Court File and Parties

Court File No.: CV-19-00623347-0000 Date: 2024-07-30 Superior Court of Justice - Ontario

Re: Yogeswaran v. Ramos

Before: Associate Justice G. Eckler

Heard: July 30th 2024

Counsel: Sugita Manoharan, appearing for the defendant, moving party Shen Subramaniam, appearing for the plaintiff/responding party

Reasons for Decision

A. Introduction

[1] This is a motion by the defendant, Juan Mina Ramos for an Order that the plaintiff shall forthwith reimburse the defendant for a cancellation fee incurred in the amount of $3,371.92 plus interest due to the plaintiff’s failure to attend the defence medical assessment with physiatrist, Dr. Ryan Williams, on November 1, 2023.

[2] For the reasons that follow, the defendant’s motion shall be granted subject to a reduction of the cancellation fee payable. The plaintiff shall pay to the defendant, the amount of $1,507.42 inclusive of HST for the cancellation fee incurred.

B. Procedural Background

[3] This action arises of a motor vehicle accident which occurred on July 22nd, 2017, in Toronto. As a result of this accident the plaintiff alleges to have sustained inter alia permanent and serious impairments of important physical, mental and psychological functions, pecuniary losses and loss of enjoyment of life.

[4] A statement of claim was issued on July 9th, 2019.

[5] The sole plaintiff, Sajai Yogeswaran (“the plaintiff”) is claiming damages in the amount of $1,000,000.00 plus interest and costs as against the defendant, Juan Mina Ramos (“the defendant”).

[6] The plaintiff’s examination for discovery proceeded on March 31st 2021 and January 19th, 2024.

[7] The defendant’s examination for discovery was completed on October 1st, 2021.

[8] A mediation was held on February 4th, 2022. The mediation failed.

[9] The plaintiff served a trial record on August 23rd, 2022. The pre-trial in this matter is scheduled to proceed on July 28th, 2025 with a trial scheduled for October 2025.

[10] The defendant scheduled a defence medical assessment with physiatrist Dr. Ryan Williams, which was to take place on November 1, 2023.

[11] 38 minutes prior to the scheduled assessment, plaintiff’s counsel sent an email to defence counsel’s office to advise that the plaintiff was unable to attend the appointment due to the plaintiff being ill.

[12] As a result of the last minute cancellation, Dr. Williams charged a cancellation fee of $3,371.92 inclusive of HST and transportation costs.

[13] The defendant paid the fee and sought reimbursement from the plaintiff. The plaintiff refused to pay the missed appointment fee.

[14] The defendant is now seeking reimbursement of this cancellation fee, in its entirety plus interest and costs of this motion.

C. Discussion and Analysis

[15] In Jerry v. Black, 2023 ONSC 603 at paras 13 and 34, (“Jerry v. Black”) the Divisional Court confirmed that the Ontario Superior Court has the jurisdiction to award costs for a missed appointment in circumstances where the court has ordered an independent medical assessment or where there has been a written consent to attend an appointment within Rule 33.

[16] In particular, in Jerry v. Black, supra, paras 20 to 22, the court confirmed that pursuant to Rules 33.08 and 33.07, a party who fails to attend for a medical examination that has been consented to is subject to the same penalty found in Rule 33.07 for failing to comply as a party who has been ordered to attend:

Examination by Consent 33.08

Rules 33.01 to 33.07 apply to a physical or mental examination conducted on the consent in writing of the parties, except to the extent that they are waived by the consent. R.R.O. 1990, Reg. 194, r. 33.08.

The implications of r. 33.08 are that, unless otherwise waived by the terms of the consent, a party who fails to attend for a medical examination that has been consented to in writing is subject to the same penalty found in r. 33.07 for failing to comply as a party who has been ordered to attend.

As a logical extension of treating a consensual independent medical examination like a court-ordered examination, it is consistent to include the ability to order costs as a consequence for non-attendance, depending on the circumstances of the case. It would also respond to the underlying policy aims of costs: it would encourage consents in the appropriate cases and reduce the costs of unnecessary motions. The ability to order costs for a “no-show” gives the court a practical tool to respond to those who might wish to unfairly add to the opposing party’s costs.

