Court File and Parties

Court File No.: CV-18-00593560-0000 Motion Heard: 2021-10-06 Superior Court of Justice - Ontario

Re: Yini Han and Wei Dong Hu, plaintiffs And: Daniel L. Elliott and CWH Distributing Services Inc. operating as CW Henderson Distribution Services, Defendants

Before: Associate Justice R. Frank

Counsel: Maximir Luburic, Counsel for the defendants/moving parties, Daniel L. Elliott and CW Henderson Distributing Services Brume Jabuoma, Counsel for the plaintiffs/responding parties

Heard: October 6, 2021

Reasons for Decision

A. INTRODUCTION

[1] This is a motion by the defendants seeking:

a. an order that the plaintiffs produce the original diagnostic imaging records referenced in their affidavits of documents;

b. an order that the plaintiffs reattend for discovery to answer questions arising from their undertakings, or from questions taken under advisement, or refused; and

c. an order pursuant to section 105 of the Courts of Justice Act that the plaintiff, Wei Dong Hu, attend a defence medical examination with Dr. Bruce Paitich, orthopaedic surgeon.

[2] In their notice of motion, the defendants also sought an order compelling the plaintiffs to answer certain undertakings given at their respective examinations for discovery. That part of the motion was resolved by the parties, subject to cost submissions.

[3] For the reasons outlined below, the motion for production, further examination for discovery, and a further defence medical of Mr. Hu is granted.

B. BACKGROUND FACTS

[4] The plaintiffs’ claim arises from a motor vehicle accident on March 17, 2016. In this action, the plaintiffs seek recovery for damages as a result of injuries allegedly sustained in the subject accident.

[5] The plaintiffs’ examinations for discovery took place in August 2019. At Wei Dong Hu’s examination for discovery, he was asked to produce the original diagnostic imaging records referenced in his affidavit of documents. The question was refused. When asked for the basis of the refusal, plaintiffs’ counsel stated:

No. If you want a defence medical, we’d be pleased to provide any imaging directly to the doctor, but we’re not producing the images to Counsel.

It’s only relevant in the context if you’re getting the medical opinion. If there’s going to be a defence medical, that’s fine, but I’m not prepared to produce original films so that you can shop them around to get various opinions that I know nothing about. So that’s the reason. So, that’s a refusal.

[6] At Yini Han’s examination for discovery, she was asked to produce the original diagnostic imaging records referenced in her affidavit of documents. The question was refused. When asked for the basis of the refusal, plaintiffs’ counsel stated:

For the record, if you wish to have my client examined, like medical doctor, I’d be quite happy to have the original films transferred directly to the doctor for the purposes of the doctor’s examination and after which, of course, you’re obliged to provide me with a copy of the doctor’s report.

[7] Mr. Hu has produced various expert reports in support of the injuries he alleges to have suffered as a result of the subject accident. The medical reports include an orthopaedic assessment report authored by Dr. Tajedin Getahun dated November 17, 2017. Dr. Getahun commented on Mr. Hu’s left hip labral tear. He opined that although Mr. Hu does not specifically recall the trauma to his hip causing the injury, the left hip labral tear is consistent with trauma to the left knee and hip and, on the balance of medical probabilities, the labral tear is an acute tear rather than a degenerative tear.

[8] By correspondence dated January 13, 2020, the defendants sought to schedule defence medical assessments for both plaintiffs with Dr. Mailis (a physiatrist) and Dr. Paitich (an orthopaedic surgeon). Further correspondence regarding scheduling was exchanged between counsel.

[9] Ms. Han was examined by Dr. Mailis on the morning of January 21, 2020.

[10] On the afternoon of January 21, 2020, a law clerk at the office of defendants’ counsel emailed a law clerk at the office of the plaintiffs’ counsel with respect to the intended examinations of the plaintiffs by Dr. Paitich. That same afternoon, a law clerk at the office of plaintiffs’ counsel sent a response indicating that she believed plaintiffs’ counsel was not agreeable to having two physical assessments of the plaintiffs and that plaintiffs’ counsel would be dictating a letter.

[11] On January 23, 2020, Mr. Hu was assessed by Dr. Mailis, a chronic pain specialist. In her report, Dr. Mailis stated that she is not an orthopedic specialist, however, Mr. Hu’s reporting on his injury is not consistent with the literature she has reviewed regarding labral tears. Dr. Mailis recommended that Mr. Hu attend an independent orthopedic assessment with a surgeon familiar with labral tears and procedures.

