Court File and Parties
COURT FILE NO.: CV-19-00078987 DATE: November 24, 2023
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN: Louise Charron-Rix and Kevin Rix and Kelly Freeman
BEFORE: Justice M. S. James
COUNSEL: Joseph Obagi for the Plaintiff /Respondent on the Motion Hilary Chung, Counsel for the Defendants/Moving Party Kevin Rix
Reasons for Decision
Facts
1The defendant Kevin Rix (sometimes referred to as the “moving party”) brings this motion for an order to compel the plaintiff to attend a defence orthopaedic assessment and to extend the time for the service of the resulting defence orthopaedic report. Another part of the motion- to abridge the time for service of an engineering report- has been resolved.
2The action has been settled in relation to the defendant, Kelly Freeman, leaving Mr. Rix as the only defendant.
3The following summary of facts is drawn substantially from the moving party’s factum.
4The plaintiff, Louise Charron-Rix, was the passenger of a vehicle driven by the defendant, Kevin Rix which was involved in a motor vehicle accident that occurred on December 20, 2017, in Stittsville, Ontario. The collision involved a vehicle driven by the defendant Kelly Freeman.
5The plaintiff alleges that she suffered serious and permanent physical and psychological injuries as a result of the collision.
6A mediation was conducted on June 17, 2021. The plaintiff settled her claim against the defendant, Ms. Freeman. The mediation was unsuccessful in resolving the plaintiff’s claim vis-à-vis Mr. Rix.
7The trial record in this action was served and filed by the plaintiff. Neither Mr. Rix nor his counsel signed a certificate setting the action down agreeing for the action to be placed on the trial list.
8The pre-trial took place on June 28, 2023, before Associate Justice Kaufman, as he then was.
9The action is to proceed to trial the week of January 8, 2024, for five weeks with a jury.
10The plaintiff served a Chronic Pain Assessment of Dr. Smith dated November 9, 2019. The plaintiff served a Loss of Income Report and a Future Cost of Care Report between April 19, 2020, and June 24, 2020.
11The plaintiff served a Trial Record on January 28, 2020, thereby setting the action down for trial.
12A mediation was conducted on June 17, 2021. The present action was mediated together with the action commenced by Kevin Rix as a plaintiff. The plaintiff and Mr. Rix settled their claims against the defendant Ms. Freeman who paid the limits of her insurance policy of $1,000,000 dollars. The mediation was unsuccessful in resolving the plaintiff’s claim against her husband.
13In the plaintiff’s chronic pain report dated November 9, 2019, Dr. Smith opines that the plaintiff sustained serious and permanent injuries and is unable to work as a result of the accident that is the subject of this litigation.
14On August 14, 2023, after the pre-trial conference, the plaintiff served a Fifth Supplemental Affidavit of Documents containing updated family physician records (March 2021 to June 2023) and treatment records from physiotherapy (October 2019 to August 2023), occupational therapy (November 2019 to July 2023), vision therapy (September 2019 to August 2023), personal training (November 2018 to August 2023) and psychological therapy (July 2018 to July 2023). Prior to the pre-trial, the defendant did not have these records.
15Furthermore, the defendant had not received any medical disclosure since the delivery of Dr. Smith’s report.
16After reviewing these records, on September 25, 2023, defence counsel wrote to Mr. Obagi, counsel for the plaintiff, advising him that an orthopaedic assessment was scheduled for November 13, 2023, with Dr. Jeremie Larouche.
17On September 27, 2023, Mr. Aldersley for the plaintiff wrote to defence counsel indicating that he did not consent to the plaintiff attending the scheduled defence orthopaedic assessment scheduled for November 13, 2023.
18The plaintiff has never produced an expert’s report by an orthopaedic surgeon. The plaintiff’s expert, Dr. Smith, is an anesthesiologist, with a specialty in chronic pain.
Issues
19Should the plaintiff be compelled to attend a defence orthopaedic assessment with Dr. Larouche?
20Should the time for the service of the resulting defence orthopaedic report be extended?
Position of the Moving Party
21The moving party says that the assessment and opinions contained in the plaintiff’s reports are significant and may not be fairly and adequately addressed by the defendant without having an opportunity to obtain an independent defence orthopaedic assessment.
22The plaintiff did not provide significant productions setting out the nature of her claimed ongoing injuries and limitations until August 14, 2023, after the pretrial.