[17] After having reviewed the relevant body of caselaw, the Divisional Court in Jerry v. Black, supra, para 33, outlined the following helpful guidelines for the Court to consider on a motion where reimbursement of a cancellation fee following a failure to attend a medical assessment/examination is being sought:

1. The discretion exercised by the Court is highly fact specific;

2. There are a variety of approaches taken; and

3. Where judicial officers have limited their discretion, it has been in the context of unilateral appointments, without either written consent or court order, thus not being constituted under the Rule 33 regime.

[18] Having regard to these guidelines, it is also appropriate to consider the following factors on a motion where reimbursement of a cancellation fee is being sought in the context of a failure to attend at a scheduled medical-legal assessment: (Jerry v. Black, supra, Armocida et al. v. Santelli et al., [2003] O.J. No. 3199, Chapell v. Marshall Estate, 2001 CarswellOnt 2731)

1. Whether the examination was properly constituted under Rule 33 - factors to consider include if the notice of the appointment was timely, clear and reasonable and whether the opposing party agreed to attend the examination in writing.

2. Whether the cancellation fee was clearly communicated to the opposing party in writing;

3. The stated reason for the cancellation and the timing of the cancellation;

4. The reasonableness of the amount of the cancellation fee charged;

[19] I will now consider the factors outlined above.

Was the Examination Properly Constituted Under Rule 33?

[20] On June 14th, 2023, the defendant wrote to plaintiff’s counsel and requested the plaintiff’s availability to attend a defence medical assessment with Dr. Williams. Various dates in November 2023 were proposed. A follow-up request was sent on June 20th, 2023.

[21] On June 20th 2023, plaintiff’s counsel’s office confirmed that the plaintiff was available on November 1st 2023 and November 8th 2023 and transportation was requested to be arranged.

[22] On June 23rd, 2023, counsel for the defendant wrote to plaintiff’s counsel to confirm that the defence medical assessment with physiatrist, Dr. Ryan Williams had been scheduled to proceed on November 1st, 2023 from 10 am to 1 pm. The letter confirming the appointment also indicated that if the plaintiff failed to attend and failed to provide sufficient notice, a cancellation fee would be incurred.

[23] Based on the evidence in the record before me, I find that the defence medical examination was properly constituted, on consent, pursuant to Rule 33.

Whether the Cancellation Fee was Clearly Communicated to the Opposing Party in Writing

[24] The June 23rd, 2023 letter from defence counsel to plaintiff’s counsel confirming the November 1st, 2023 appointment with Dr. Williams also indicated that if the plaintiff failed to attend the appointment and failed to provide sufficient notice, a cancellation fee would be incurred.

[25] I find therefore that the possibility of a cancellation fee was clearly communicated to the opposing party in writing. However, it should be highlighted that the amount of the cancellation fee was not included in the correspondence, nor did plaintiff’s counsel request that information when the appointment was scheduled. Failure to specify the amount of a cancellation fee in the scheduling letter does not mean that a reasonable fee should not be assessed to a party that fails to attend a scheduled assessment. (Jerry v. Black, supra, at para 36)

The stated reason for the cancellation and the timing of the cancellation

[26] On October 31, 2023, Ms. Stoneburgh, a paralegal from defence counsel’s office wrote to the Plaintiff’s law firm, Longo Lawyers, stating that Rapid City Transportation had been unable to reach the Plaintiff, to confirm a pick-up time, and had left two voicemails. Ms. Stoneburgh requested that Ms. Paterno, a legal assistant at plaintiff’s counsel office contact the Plaintiff and ask him to contact Rapid City Transportation.

[27] On October 31, 2023, Ms. Paterno confirmed that she would reach out to the Plaintiff. Ms. Stoneburgh followed up on October 31st, 2023 at 12:25pm, 3:05pm and 3:18pm.

[28] On November 1, 2023 (the date of the scheduled defence medical assessment), at 9:12 a.m., Ms. Stoneburgh wrote to Plaintiff’s counsel, advising that Rapid City transportation was at the Plaintiff’s home, but no one was answering the door or phone.

[29] On November 1, 2023, at 9:20 a.m., defence counsel’s office wrote to Plaintiff’s counsel, stating that the assessment was supposed to take place at 10:00 a.m. that day but that the taxi company tasked with picking up the plaintiff had advised defence counsel’s office that no one was answering the door at the plaintiff’s home or answering the phone.

[30] On November 1st, 2023 at 9:22 a.m., thirty-eight minutes prior to the scheduled assessment, Longo Lawyers wrote to defence counsel’s office to advise that their client was sick and would not be able to attend the scheduled examination. The email dated November 1st, 2023 sent at 9:22 am reads as follows:

Good morning, Our client is sick and will not be able to attend.

