Court File and Parties

CITATION: Bock et al. v. Gudelis, 2023 ONSC 5930 COURT FILE NO.: CV-19-00000134-0000 DATE: 20231020

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Estelle Bock and James Bock, Plaintiffs/Responding Parties AND Paul Gudelis, Estate Trustee for the Estate of David Gudelis, Defendant/Moving Party

BEFORE: Justice Spencer Nicholson

COUNSEL: M. Rynen, for the Plaintiffs A. Brown, for the Defendant

HEARD: October 19, 2023

Reasons on Motion

NICHOLSON J.:

[1] The plaintiffs have commenced an action for damages against the defendant arising from a motor vehicle accident that occurred on October 14, 2017. At the time of the accident, Estelle Bock was a pedestrian and was struck by a motor vehicle operated by David Gudelis.

[2] Ms. Bock resides in Sarnia, Ontario. She was born on September 28, 1929 and is currently 94 years of age.

[3] Ms. Bock alleges in her statement of claim that she suffered injuries primarily to her legs and feet as a result of that accident. Other parts of her body are also implicated. James Bock is a plaintiff pursuant to the Family Law Act for loss of care, guidance and companionship.

[4] In pursuit of her claim for damages, Ms. Bock was assessed at the request of her counsel by a physiatrist, Dr. Khan. Dr. Khan’s report is dated August 12, 2022. Of note, Dr. Khan’s clinic is in Toronto, but the assessment was completed in London, Ontario. Dr. Khan diagnoses:

• Right elbow sprain/strain with ulnar neuropathy; bilateral ankle sprain/strain;
• Status post non-displaced oblique fracture of the fifth metatarsal of the right foot;
• Non-specific dysesthesia of the left lower limb, may be due to left superficial peroneal neuropathy;
• Chronic myofascial pain in those areas and lumbar spine sprain/strain, now resolved.

[5] Examinations for discovery have been completed and the plaintiffs filed a trial record on May 30, 2023. No date for trial has yet been scheduled. Realistically speaking, I have doubts that this matter is reached for trial until 2025 given the current case load in Sarnia.

[6] The parties agreed to a timetable on April 14, 2023, which included that defence expert assessments would be scheduled by September 30, 2023.

[7] In accordance with that schedule, the defendant arranged for Ms. Bock to be assessed by physiatrist, Dr. Suno Liao on June 20, 2023, in Scarborough. Plaintiffs’ counsel was advised of this appointment by emailed letter dated May 16, 2023 and was asked to confirm the plaintiff’s attendance at the appointment.

[8] On May 29, 2023, a legal assistant for counsel for the plaintiff, on instructions from counsel (Ms. Lee), emailed to defence counsel (Mr. Vitols) as follows:

Good morning Mr. Vitols

I am reaching out to confirm our client is available for the June 20th, 2023 medical assessment. She will require transportation for this assessment.”

[9] After a few follow-up emails, on June 9, 2023, a law clerk for defence counsel provided confirmation about the transportation arrangements, which was a private car which would take her to and from Toronto from Sarnia.

[10] On June 12, 2023, Ms. Lee’s legal assistant inquired as to whether time was allotted for the driver to stop to allow Ms. Bock to have lunch and if the costs of lunch would be reimbursed. The response was that time had not been allotted for the driver to stop for lunch and that costs would not be covered.

[11] On June 13, 2023, Ms. Lee emailed Mr. Vitols and asked him to cancel the IME. She stated as follows:

“Hi Rob,

Please cancel the IME.

Ms. Bock will not be travelling to Toronto for the IME.

Please arrange for the assessor to travel to London/Sarnia. Ms. Bock is 93 years old. The assessment will take 2 hours and travel will take at least 3 hours in each direction to and from the assessment centre. In light of greater Toronto traffic, travel will likely take longer than 3 hours one way. On top of the enormous strain placed upon Ms. Bock to travel for the assessment, you have also denied any reimbursement for any meals.

Once you have provided more reasonable arrangements for the IME, please advise.

Ms. Bock will not be travelling to the Greater Toronto area for an assessment.”

[12] Later on June 13, 2023, Mr. Vitols agreed that the defendant would reimburse Ms. Bock for lunch. However, he noted that Ms. Lee’s office had confirmed that Ms. Bock would attend the assessment and they arranged transportation accordingly. He stated that there was no valid reason why Ms. Bock could not attend and that there was a $600 cancellation fee that would be levied if the appointment was not kept. He further noted that the defendant was entitled to use the doctor of their choosing.