[12] By letter dated February 13, 2020, plaintiffs’ counsel wrote to defendants’ counsel advising that it was the plaintiffs’ position that the defendants were only entitled to one defence medical assessment for physical issues.

C. LAW AND ANALYSIS

(1) Should the original diagnostic images be produced?

(a) Submissions of the parties

[13] The defendants’ position is that production of the original diagnostic images is necessary in order for the defendants to meet the claims against them. They submit that the plaintiffs have improperly refused to produce the original diagnostic imaging referenced in each of their affidavit of documents. The defendants submit that the documents must be produced because they are:

a. within the possession, control, or power of the plaintiffs; and

b. relevant to the action because they have information with respect to the injuries the plaintiffs are actually suffering from and the severity of those injuries, which is critical to determining the extent the plaintiffs’ health has been impacted by the subject accident.

[14] The plaintiffs do not dispute that the diagnostic images are listed in their affidavits of documents and are generally relevant. However, they take the position that, in addition to relevance, the court must also consider issues of proportionality. Relying on Rule 1.04 and Rule 29.2.03, they assert that they have produced the relevant medical reports, and that the request for the original diagnostic imaging is vague, disproportionate, unduly onerous and could lead to a fishing expedition. Their position is that the diagnostic imaging need only be produced to specific medical practitioners for the purpose of conducting a defence medical examination, if any are ordered to proceed.

(b) Legal background, discussion and analysis

[15] Rule 30.02(1) provides that every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed, whether or not privilege is claimed in respect of the document.

[16] Rule 30.02(2) states that every document relevant to any matter in issue that is or has been in the possession, control or power of a party to the action shall be produced for inspection if requested unless privilege is claimed in respect of the document.

[17] Pursuant to Rule 34.10(2)(a), a person to be examined shall produce for inspection on an examination for discovery, all documents in his or her possession, control or power that are not privileged. Rule 30.01(1)(b) provides that a document shall be deemed to be in a party’s power if that party is entitled to obtain the original document or a copy of it and the party seeking it is not so entitled.

[18] The defendants submit that the applicable test for production of the original diagnostic imaging is whether it is “relevant to any matter in issue” as defined by the pleadings.[^1] They submit that when damages are claimed in a personal injury action, the medical condition of a plaintiff both before and after the accident is relevant.[^2] They argue that, subject to privilege, a plaintiff in a personal injury action is obliged to produce relevant medical documentation in the party’s possession and to authorize medical practitioners to produce post-accident treatment notes and records.[^3]

[19] In response, the plaintiffs assert that production of the diagnostic imaging is not required because:

a. it was not requested for the defence medical examinations conducted to date; and

b. no further defence medical examinations can be conducted.

[20] As a result, the plaintiffs argue that production of the diagnostic imaging will not advance the litigation and is bound to be useless, and that production would be prejudicial to them because it would place an unnecessary burden on them and amount to a waste of money.

[21] I do not accept the plaintiffs’ argument that the request for original diagnostic imaging is vague, disproportionate or unduly onerous, or that it will place an unnecessary burden on them. Nor do I accept the plaintiffs’ argument that the production could lead to a fishing expedition by the defendants because they would then be able to present the diagnostic imaging to multiple medical practitioners who could produce reports that the defendants are not obliged to provide to the plaintiffs. The defendants are entitled to receive the original diagnostic imaging, which is relevant, and it is not for the plaintiffs to determine how the defendants choose to use it. Further, I do not accept the plaintiffs’ argument that the existing production of medical reports that refer to the original diagnostic imaging is sufficient. The original diagnostic imaging should be produced to the defendants so that they can decide whether they wish to seek opinions based on those records or use it at trial.

[22] I find that the plaintiffs’ refusal to produce the original diagnostic imaging was improper. The original diagnostic imaging is relevant, and its production is reasonable, proportional, and justified in the circumstances.

(2) Should the plaintiffs be required to reattend for further examinations for discovery?

(a) Submissions of the parties

[23] The plaintiffs’ position is that there is no automatic right to a follow-up examination, and they should not be required to reattend for discovery because there were no answers given that were incomplete or no longer correct.