[31] Shane Henry, a lawyer with the plaintiff’s law firm, filed an affidavit in response to this motion.

[32] Mr. Henry’s evidence is that on October 31st, 2023, his office was advised by their client that he would have to reschedule the defence medical appointment due to an increase in the severity of his injury symptoms which caused him to miss a week of work from October 30th 2023 to November 6th, 2023.

[33] Mr. Henry has attached a medical note dated July 24th, 2024, from One-Stop Medical Centre, (Dr. Thomas Van) as evidence of the plaintiff’s condition on October 30th 2023 and November 1st 2023. Dr. Van’s note states:

This patient informed [sic] was unable to work from October 30th, 2023 to November 6th 2023 due to a medical reason. He was seen [sic] me in February 2024 for neck and back pain. Signed on July 24th, 2024.

[34] The doctor’s note is dated July 24th, 2024 which is many months after the plaintiff failed to attend at the scheduled defence medical assessment on November 1st, 2023. There is no evidence that Dr. Van saw or examined the plaintiff during the week when he alleges that he was sick. Moreover, there is no evidence from the employer confirming that the plaintiff was off work during this week.

[35] Mr. Henry offers no explanation as to why defence counsel was only advised of the cancellation 48 minutes prior to the scheduled assessment as opposed to on October 31st 2023 when his office was informed of the client’s illness.

[36] I find that there is a lack of evidence supporting the plaintiff’s reason for not being able to attend at the defence medical assessment. The doctor’s note is of little evidentiary value as the note only indicates that the plaintiff advised the doctor that he was sick during the week of October 30th 2023. The doctor did not examine the plaintiff on October 30th 2023 or at any time during the week that the plaintiff was alleged to have been sick. The doctor’s note was also prepared in July of 2024, after this motion date was scheduled and almost nine months after the failed attendance at the scheduled assessment.

[37] Moreover, in the record before me, there is no note from the employer confirming that the plaintiff was off work from October 30th 2023 for a one week period. There is no explanation in the record before me in terms of why a note from the employer could not be obtained.

[38] The notice to defence counsel advising that the plaintiff would not attend at the defence medical assessment could not have been more last minute in that notice was provided 38 minutes prior to the scheduled assessment.

The reasonableness of the amount of the cancellation fee charged

[39] On November 21, 2023, AssessMed sent a cancellation invoice to defence counsel totalling $3,371.92 and noted that the due date would be 30 days from the date sent. After the 30 days, 2% of interest per month would be added to the outstanding balance.

[40] On November 22nd, 2023, defence counsel wrote to plaintiff’s counsel enclosing the invoice and requesting immediate payment. In this same letter a further defence medical assessment was arranged with Dr. Williams which was scheduled to proceed on January 31st, 2024 from 10 am to 1 pm. The plaintiff did attend at this January 31st 2024 assessment.

[41] In Jerry, supra at para 40, the Divisional Court reviewed various cases where cancellation fees were being sought to be paid after missed appointments. The Court noted that a cancellation fee for a full day medical-legal appointment that falls between $1,000 to $2,000 is not unreasonable. There was no mention of a transportation fee being included in these amounts.

[42] In this case, the assessment was scheduled for a half day. However, the cancellation fee also included a transportation fee of $134.00 plus HST as the plaintiff requested transportation services to attend at the appointment.

[43] There was no evidence in the record before me in terms of how much Dr. Williams was going to charge for his assessment of the plaintiff on November 1st, 2023 or what he ultimately charged for the completed assessment which proceeded on January 31st, 2024. There is some evidence in the record before me that on average a fully completed medical assessment and final reports typically costs between $3,000 and $5,000. However, some experts charge less than this and some charge more.

[44] In advance of the appointment, the plaintiff was advised about the cancellation fee which would apply for not attending the scheduled assessment. However, the plaintiff was not provided with particulars of the amount of the cancellation fee or how many days the appointment needed to be cancelled in advance of the appointment in order not to incur the cancellation fee.

[45] The physiatry assessment with Dr. Williams was scheduled for a half day. Given that the amount of the cancellation fee was not communicated to the plaintiff in advance of the assessment and in light of the fact that there is no evidence in the record before me to allow the Court to determine what if any percentage of the actual fee charged for the assessment is being sought by way of the cancellation fee, I find that the cancellation fee of $3,371.92 for a missed half day physiatry assessment is excessive in the circumstances of this case and beyond the range of reasonableness.

