issue of causation, it is clear that an assessment by a neurologist is completely reasonable.

Examination by a Physiatrist

[32] She has been examined by two physiatrists, Dr. Mansour and Dr. Lee, who have diagnosed her with chronic pain. The solicitor for the Plaintiff has delivered reports from both of these physiatrists offering expert opinions on her injuries and the issue of causation. Dr. Cheng is a qualified physiatrist in the province of Ontario. The Plaintiff’s objection to this assessment appears to be based on a belief that an examination by a physiatrist and a neurologist is “overlapping”. That is an incorrect belief. While there is clearly overlap between various types of medical specialists, their focus is different and complementary to each other.

[33] The Plaintiff has complaints of chronic pain, which is a complicated medical diagnosis. She did not suffer any fractures in the accident, and I agree with Justice Sanfilippo that an assessment by an orthopedic surgeon would not be warranted. However, the Plaintiff complains of soft tissue injuries for which she has taken the prescribed treatment; nonetheless, she asserts that she has not returned to her pre-accident abilities with respect to her activities around her house as well as social and recreational activities. Claims for past and future care are advanced as well as for the need for assistance around the house. The Plaintiff was involved in at least 2 motorcycle accidents prior to this accident, according to the records, as well as a subsequent accident in 2019. The issue of causation in this case is central. The expertise of a physiatrist is directed towards the treatment of pain and ameliorating the severity of the pain complainants through a variety of modalities. In my view, trial fairness dictates that the Defendants are entitled to have the Plaintiff examined by a physiatrist in order to address the evidence of the Plaintiff and the experts who will testify on her behalf at trial.

Examination by a Vocational Evaluator

[34] The Plaintiff is advancing a loss of income claim on the basis of her inability to work in the same capacity as she did as a lawyer before this accident. The basis for this is multi-factorial. Ms. D’Eon was assessed by Mr. Jeff Cohen, a vocational evaluator, in 2020 and he authored a report. Mr. Cohen noted,

“The Plaintiff described being unable to return to work as a lawyer following the accident. This was related to the headaches, visual disturbances, cognitive limitations and neck and back pain. She found she could not keep up the pace that was required; she also had memory problems. She was unsuccessful in her attempts to return to her job at TD Insurance. She found work in another firm but she was unable to continue as a result of her injuries. The evidence indicates she is attempting to work on a part-time basis at the present time in Winnipeg. She advised Mr. Cohen that she “does not believe she will be able to manage working protracted hours that are often required of new lawyers in order to establish their careers...She noted that she would require some retraining to support a transition to alternate work. Ultimately, she was unsure as to her options.”

[35] Claims for past and future loss of income are being advanced. In his report, Mr. Cohen suggests various other jobs which might be suitable for the Plaintiff in light of her disabilities. This evidence will presumably form the basis for the calculation of the loss of income into the future.

[36] I agree with the analysis undertaken by Edwards J., in Ziebenhaus et al. v. Bahlieda et al.,[^4] 2012 ONSC 3787, where he dealt with the issue of the propriety of a defence assessment by a vocational specialist. Although his decision was rendered a decade ago, his analysis remains helpful. In ordering the vocational assessment, Edwards J. noted to following factors as being important to his consideration: the assessment was directed to an important issue in the case; it was not unnecessarily intrusive to the Plaintiff; the opinion would be of assistance to the trier of fact as a vocational specialist has special knowledge concerning the potential work capacity of the Plaintiff; and it would not cause any undue hardship to the Plaintiff. In my view, all of these factors are present in this case and are compelling to my analysis.

[37] Furthermore, I agree with the comment of Justice Edwards, “where a Plaintiff advances a past and future wage loss claim of the nature advanced in this case, it can hardly be said that the Plaintiff would not have anticipated the potential for a vocational assessment.” In my view, trial fairness dictates that the Defendants are entitled to the vocational assessment.

[38] In conclusion, this is a case with complex medical issues and the issue of causation is significant. The role of an expert witness is to assist the Court in areas outside of the realm of knowledge of an ordinary person without any special training. The Plaintiff has been assessed and treated by a host of specialists because her complaints are many and diverse. In order to fairly respond to the case advanced by the Plaintiff, this is a case where it would be unfair for the Defendants to proceed to trial without expert opinions from specialists who have conducted examinations of the Plaintiff, at the request of the Defendants, and can respond to the expert evidence called at trial by the Plaintiff.

[39] The trial of this action is set for June 2023; the assessments sought are currently scheduled for September 2022. I do not accept that the assessments will cause delay to the case or require an adjournment of the trial date. To the contrary, they have been arranged to minimize the inconvenience to the Plaintiff and to ensure that the reports will be delivered in accordance with the requirements of the Rules.