[24] The defendants’ position is that the re-examination of the plaintiffs can be characterized as a continuation of the initial examination for discovery because the defendants wish to pose appropriate follow-up questions to undertakings given during the initial examination of the plaintiffs. As such, the defendants submit that the plaintiff’s must reattend at examinations for discovery for the useful purpose of ensuring full and fair disclosure.

(b) Legal background, discussion and analysis

[25] Pursuant to Rule 31.03(1), a party to an action may examine for discovery any other party adverse in interest, once, and may examine that party more than once only with leave of the court.

[26] Pursuant to Rule 31.09, where a party provides information in writing that corrects or completes answers given on examination, an adverse party may require that the information be verified by affidavit or the subject of a further examination for discovery.

[27] Re-examination may be permitted if the reattendance can be characterized as a continuation of the initial examination for discovery, as opposed to a second examination for discovery. For example, re-examination will be considered a continuation of the original examination when counsel wishes to pose appropriate follow-up questions to answers given pursuant to undertakings given during the original examination.[^4] As explained by Master MacLeod (as he then was):

The question of examining “more than once” is in practice a question of whether the examination was actually completed. Improper refusals are an interruption of the discovery while undertakings are an acknowledgment that the question is a proper one and a promise to obtain and provide the answer. Generally speaking, had the discovery not been interrupted by the refusal or the answer to the undertaking been available, not only would the answer have been given under oath as part of the transcript but the examining party would have been entitled to ask appropriate follow up questions as part of the examination. Arguably then an answer that genuinely gives rise to follow up questions should give rise to a right to complete the oral discovery as if the question has been answered.[^5]

[28] The relevant principles are summarized as follows:

• As 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. A party being examined may not compel the examining party to accept answers in writing simply by refusing to answer questions or by giving undertakings.
• On the other hand, the court will not automatically make an order for follow up discovery if it serves no useful purpose. Examples in which an order may not be appropriate would be cases in which a full and complete written response has been given to a simple question, in which the answer demonstrates that the question was not relevant or in which the parties have agreed that written answers will suffice.
• The court will generally make such an order if it appears necessary in order to fulfill the purposes of discovery. Examples of situations in which an order would be appropriate are situations in which the answers appear cursory or incomplete, where they give rise to apparently relevant follow up questions that have not been asked, if newly produced documents require explanation, or the discovery transcript supplemented by the answers will not be understandable or useable at trial.
• Even if answers do appear to require follow up, the court has discretion to order answers in writing or to decline to order further examination where it appears the cost or the onerous nature of what is proposed outweighs the possible benefit or where for any other reason it appears unjust to make such an order. Such discretion should be exercised only if the interests of justice require it.[^6]

[29] The plaintiffs argue that they have satisfied their answers to undertakings and the defendants have failed to demonstrate that follow up questions are necessary or appropriate in the circumstances.

[30] The difficulty with the plaintiffs’ position is that they concede that the defendants have not had an opportunity to review some of the answers to undertakings for information that is in the possession of third parties who have refused to produce it. Further, based on a review of the undertakings given by the plaintiffs and the answers provided to date, it appears that there will be appropriate follow-up questions that the defendants should not be required to pursue in writing. Should the defendants determine that a reattendance is more appropriate, the continued examination will be limited to appropriate follow-up questions.

[31] In my view, it is appropriate in the circumstances for the defendants to have the right to require the plaintiffs to reattend for discovery to answer questions arising from their undertakings, or from questions taken under advisement, or refused.

(3) Should Mr. Hu be required to attend a further defence medical examination?

(a) Submissions of the parties

[32] The defendants’ position is that the question of whether to permit a further defence medical examination must be considered in the context of the issues in dispute in this action, which include questions about the nature and mechanics of Mr. Hu’s injuries, specifically his left hip labral tear.

[33] The defendants submit that Mr. Hu’s medical experts were unable to comment on the cause of Mr. Hu’s labral tear. They assert that although the defendants’ medical expert, Dr. Mailis, a physiatrist, found Mr. Hu’s reporting to be inconsistent with the literature she reviewed regarding labral tears, she was unable to comment on the cause of Mr. Hu’s left hip labral tear because she is not an orthopaedic specialist and labral tears are outside the scope of her practice. Therefore, the defendants argue, a further defence medical assessment with an orthopaedic surgeon familiar with labral tears and procedures is warranted in the circumstances. It is their position that such an assessment is essential to address the issues of nature, causation and prognosis of the plaintiff's labral tear, as well as any impairments and impact on the plaintiff's ability to engage in activities of daily living.