23The plaintiff has not put forward any evidence of prejudice that would not ultimately be compensated for in the event she is successful at trial, including by way of prejudgment interest, if so ordered.
24There is still time for the plaintiff to obtain a rebuttal report before trial, if required.
Position of the Responding Party
25By August 2020, the plaintiff was ready for trial.
26While the medical records contained in the Fifth Supplemental Affidavit of Documents continue to document the plaintiff’s disability and ongoing function, no new medical diagnoses or disability are identified that were not otherwise disclosed in the prior medical records produced to the defendant.
27The plaintiff has never retained an orthopaedic surgeon to give expert opinion evidence in this case. It is quite likely that if Dr. Larouche is permitted to conduct an examination and prepare a report, he will raise issues and opinions that fall outside the scope of Dr. Smith’s expertise.
28A plaintiff should not be put in a position where she does not know the case, she will have to meet two months away from trial with the Christmas holidays intervening.
Discussion
29The court’s authority to order a party to attend an independent medical examination is contained in subsection 105(2) of the Courts of Justice Act. As noted in Bonello v. Taylor, 2010 ONSC 5723, the purpose of the examination is to make available for trial an expert’s report addressing the practitioner’s opinions, diagnosis and prognosis that responds to a report filed by the plaintiff (para. 15). The right to respond to a plaintiff’s expert report is a substantive one.
30The timing of the delivery of a responding expert’s report that typically follows a defence medical examination is governed by rule 53.03 which provides that a responding report must be served no less than 60 days before the pre-trial conference.
31A court may extend the time for service of an expert’s report (rule 53.03(4)).
32Recently, the late delivery of experts’ reports was identified as a systemic problem that needed to be addressed. As a result, rule 53.08 was amended in 2022 to place the burden of proving the appropriateness of an extension of time on the party making the request. The emphasis now is on requiring compliance with rule 53.03 rather than on excusing tardiness (see Agha v. Munroe, 2022 ONSC 2508 at para. 30).
33Since the ordering of a defence medical examination and the subsequent delivery of the examiner’s report are inextricably linked, the admissibility of a late report should be a factor when considering the propriety of ordering a defence medical examination in the first place (see Tyner v. Phillips, 2023 ONSC 5207 at para. 34-35).
34In this case a responding expert’s report was due before the end of April 2023, 60 days before the pretrial conference.
35In my view, the moving party does not have a persuasive case to compel the plaintiff to attend to be examined by a defence medical expert because of the delay in making the request and the amended rule regarding service of the report. The fact is that the moving party took no action to request a defence medical examination for three years following the delivery of Dr. Smith’s report. I agree with the plaintiff that the updating medical records in the Fifth Supplemental Affidavit of Documents do not disclose a new medical diagnosis that justifies ordering a responding medical examination a mere two months before trial.
36The prejudice to the plaintiff is manifest. The moving party’s request comes essentially on the eve of trial when one considers the timeline of this proceeding. The accident in question occurred in December 2017 and the plaintiff served a Trial Record in January, 2019. There is a reasonable possibility that the plaintiff would need to obtain an orthopaedic response beyond the expertise of Dr. Smith. The knock-on effect would put the existing trial date at risk which would create an obvious injustice for the plaintiff. The moving party’s suggestion that increased pre-judgment interest is available if the plaintiff is successful and that this would be adequate compensation for the delay does not fully address the impact of a postponement on the plaintiff.
37The moving party says a responding medical assessment is a “necessity”. I would observe, however, that there is no evidence that the defendant thought that a defence medical report was necessary when Dr. Smith’s report was served. There is no evidence that the moving party thought that a defence medical report was necessary when the plaintiff set the action down for trial. There is no evidence that the defendant thought that a defence medical report was necessary for the pretrial conference. This late-breaking assertion of necessity does not outweigh the potential prejudice to the plaintiff and the risk of delaying the trial.
38A party cannot sit on his or her rights then claim unfairness. Excessive delay, such as in the case here, can create unfairness for the opposing party instead.
39I have reviewed the case authorities proffered by the moving party in support of his position. I note that they tend to focus on the issue of whether a second defence medical examination ought to be ordered, which is different from the situation here and as a result, they are not particularly relevant. Also, they are factually quite different.
Disposition
40For the foregoing reasons, the motion is dismissed.
41I am advised that the parties have an agreement on costs.
Justice M. S. James Date released: November 24, 2023