Superior Court of Justice – Ontario

Court File No.: CV-19-623962
Date: July 25, 2025

Between:
Carrie Robinson
Plaintiff

and

Thet Htike, Rice Engineering & Operating Ltd. and Ryder Truck Rental Canada Ltd.
Defendants

Before: Associate Justice C. Wiebe

Counsel:
Leeza Peece for Thet Htike, Rice Engineering & Operating Ltd. and Ryder Truck Rental Canada Ltd.
Ashu Ismail for Carrie Robinson.

Heard: July 24, 2025

Reasons for Decision

Introduction

[1] The defendants bring this motion seeking medical examinations. By the time the motion was argued, it boiled down to a motion seeking an order that the plaintiff undergo two medical examinations arranged by the defendants, one by orthopedic surgeon, Dr. Paul Marks, on a date to be arranged in October, 2025, and the other by neurologist, Dr. Charles Kassardijan, for an appointment scheduled for August 11, 2025. This action is scheduled for a pretrial conference on February 24, 2026 and a trial during the sittings in June, 2026. The defendants also seek repayment of a cancellation fee of $3,000 on account of a very late cancellation by the plaintiff of an appointment with Dr. Marks on February 6, 2025.

[2] There is no dispute that the plaintiff suffered a significant personal injury as a result of an accident on March 1, 2019. She is a catastrophically impaired plaintiff. Her counsel described the injuries as stemming from a “crushed pelvis” due to being run over by a truck. There is no dispute that the plaintiff’s orthopedic and neurological injuries are in issue in this case. The issue on this motion boils down to this: whether the requested medical examinations are necessary to ensure trial fairness for the defendants or whether they are duplicative of the tests and conclusions reached by the defendant’s chronic pain physician, Dr. Michael Boucher, and therefore unnecessary.

Legal Framework

[3] Section 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) and Rule 33.01 of the Rules of Civil Procedure empower the court to order such physical and mental examinations where a party has put his or her physical and mental conditions in issue. The leading decision on the governing test to be applied is that of Justice D. M. Brown in Bonello v. Taylor, 2010 ONSC 5723. The key part of the decision as it pertains to this motion is in paragraph 16(iii) where His Honour discusses the issue of “matching reports.” The defendants rely on the issue of “matching reports.” His Honour stated the following: “. . . 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 loath to deny the defence a fair opportunity to respond with expert evidence from the same specialty based on an assessment of the plaintiff.”

[4] Other parts of the test described in paragraph 16 of Bonello are relevant as well: the examination should not be for the purpose of corroborating an existing medical opinion (i.e. there must not be duplicative examinations); there must be “sufficient evidence to persuade a court of the need for the further examination” with such evidence being either an affidavit from an examining physician or medical reports attached to a non-physician’s affidavit; and the court must consider whether the requested examinations will impose an undue burden on the plaintiff in light of the number of examinations conducted of her by the defence.

Evidence and Submissions

[5] The evidence proffered by the defendants is not an affidavit (or even a letter) from a physician, such as Drs. Boucher, Marks and Kassardijan, calling for the medical assessments being sought. There is no affidavit or letter from Drs. Marks and Kassardijan explaining what the requested tests will entail and the purpose of these assessments. The evidence is two affidavits sworn by a law clerk attaching medical reports and correspondence. The plaintiff responded with two affidavits of a law clerk attaching medical reports.

[6] This evidence shows that the plaintiff obtained and served a series of medical reports for her case. The relevant reports for this motion are the reports of the treating orthopedic surgeon, Dr. Richard Jenkinson, dated September 17, 2020 and August 19, 2024, the reports of the treating neurologist, Dr. Ross Roussev, dated October 19, 2019 and September 1, 2020, and the report of the Rule 53 expert, chronic pain specialist, Dr. Mark Friedlander, dated March 8, 2024. Dr. Jenkinson and Dr. Roussev are participant experts but served Acknowledgments of Expert’s Duty because they also opine on the issues of threshold and future work.

[7] The report of Dr. Boucher is dated June 20, 2025 and concerns an assessment he made of Ms. Robinson on March 12, 2025. The body of the report is 66 pages and the whole report is 285 pages long. It is called a “Chronic Pain Medical-Legal Assessment.” In reviewing his qualifications, Dr. Boucher describes himself primarily as a chronic pain specialist. He conducted tests and reviewed the plaintiff’s considerable medical history in detail. He described the plaintiff’s injuries as a “constellation of orthopaedic, neurological, visceral, and psychological injuries in the indexed collision.” He confirmed that the plaintiff met the threshold of having a serious impairment of an important physical function. He concluded with an opinion as to the nature and severity of the injuries and whether they all relate to the collision.