[34] In response, the plaintiffs’ assert that no further defence medical is necessary or appropriate. In summary, their position is as follows:

a. The defendants are required to provide evidence demonstrating the need for a second examination. The defendants were aware of the plaintiff's orthopaedic injuries and, prior to the defence medical examination by Dr. Mailis, the defendants were aware of Dr. Getahun’s orthopaedic assessment in which he opined that Mr. Hu's left hip labral tear is consistent with trauma to the left knee and hip, i.e. the subject motor vehicle accident.

b. Despite their knowledge of this information, the defendants opted to proceed with an examination by a physiatrist rather than an orthopaedic surgeon. The defendants should not now be permitted to pursue an orthopaedic assessment without providing evidence that it is warranted and that it would be unfair to allow the case to proceed to trial absent the requested report.

c. In the current circumstances, an orthopaedic assessment is not necessary because, although Dr. Mailis acknowledged that she is not an orthopedic specialist and that labral tears are outside the scope of her practice, she conducted a literature review of the causes of labral tears and opined that Mr. Hu's labral tear was not acutely traumatic. In other words, she opined that she is of the view that the subject accident did not cause the tear. As a result, Dr. Mailis’ literature review and physical findings bridged the gap of expertise and formed the basis of her opinion as to the cause if Mr. Hu’s labral tear. Any further assessment would be aimed at obtaining corroboration for Dr. Mailis’ opinion, will not level the playing field and will lead to increased litigation costs. Further, the Defendants are estopped from arguing that Dr. Mailis is unable to opine on Mr. Hu's labral tear because it is beyond her expertise when they knew or ought to have known about Mr. Hu's labral tear at the time they commissioned Dr. Mailis’ report.

d. The Defendants have not met their evidentiary obligation, as described in Bonello v. Taylor,[^7] to show that the requested orthopedic assessment is warranted and legitimate, and not made with a view to causing prejudice to the plaintiff or sought simply to corroborate an existing report.

(b) Legal background, discussion and analysis

[35] Section 105(2) of the Courts of Justice Act provides that where the physical or mental condition of a party to a proceeding is in question, the court, on a motion, may order the party to undergo a physical or mental examination by one or more health practitioners. Rule 33.02(1) provides that an order under Section 105 of the Courts of Justice Act may specify the time, place and purpose of the examination and shall name the health practitioner or practitioners by whom it is to be conducted.

[36] In Bonello,[^8] Brown J. (as he then was) provided the following summary of the principles with respect to when a second or further examination may be ordered under section 105 of the Courts of Justice Act and Rule 33:

a. 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;

b. 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;

c. 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. In the circumstances of the present case I need not wade deeply into that question. That said, 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;

d. 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;

e. 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. Some cases have suggested that need must be established by filing medical evidence, such as an affidavit from the first examining physician recommending a further examination by a health practitioner competent in another specialty. In other instances an affidavit from a lawyer or law clerk attaching medical reports has been utilized by the court. But, at the end of the day, determining whether the nature of the evidence filed is sufficient remains essentially an exercise of judicial discretion;

f. 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

g. 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.

[37] The defendants rely on Moore v. Royal Insurance Company of Canada,[^9] in which the court held that a defendant seeking to have a second or subsequent medical examination conducted by a different doctor or specialist is required to demonstrate that the plaintiff’s injuries fall outside the expertise of first doctor. They submit that the current situation is analogous to the circumstances in in Federico v Hassan,[^10] where the court held that a second examination may be appropriate in a personal injury claim where it is necessary for a defendant to have the plaintiff assessed by a neurologist in order to address the issues of nature, causation and prognosis of the plaintiff’s alleged neurological injuries, impairments and impact on the plaintiff’s ability to engage in activities of daily living. Here, they say that the further examination is necessary to determine the cause of the labral tear in Mr. Hu’s hip.