The Practice of Counsel for the Plaintiff Contacting the Assessor Prior to an Examination to Impose Conditions

[40] Another issue arose during the motion which I wish to comment on. At the motion before Josefo A.J., counsel for the Defendants asked that the Court order the solicitor for the Plaintiff to cease writing to the evaluators retained by the Defendants for the examinations. Counsel for the Plaintiff had written directly to Dr. P. Comper, a neuropsychologist, who was scheduled to perform an examination of the Plaintiff. In his correspondence, counsel set out certain terms and conditions governing the assessment. He demanded that any consent forms be sent to him for review in advance. He told Dr. Comper not to prepare any supplementary reports or addenda to his report without securing further written consent from the Plaintiff. Furthermore, counsel wrote that he had a concern with “ghost-writing” of Dr. Comper’s report and a request was made that the Plaintiff be allowed to videotape the assessment. Reference was made in the letter to Dr. Comper to professional misconduct and various sections of the Regulations governing the conduct of psychologists in Ontario. As a result of the correspondence from the solicitor for the Plaintiff, Dr. Comper refused to do the assessment and the solicitor for the Defendants had to retain another neuropsychologist to complete the assessment.

[41] The issue of the solicitor for the Plaintiff writing directly to Dr. Comper was argued before AJ Josefo. In his decision, he commented,

in my view, this letter was extremely heavy and high-handed in its various admonishments and diktats; and fairly would be perceived as threatening in tone and content. Referring to professional misconduct, and to one’s regulatory body, for example, can in the context of this letter clearly be seen, reasonably, as a threat or as an attempt to intimidate…Moreover, this was, unfortunately, not the only letter…it was not an exception but rather, a modus operandi of the Plaintiff’s firm for this file….I observe that counsel again attempted to spell out to Dr. Wiseman the purpose of the evaluation, which counsel purported to limit…This letter was equally inappropriate as was the one sent to Dr. Comper.”

[42] Associate Justice Josefo went on to state, “I find that I have jurisdiction to direct all counsel for the Plaintiff to not communicate further to or with Defendants’ experts. Given the actual and further potential deleterious impact of such communications, and that it is frankly improper for the Plaintiff to attempt to impose terms on the Defendants’ expert, I so direct that all such communications cease.”

[43] In his Reasons for Decision, Sanfilippo J. concurred with the views of Josefo AJ concerning the attempt by counsel for the Plaintiff to impose the terms and conditions on the independent assessment. He noted that the Court of Appeal in Bellamy v. Johnson[^5] specifically stated that the Plaintiff has no right to determine how the examination is to be conducted; the Court is the only entity that has the right to set terms and conditions for the examination.

[44] The issue of counsel trying to direct terms of a defence assessment is not a novel one. In Valente v. City of Toronto[^6] Master Jolley stated that the Plaintiff cannot impose conditions or restrictions on an independent assessment conducted on behalf of the defence. She noted that the consent of a Plaintiff is not required because the Rules and the Courts of Justice Act set out the procedure for an independent medical that is ordered by the Court. I agree with the view of Master Jolley. Unfortunately, the practice of counsel for the Plaintiff setting out conditions upon which they will agree to a defence medical seems to be occurring with some regularity. This has resulted in motions before the Court to determine what, if any, conditions ought to be imposed on an independent examination. The law is clear on this point and counsel resorting to the Court to determine how examinations are to be undertaken is stretching judicial resources at a time when the Court is emerging from the pandemic and is endeavoring to provide access to justice in a timely fashion to litigants.

[45] It is inappropriate for a solicitor for a Plaintiff to write directly to the individual who is retained by the defence to conduct an independent assessment of the Plaintiff. It is improper for any counsel to attempt to intimidate or threaten an assessor retained by the opposing party. If counsel is concerned about what will transpire during an assessment, and there may be very good reasons for such a concern, depending on the nature of the case, courtesy between advocates dictates that counsel raise such issues with opposing counsel and attempt to work out the issues on a consensual basis. If that is not possible a case conference should be secured with a judge, in Toronto, prior to embarking on a motion.

Conclusion

[46] The Plaintiff will attend the assessments conducted by Dr. Rosebush (psychiatrist), Dr. Cheng (physiatrist), Dr. Yufe (neurologist), and Mr. Fitzgerald, (vocational specialist) arranged by the Defendants for September 2022. If there are any issues arising from my order, I may be contacted.

[47] I encourage counsel to agree on the costs of this motion. If that is not possible, please advise my assistant Ms. Kidd and I will deal with it.

Date: July 27, 2022

[^1]: Bonello v. Taylor 2010 ONSC 5723 [^2]: Ziebenhaus v. Bahlieda, 2014 ONSC 138, aff’d 2015 ONCA 471 [^3]: Van Dijk-Alac v. Aviva General Insurance Company, 2021 ONSC 1344 [^4]: Ziebenhaus et al. v. Bahlieda et al., 2012 ONSC 3787 [^5]: Bellamy v. Johnson (1992), 1992 7491 (ON CA), 8 OR (3d) 591 (C.A.) [^6]: Valente v. City of Toronto, 2018 ONSC 4991