[13] Ms. Lee responded by email dated June 15, 2023. She stated that lunch was not the only issue. She reiterated that Ms. Bock is elderly and has significant concerns about travelling that distance. She did acknowledge that the defence had the right to choose its assessor. Ms. Lee indicated that her client would not be paying the cancellation fee. She suggested that the assessment be cancelled or rearranged to take place in London or Sarnia.

[14] Mr. Vitols responded on June 15, 2023 that the within motion would be necessary and that his client would be seeking the costs of the late cancelled IME.

[15] On June 16, 2023, Ms. Lee replied that Ms. Bock was “very willing” to attend an IME scheduled in London or Sarnia. She repeated that Ms. Bock was 93 years of age and that it was unreasonable to expect her to travel for 6 hours for a 2 hour assessment. She suggested that there were plenty of assessors who are willing and able to come to London.

[16] Mr. Vitols’ office inquired with Dr. Liao who indicated that she would not come to London. He indicated that the motion to compel the plaintiff’s attendance would be forthcoming.

[17] In a subsequent email, dated June 21, 2023, Ms. Lee indicated that Ms. Bock would be prepared to travel to Kitchener if Dr. Liao was prepared to come there, so long as transportation and meals were covered.

[18] The defendant was charged a $600 cancellation fee and sought reimbursement in this motion. However, during oral argument this relief was abandoned.

[19] In response to the motion, the plaintiff obtained an affidavit from the plaintiff’s family physician, Dr. Alvin Lau, sworn October 4, 2023. Dr. Lau has been Ms. Bock’s family physician since 2014. Dr. Lau describes that:

• Ms. Bock suffers from chronic pain and lumbar disc disease;
• In recent months, Ms. Bock has been rapidly losing weight and has low energy levels;
• She was diagnosed with ovarian cancer in 2018, which is currently in remission. She was recently reassessed at the London Health Sciences Oncology Department due to the weight loss but from a cancer perspective is doing well;
• Ongoing investigations are under way to determine the cause of her weight loss and low energy levels. She has been referred to a respirologist.
• Ms. Bock has limited mobility in both feet and uses a walker to ambulate when able.
• It is his professional opinion that Ms. Bock is unable to travel long distances due to her current health and medical condition. She is medically able to travel as far as London from her home in Sarnia, with some difficulty. That trip leaves her fatigued and in a great deal of discomfort. It is Dr. Lau’s recommendation that Ms. Bock should not be required to travel any further at present.
• It is his professional opinion that travel from Sarnia to Scarborough would be detrimental to Ms. Bock’s health and may cause regression in her physical rehabilitation to date.

Legal Principles

[20] The parties appear to agree on the applicable legal principles.

[21] The defendant has not had Ms. Bock assessed by any defence expert and is prima facie entitled to do so.

[22] It was noted by Hockin J. in Manning (Litigation Guardian of) v. Ryerson, 1992 CarswellOnt. 338 that the choice of the physician who will undertake the physical assessment of the plaintiff in such actions is a matter of importance to the defence since this is the defendant’s principal and often sole medical witness. It was his view that the court should not interfere with that choice where the attendance required for such an assessment is not “unreasonably inconvenient”.

[23] In Nutley v. Kuper, Pierce J. summarized the principles guiding the determination of the location of a defence medical in personal injury actions:

• There is no general rule as to the place of the examination: Lamarr v. Marsman et al. (1975), 8 O.R. (2d) 583 (H.C.J.), p. 2;
• Prima facie, the defendant has a right to select the physician to perform the examination: Smith v. Liberty Life Assurance Co. of Boston, [2003] O.J. No. 2966 (OSC), para. 14;
• As the defendant’s medical expert may well be the only medical witness for the defence at trial, the courts should not unreasonably interfere with the choice of the medical assessor where the assessment is not unreasonably inconvenient: Manning v. Ryerson, [1992] O.J. No. 1392;
• The place of examination should be determined by what is convenient and just: Manning, ibid, at para. 5.

[24] The case law makes it clear that the defendant’s prima facie right to choose their expert is not unfettered.