[38] In response, the plaintiffs rely on several cases in which the court declined to exercise its discretion to allow a second defence medical examination. Citing Bougouneau v. Sevigny[^11] and Marfo v. Ahmed,[^12] the plaintiffs submit that the defendants have failed to demonstrate that the requested examination is necessary in the context of the injuries and symptoms complained of and the evidence already tendered by the plaintiffs.[^13] As noted above, they submit that defendants chose to have Mr. Hu’s physical injuries examined by a physiatrist when they knew of Mr. Hu’s orthopaedic assessment and that he will be relying on the report from Dr. Getahun at trial. They submit that, as was the case in Bougouneau, Marfo, Boulet and Mason v. MacMarmon Foundation,[^14] the request for a further examination (here, an orthopaedic assessment) should not be permitted.

[39] In my view, the case law relied on by the plaintiffs is distinguishable based on the current facts and circumstances. First, the plaintiffs were aware that the defendants were seeking two physical examinations of the plaintiffs – one by a physiatrist and one by an orthopaedic surgeon. I agree with the plaintiffs’ position that this alone would not entitle the defendants to both examinations. However, contrary to the plaintiffs’ argument, I find that the plaintiffs did not make it clear from the outset that they required the defendants to make an election between an examination by a physiatrist or an orthopaedic surgeon. The correspondence between the parties indicates that, from the outset, the defendants were attempting to schedule physical examinations by both a physiatrist and an orthopaedic surgeon. While the plaintiffs ultimately refused the latter, I find that their position on the issue was not confirmed until February 13, 2020, which was after both plaintiffs had already been examined by a physiatrist. The plaintiffs rely on an email exchange that occurred on January 21, 2020 to argue that they had provided notice that they disputed the defendants’ right to a physical examination by both a physiatrist and an orthopaedic surgeon. On this basis, they submit that by January 21, 2020 the defendants were put to an election as to whether to have the physical examinations conducted by a physiatrist or an orthopaedic surgeon. However, I find that the January 21, 2020 email was ambiguous as to the plaintiffs’ position, and it was sent after completion of the defence medical examination of one of the plaintiffs by a physiatrist. As a result, I find that, based on the evidence, this was not a situation where the plaintiffs made it clear to the defendants before the first physical examination that (1) the plaintiffs would not consent to both examinations, and (2) the defendants had to make a choice between a physiatrist and an orthopaedic surgeon. This is distinguishable from the facts in Bougouneau.[^15]

[40] In any event, in the cases relied on by the plaintiffs, the court found that the defendant was seeking a second physical examination for purposes of corroborating an existing report. For example, in Boulet, the court found that the defendants were seeking a second assessment to corroborate findings with respect to the impact of the alleged injuries, the plaintiff’s ability to carry on normal activities of daily life (including the performance of household duties), and the limitations on the plaintiff’s ability to work.[^16] That is distinguishable from the current circumstances. In this case, the defendants are seeking an orthopaedic assessment to get expert evidence on the cause of the plaintiff’s labral tear,[^17] whereas in the cases cited by the plaintiffs, causation does not appear to have been an issue.

[41] The plaintiffs argue that there is no evidence that the defendants need an expert report that deals with the issue of causation. They argue that the report from Dr. Mailis covers this issue because it includes her views which are based on a literature review. I do not agree. In her report, Dr. Mailis stated that “an independent medicolegal orthopedic assessment by an expert surgeon familiar with labral tears and procedures, can definitely address etiological and prognostic issues related to labral tears.” As a result, I find that, unlike the circumstances in Marfo[^18] and Bougouneau,[^19] there is sufficient evidence of a need for a further examination.

[42] The plaintiffs also submit that if an orthopaedic assessment is ordered, there is insufficient evidence that Dr. Paitich has the necessary expertise to conduct such an assessment and that, in any event, the assessment may be best suited to a paper review. I do not agree. I am satisfied on the record that Dr. Paitich has the necessary expertise and that an in-person assessment is appropriate in the circumstances.

[43] Finally, the plaintiffs submit that if an orthopaedic assessment is ordered, the scope of such an assessment must be limited to Dr. Mailis’ recommendation i.e. “the etiology and prognostic issues related to labral tears”. The defendants seek a further defence medical assessment with an orthopaedic surgeon familiar with labral tears and procedures to address the issues of (1) the nature, causation and prognosis of the plaintiff's labral tear, and (2) the impairments and impact on the plaintiff's ability to engage in activities of daily living. In my view, the scope of the assessment proposed by the defendants goes too far. The evidence from Dr. Mailis is that an opinion from an orthopaedic surgeon is necessary to assess the etiological and prognostic issues related to labral tears, and I agree with the plaintiffs that any examination by Dr. Paitich should be limited in scope. Dr. Mailis has already assessed the impairments and impact on Mr. Hu’s ability to engage in activities of daily living, and allowing a further assessment by Dr. Paitich of those issues would enable the defendants to unfairly seek corroboration of an existing medical opinion.