[8] Ms. Peece argued that Dr. Boucher’s report was a “match” for the report of Dr. Friedlander, the plaintiff’s chronic pain specialist. She pointed out that Dr. Boucher conducted the same kinds of tests on the plaintiff that Dr. Friedlander did. Dr. Boucher examined all aspects of the plaintiff’s body to determine pain levels and range of motion. He conducted various questionnaires and functional tests. According to his report, Dr. Friedlander indeed did many of the same things, namely a whole-body review of pain levels and motion range. He commented on neurological and orthopedic issues. He provided an opinion as to the nature and severity of the injuries and whether they relate to the accident. This point has merit.

[9] Ms. Ismail argued that Dr. Boucher’s report was more of a “match” of the reports of Drs. Jenkinson and Roussev, thereby rendering the requested assessments by Drs. Marks and Kassardijan duplicative. She pointed out that Dr. Boucher reviewed the orthopedic and neurological history of the plaintiff as thoroughly as he did the other reports of the other injuries. She pointed out that Dr. Boucher conducted some neurological and orthopedic tests himself and came to conclusions on those issues.

Analysis

[10] Having reviewed the Jenkinson and Roussev reports, I have come to agree, however, with Ms. Peece, namely that these reports provide a quite different perspective of the orthopedic and neurological issues than does the Boucher report. Most importantly, after reviewing in detail the orthopedic injuries and treatment given to Ms. Robinson, Dr. Jenkinson states on page 5 of his August 19, 2024 report that her limitations are permanent: “Unfortunately future surgeries such as hip replacement are not an option given her injuries are not in the hip joint, but pelvic ring for which there is limited future reconstructive options that would have any chance of her improving symptoms.” Dr. Boucher, a chronic pain specialist, did not deal with those issues, and the defendants in fairness should have an opportunity to explore them with their own orthopedic surgeon.

[11] The Roussev report indicates that Dr. Roussev conducted different tests on Ms. Robinson than did Dr. Boucher. Dr. Roussev conducted electrophysiological studies including a motor nerve conduction study, a sensory nerve conduction study and a needle electrode examination. He had Ms. Robinson undergo an MRI examination, CT scans and x-rays. Dr. Boucher administered a visual examination of the plaintiff. The defendants are entitled in fairness to have a neurologist of their choice conduct the neurological examination that “matches” that of Dr. Roussev.

[12] Ms. Ismail argued that the defendants’ evidence did not meet the requirements of this motion. I disagree. While it would have been helpful to have affidavits or letters from Drs. Marks and Kassadijan specifying as to what they plan to do and the purpose and utility of doing that, the Bonello decision makes it clear that medical reports attached to affidavits from non-physicians will suffice. I have decided that this suffices in this case, as I can glean the necessary information from the filed reports to make my decision.

[13] Ms. Ismail complained that the requested medical examinations will be burdensome on Ms. Robinson. I sympathize with the plaintiff given her injuries. But she has undergone only two defence medical examinations to date, an examination of a defence chronic pain specialist and a defence psychiatrist. She has agreed to an assessment by a defence occupational therapist. Given the number of medical reports the plaintiff has produced and the gravity of the injuries in issue, the requested assessments are not, in my view, burdensome. The question of trial fairness is paramount here.

[14] Ms. Ismail complained that the defendants waited too long to get these assessments. I agree with Ms. Peece in her response when she said that waiting this long is deliberate as the defendants want to obtain the most recent view of the plaintiff’s condition prior to trial. That is an acceptable explanation.

Conclusion and Orders

[15] Therefore, I have concluded that, despite the limited evidence and the absence of an affidavit or even letter from a physician, the requested medical assessments must take place as they will not be duplicative. I base this conclusion on my review of the key medical reports. So ordered.

[16] As for the $3,000 cancellation fee, I am not prepared to order that the plaintiff pay this. Ms. Robinson suffers from severe chronic pain, probably due in large part to the accident. As Ms. Ismail pointed out, the plaintiff’s pain can change radically in a short period of time. That is what apparently happened on the morning of February 6, 2025, the date of the appointment with Dr. Marks. I accept that explanation and will not require that Ms. Robinson pay the cancellation fee.

[17] Counsel advised that the parties are agreed that the successful party in this motion should be awarded $3,000 for the costs of this motion. The defendants were the successful party. Therefore, I order that the plaintiff pay the defendants $3,000 for the costs of this motion in thirty (30) days.

Date: July 25, 2025

Associate Justice C. Wiebe