Court File and Parties

COURT FILE NO.: CV-18-3191-00 DATE: 2023 02 16 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Andreea Ciubotariu AND: Dhiraj Joshi and Sushma Joshi

BEFORE: André J.

COUNSEL: K.P. Campbell, for the Plaintiff I.N. Mutter, for the Defendants

HEARD: December 13, 2022

Endorsement

André J.

[1] The Defendants bring a motion for an order compelling the Plaintiff to attend at a live assessment conducted virtually, on a specified date, with psychiatrist Dr. D. Berbrayer. The Plaintiff has refused to attend the assessment without a court order.

Background Facts

[2] The Plaintiff was involved in a motor vehicle accident on October 20, 2016, at an intersection in Brampton.

[3] The Plaintiff alleges that she suffered serious and permanent physical injuries resulting in neck, back, shoulder, hip, leg, knee, and ankle pain. The Plaintiff filed a Statement of Claim on July 13, 2018, seeking damages in the amount of $1,000,000 plus costs and interests.

[4] Examinations for Discovery were completed on July 5, 2019 and mediation occurred on March 6, 2020.

[5] A pre-trial took place on October 20, 2022. The pre-trial judge granted leave for the Defendants to bring this motion. The Plaintiff has advised that she will not attend an assessment with Dr. Berbrayer without a court order.

[6] The Plaintiff has filed four reports from various experts, including one from Dr. D. Bodnar dated December 22, 2022. The Defendants have filed a report from Dr. Berbrayer based on a review of the reports of three of the Plaintiff’s experts.

[7] The matter is scheduled for trial in May 2023.

Analysis

[8] This motion raises the following issue:

i) Should the Plaintiff be compelled to attend the planned virtual assessment with Dr. Berbrayer?

[9] For the following reasons, I conclude that she should.

[10] The Plaintiff opposes the motion on the ground that the Defendants chose a paper review rather than arranging an in-person assessment within the time stipulated in the rules for service of expert reports.

[11] The Plaintiff also submits that there is no new evidence since Dr. Berbrayer’s report was made that warrants a further assessment by Dr. Berbrayer.

The Law

[12] Section 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and applicable rules permit a party to contest allegations with respect to the other party’s medical condition when the other party has put that condition in issue. Further examinations may be appropriate in order for the court to fairly adjudicate a matter involving the evidence of medical experts: see Jeffrey v. Baker, 2010 ONSC 5620, at para. 12.

[13] In Sonny v. Sonnylal, 2010 ONSC 113, at para. 3, the court noted that the factors in determining whether a Plaintiff should be compelled to attend a further defence medical examination are necessity, fairness, and prejudice: see Jeffrey v. Baker, at para. 12.

[14] I conclude that the necessity criterion has been met by the Defendants given that Dr. Bodnar’s report was only filed on December 22, 2022 and that Dr. Berbrayer has not conducted any real assessment of the Plaintiff. A Defendant has a right to have an independent medical examination take place before a specialist of his or her choice: see Levesque v. Labelle, 2012 ONSC 6372, at para. 9.

[15] Second, trial fairness dictates that both litigants be afforded equal opportunity to present their evidence in the upcoming trial: see Edwards v. McCarthy, 2021 ONSC 4270. Third, the Plaintiff is not prejudiced if she attends for a virtual assessment by Dr. Berbrayer. Granting the Defendants’ request will not delay the trial – a factor that has been considered in assessing the criterion to determine if the defendants request should be granted: Edwards, para. 28.

[16] The Plaintiff’s counsel submits that the Defendants chose a paper review rather than arranging an in-person assessment within the time set out in the rules of service of expert reports. In my view, the imperatives of trial fairness trump the need to comply with the rule. Second. Dr. Bodnar’s report would go unchallenged if the Defendant’s request is not granted. That, in my view, would be unfair given the injuries which the Plaintiff has allegedly sustained and the quantum of damages that she claims.

[17] The Plaintiff’s counsel submits that the Defendants knew about the Plaintiff’s claim based on chronic pain over three years ago and therefore should be denied the relief they now seek at the eleventh hour. Dr. Bodnar concludes in his report that the Plaintiff’s pain “is a direct result of the injuries sustained in the accident.” The Defendants should be permitted to challenge this opinion.

[18] Based on the above, the Defendants’ motion is granted.

Costs

[19] The Defendants have been successful in the motion and are entitled to such costs that can be considered fair and reasonable. While the legal issues were not complex, the motion required a fair amount of research and preparation including the preparation of factums. In my view, costs fixed in the amount of $2,500 inclusive are fair and reasonable in this matter.

André J. Date: February 16, 2023

COURT FILE NO.: CV-18-3191-00 DATE: 2023 02 16 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Andreea Ciubotariu - and - Dhiraj Joshi and Sushma Joshi ENDORSEMENT André J. Released: February 16, 2023