[44] In summary, I find as follows: (1) causation of Mr Hu’s labral tear is squarely in issue in this action; (2) there is evidence relied on by the plaintiffs (Dr. Getahun’s report) with respect to the issue of whether the subject accident caused the labral tear; (3) while there is some commentary in Dr. Mailis’ report on causation, Dr. Mailis expressly stated that she is unable to assess properly the cause of Mr. Hu’s left hip labral tear because she is not an orthopaedic specialist and labral tears are outside the scope of her practice. She also stated that “an independent medicolegal orthopedic assessment by an expert surgeon familiar with labral tears and procedures, can definitely address etiological and prognostic issues related to labral tears”; (4) as a result, the question of the etiological and prognostic issues related to Mr. Hu’s labral tear fall outside the expertise of Dr. Mailis, the first examining health practitioner; and (5) a further assessment by Dr. Paitich is warranted and legitimate, and not made with a view to delaying the trial, causing prejudice to the plaintiffs, or simply corroborating an existing medical opinion.

[45] For those reasons, I find it appropriate to order that Mr. Hu attend a defence medical examination with Dr. Paitich. However, the report from that examination shall be limited to Dr. Paitich’s assessment of the etiological and prognostic issues related to Mr. Hu’s labral tear.

D. CONCLUSION

[46] The defendants’ motion is granted. I order as follows:

a. both plaintiffs shall produce the original diagnostic imaging records referenced in their respective affidavits of documents;

b. upon service of notices of examination, the plaintiffs shall reattend to be examined for further discovery, and to answer questions arising from their undertakings, or from questions taken under advisement, or refused; and

c. the plaintiff, Wei Dong Hu, shall attend a defence medical examination with Dr. Bruce Paitich on a date to be agreed upon between the parties prior to April 15, 2022. The assessment and report from that examination shall be limited to Dr. Paitich’s assessment of the etiological and prognostic issues related to Mr. Hu’s labral tear.

[47] If the parties cannot agree on costs of this motion, they may make written submissions, limited to three pages, exclusive of attachments, as follows:

a. from the defendants by February 18, 2022; and

b. from the plaintiffs within 10 days of receipt of the defendants’ submissions.

R. Frank Associate J.

Date: February 4, 2022

[^1]: Araujo v. Jews for Jesus, 2010 ONSC 5820, at para. 17 [^2]: Cook v Ip, [1985] O.J. No. 209, at para. 13 [^3]: Kulpinski v Toronto Transit Commission, [2000] O.J. No. 169, at para. 34 [^4]: Cushing v. Beaulieu, 2015 ONSC 1871, at paras. 29 and 34 [^5]: Senechal v. Muskoka (Municipality), 2005 11575, at para. 5 [^6]: Senechal, at para. 7 [^7]: Bonello v. Taylor, 2010 ONSC 5723, at para. 16 [citations omitted] [^8]: Bonello, at para. 16 [^9]: Moore v. Royal Insurance Company of Canada, 2006 1019, at para. 7 [^10]: Federico v Hassan, 2017 ONSC 4474, at para 27 [^11]: Bougouneau v. Sevigny, 2013 ONSC 2535 at paras. 55 and 60 to 66 [^12]: Marfo v. Ahmed, 2016 ONSC 3696; see, for example, paras. 5 to 10 [^13]: See also Boulet v. Sir Corp., 2016 ONSC 5379 [^14]: Mason v. MacMarmon Foundation, 2011 ONSC 5823, at paras. 46 and 47 [^15]: See Bougouneau, at paras. 21 and 60 [^16]: See Boulet, at paras. 10 and 11 [^17]: This is similar to the court’s conclusion in Mason that a further defence medical examination (by a neuropsychologist) should be permitted; see Mason, at para. 49 [^18]: Marfo, at para. 11 [^19]: Bougouneau, at paras. 29 and 65