[25] The plaintiff relies upon McGowan v. Green, 2020 ONSC 686. In that case, the plaintiff led uncontradicted evidence that requiring the plaintiff to travel from Ottawa to Mississauga “may result in the worsening of the Plaintiff’s symptoms and could result in a set back of her therapeutic gains she achieved in her rehabilitation to date”. The motion to compel the plaintiff’s attendance in Mississauga was dismissed.

[26] McGowan, supra, was followed in Harris v. Mast Landscaping Limited, 2021 ONSC 3937. In Harris, the uncontroverted recent medical evidence of the plaintiff’s treating family physician and treating psychologist went beyond raising a concern about the level of inconvenience in travelling to an examination in Toronto.

Application of the Legal Principles to this Case

[27] Counsel for the defendant argues that the evidence of Dr. Lau does not go far enough in establishing “unreasonable inconvenience”. I disagree. It is his professional opinion that the necessary travel between Sarnia and Scarborough poses a real risk of being detrimental to her overall health.

[28] The important factor in this case is the plaintiff’s age—94 years old. I accept that there are various levels of independence by those who have attained such an age. Nevertheless, the court can and should exercise a measure of common sense. More importantly, the court should not lightly dismiss the recommendations of a family physician in respect of a person of that age.

[29] The court should be wary of situations in which plaintiffs attempt to thwart the choice of expert made by the defendant. I likely would have taken an entirely different view if the plaintiff was younger.

[30] In my view, this is one of the rare cases in which the defendant’s choice of expert, assuming Dr. Liao will not travel to London, must yield. I am satisfied that requiring the plaintiff to travel to Scarborough is beyond inconvenient. It actually jeopardizes her health. In such circumstances, I am loathe to disagree with the professional opinion of her family physician.

[31] That is not to say that any and all plaintiffs should be excused from reasonable travel to a defence medical examination simply with a family doctor’s note. Each case must be determined on its own facts.

[32] I have considered whether plaintiff’s counsel’s initial agreement to attend the appointment ought to estop the plaintiff from subsequently refusing to attend. It is unfortunate that plaintiff’s counsel so readily agreed to the travel without carefully considering the entirety of her client’s situation. Ultimately, however, even if counsel should usually be held to their initial word, I am not prepared to risk the plaintiff’s health and well-being in light of the medical evidence adduced on this motion.

[33] As I indicated during oral arguments, I do not wish to create a precedent which allows plaintiffs to easily interfere with a defendant’s choice of expert. That creates the possibility of mischief and courts should carefully scrutinize the circumstances of the case before them. I do not believe that plaintiff’s counsel is attempting to do so here, since she did suggest that Dr. Liao travel to London or even Kitchener.

[34] I also accept that Dr. Liao will not travel and should not be expected to travel. That would place an unreasonable costs burden on the defendant. Further, I acknowledge that the list of physiatrists submitted by the plaintiff on this motion would generally be unacceptable as experts to a defendant. Accordingly, I recognize that I have encroached significantly on the experts that will be available for an assessment in this case.

[35] Nonetheless, I dismiss the defendant’s motion.

[36] However, the plaintiff’s physician has indicated that the plaintiff should be able to travel to London for an assessment. The defendant has leave of the court to arrange another defence medical examination as far away as London, Ontario.

Costs

[37] Costs of the motion are in the discretion of the court.

[38] I asked counsel to provide costs submissions without knowing the outcome of the motion. In the event that the plaintiff was successful, her counsel suggested costs in the amount of $3,500 payable forthwith. Defence counsel, in the event that the plaintiff was successful, suggested $3,000 payable in the cause (plaintiff’s counsel had suggested costs in the cause should the defendant have prevailed).

[39] It is my view that there should be some recognition that plaintiffs’ counsel initially confirmed that her client would attend and then changed her position. I feel that there should be some discouragement to such change of heart and some encouragement to carefully considering one’s position from the outset. This case also involves an unusual fettering of the defendant’s important right to choose their expert.

[40] Notwithstanding defence counsel’s costs submissions, I fix costs of the motion in the amount of $2,000, payable forthwith, which are fair and reasonable in the circumstances.

Final Comment

[41] The combination of the plaintiff’s age and the slim prospects of a trial occurring before 2025 screams for resolution. I urge counsel to devote their energies to resolving the case if possible.

“Justice S. Nicholson” Justice Spencer Nicholson Date: October 20, 2023