D. Conclusion

[46] Having regard to all of the factors considered above, I find that it is fair and reasonable that the plaintiff pay a reasonable amount to reimburse the defendant for the cancellation fee which was required to be paid due to the plaintiff’s last minute cancellation of the defence medical assessment which was scheduled with Dr. Williams on November 1st 2023.

[47] The stated reason for the last minute cancellation is that the plaintiff was sick. However, the only medical evidence in support of this illness is a doctor’s note written almost eight months after the missed appointment which note simply states that the plaintiff advised the doctor that he was sick during the week of October 30th to November 6th 2023 and unable to work. There is no medical note which is contemporaneous with the plaintiff’s stated days of illness nor is there a note from the employer confirming that the plaintiff was off from work due to illness from October 30th 2023 to November 6th, 2023.

[48] Without a doubt, people do get sick and appointments do sometimes get missed for one reason or another. In this case, based on all of the evidence, I find that it would not be reasonable or just for the defendant to have to fully incur the cancellation fee. The assessment was scheduled and confirmed and the plaintiff was aware that a cancellation fee could be incurred for missing the scheduled assessment.

[49] The appointment was cancelled less than an hour prior to the assessment and the stated reason for the plaintiff missing the appointment is not well supported by the evidence in the record before me.

[50] However, I do accept the plaintiff’s argument that the cancellation fee appears to be excessive under the circumstances.

[51] In this case, the Assessmed invoice sent to defence counsel on November 21st 2023, with respect to the cancellation fee was in the total amount of $3,371.92. Broken down, Dr. Williams’ cancellation fee was $2,850.00 plus HST and the transportation cancellation fee was $134.00 plus HST.

[52] Regarding the amount of the cancellation fee, in order for the full cancellation fee to be paid, there must be some evidence that the cancellation fee is reasonable having regard to factors such as, but not limited to, the type of assessment, the length of the assessment, the total amount that would have been charged had the assessment not been cancelled, and the relevant caselaw. (Jerry, supra, at para 40)

[53] While the letter sent to plaintiff’s counsel from defence counsel confirming the defence medical appointment did warn of a cancellation fee being charged in the event that the appointment was missed, there was no confirmation of the amount of the cancellation fee or the timing of when the cancellation fee would be applied. Moreover, there is no evidence in the record before me in terms of what percentage, if any, that the cancellation fee represents as compared to the total fee charged for the complete assessment. The cancellation fee being sought in this case is for a higher amount than what Courts have typically found to be reasonable amounts for cancellation fees. In my view, all of these considerations taken together, militate against a finding that the full cancellation fee ought to be paid by the plaintiff.

[54] Under the circumstances, I find that it is fair and reasonable that the plaintiff shall pay a cancellation fee in the total amount of $1507.42.00 inclusive of HST. This figure is comprised of a cancellation fee of $1200.00, transportation fee of $134.00 plus HST on those amounts of $173.42 for a total cancellation fee of $1507.42.

[55] The general principles governing the fixing of costs are well known. Section 131 of the Courts of Justice Act establishes a broad discretion for the Court in awarding costs. Rule 57.01 of the Rules of Civil Procedure sets out a list of factors which can be taken into account in determining the amount of costs. The overarching policy is to fix an amount that is fair, reasonable, proportionate, and within the parties' reasonable expectations: Boucher v. Public Accountants of Ontario.

[56] After reviewing the parties’ Costs Outlines and upon hearing the submissions of counsel, I find that it is fair and reasonable and within the expectation of the parties that costs in the amount of $1500.00 inclusive of HST shall be payable by the plaintiff to the defendant within 60 days.

[57] The moving party was seeking costs of $3,304.12 on a partial indemnity basis. The moving party, while successful on this motion, did not succeed fully given that the amount awarded for the cancellation fee was less than half of the amount requested. Accordingly, the costs awarded are slightly less than half of the amount requested by the moving party.

[58] Order to go as follows:

1. The moving party’s motion is granted. The plaintiff shall partially reimburse the defendant $1507.42, inclusive of interest and HST, for the cancellation fee incurred within 60 days.

2. The plaintiff shall pay to the defendant costs of this motion in the amount of $1500.00 inclusive of HST within 60 days.

DATE: July 30th 2024 ASSOCIATE JUSTICE G. ECKLER