Court File and Parties
Court File No.: CV-18-26644 Date: 2025-08-01 Ontario Superior Court of Justice
Between:
Erik Lindsay Belanger and Lori Ann Belanger – Plaintiffs
– and –
Avalon & Tahoe MG. Inc., Yamaha Motor Corporation, U.S.A., Yamaha Motor Canada Ltd., Yamaha Motor Co. Ltd., PW Brands LLC, Tilbury Auto Sales and RV Inc., John Doe Corporations, Lindsay Belanger and Adam Esipu – Defendants
Counsel
A. Christiaen, for the Plaintiffs
D. Campbell, for the Defendants, Yamaha Motor Corporation, U.S.A., Yamaha Motor Canada Ltd. and Yamaha Motor Co. Ltd.
A. Scott, for the Defendant, PW Brands LLC
P. Festeryga, for the Defendant, Adam Esipu
Hearing
Heard: July 21, 2025
Reasons for Decision on Motion
HORVAT J.:
Introduction
[1] The defendants bring a motion for an order requiring the plaintiff, Erik Belanger, to attend a second in-person independent medical examination ("IME"). What makes this motion novel, is that the defendants seek a second IME because they retained a replacement expert given that their initial expert failed to deliver a report, including a draft report, and has ceased communicating with them. The defendants seek a second IME with their replacement expert.
[2] On July 25, 2025, I made the following order, with reasons to follow:
Erik Belanger shall attend an in-person independent medical examination ("IME") with Dr. Richard Kaminker at his office located at 2863 Ellesmere Rd., Scarborough, Ontario, M1E 5E9 on a mutually convenient date;
Mr. Belanger shall be reimbursed by the defendants for all incidental expenses, including any travel expenses (which include hotel expenses), loss of income, and childcare expenses; and
The costs of this motion shall be in the cause.
Facts
[3] On May 16, 2024, the defendants jointly retained Dr. Steven M. Dilkas to conduct an IME of Mr. Belanger and prepare a report. The defendants retained two other experts who both require Dr. Dilkas' report to complete their reports.
[4] On June 26, 2024, Dr. Dilkas completed an IME of Mr. Belanger. Mr. Belanger voluntarily travelled eight hours round trip to attend the appointment and incurred a half-day loss of income.
[5] On August 19, 2024, the defendants sought an update from Dr. Dilkas on his report and received an out of office alert advising that Dr. Dilkas was out of the office until September 10, 2024. From September 11, 2024 until January 2, 2025, the defendants sent numerous communications to Dr. Dilkas that either went unanswered or were answered by his staff with excuses for Dr. Dilkas absences. The last communication from Dr. Dilkas' office to the defendants came on November 5, 2024, Dr. Dilkas' office advised that he was out of the country on a business trip.
[6] Dr. Dilkas did not provide a draft report to the defendants, and no discussions occurred between the defendants and Dr. Dilkas concerning Mr. Belanger's IME. No information or opinions were provided to the defendants.
[7] In January 2025, in material filed for a pre-trial conference, the defendants raised their difficulty in obtaining a report and a response from their expert. The defendants anticipated bringing a Rule 33.06 motion to compel production of Dr. Dilkas' outstanding report.
[8] On February 10, 2025, the defendants advised Mr. Belanger's lawyers that Dr. Dilkas' report remained outstanding and sought consent for a second IME with a new doctor for Mr. Belanger. Mr. Belanger refused.
[9] In early March 2025, the defendants again sought Mr. Belanger's consent to a second IME and detailed why a replacement IME was necessary. Mr. Belanger again refused to consent.
[10] In April 2025, the lawyers for the plaintiffs offered to assist the defendants in obtaining a report by writing to Dr. Dilkas. The lawyers for the defendants responded that consent to communicate with Dr. Dilkas was not granted and that in the view of the lawyers for the defendants, there was a breakdown in the relationship between the defendants and Dr. Dilkas. The lawyers for the defendants again confirmed that "Dr. Dilkas has not produced any draft reports, and we have not otherwise discussed Dr. Dilkas' assessment of Mr. Belanger."
[11] On May 8, 2025, the defendants advised the lawyers for the plaintiffs that they jointly retained a new medical expert, Dr. Kaminker and proposed several dates for a second IME. The lawyers for the plaintiffs sought Dr. Kaminker's CV which was provided by the defendants.
[12] On May 15, 2025, the lawyers for the plaintiffs advised the defendants that they should proceed with their motion to compel a replacement IME.
[13] On May 21, 2025, the defendants brought this motion.
[14] This action is on the March 30, 2026 long trial sittings.
Law and Analysis
[15] There is no dispute that Mr. Belanger's physical condition is at issue in this action: section 105(2) of the Courts of Justice Act. Under section 105(4) of the Courts of Justice Act, the court may order further physical or mental examinations. Rule 33.02(2) of the Rules of Civil Procedure, provides that "the court may order a second examination or further examinations on such terms respecting costs and other matters as are just."
[16] The right to respond to a plaintiff's expert report is a substantive one, involving principles of trial fairness: Nasir v. Kochmanski, 2012 ONSC 4088, citing Rysyk v. Booth Fisheries Canadian Co. Ltd., [1971] 1 O.R. 123 (C.A.) at para. 8; Chandrababu v. Tharmalingham, 2021 ONSC 4885 at paras. 20-21; Bonello v. Taylor, 2010 ONSC 5723 at paras. 15 and 22.
[17] The moving party bears the burden of establishing that the request for a second or subsequent IME is legitimate, necessary, and not merely tactical. Whether a further examination is warranted and legitimate is an exercise of discretion that depends on the specific facts and equities of each case. Sufficient evidence to support the need for a further IME must be filed with the court. Determining whether the evidence is sufficient remains an exercise of judicial discretion. Whether a further IME imposes an undue burden on the plaintiff is a factor for the court to consider Bonello at paras. 16, 16 (i), (v), (vi) and (vii).
[18] The defendants argue that they have met the legitimate and necessary factors in Bonello given that no report has been received from Dr. Dilkas and he has ceased communicating with the defendants. The plaintiffs take the position that the defendants have not met the legitimate and necessary test in Bonello because they have not adduced sufficient evidence explaining why Dr. Dilkas cannot complete a report. There is no evidence of, and the plaintiffs did not argue, any attempt to delay the trial or any tactical reason for the request for a second IME by the defendants.
[19] In my view, the affidavit evidence of two of the defence lawyers outlining the various attempts that were made by the defence team to contact Dr. Dilkas is sufficient to support the proposition that Dr. Dilkas has stopped communicating with the defence team and that no report is forthcoming. It was Dr. Dilkas who ceased responding to defence counsel without explanation. Every case must be determined on its own facts, and in my view, the defendants have adduced sufficient evidence explaining why Dr. Dilkas cannot complete a report.
[20] The plaintiffs also argue that the legitimate and necessary factors in Bonello have not been met given that the defendants have other options available to them, such as compelling a report from Dr. Dilkas under Rule 33.06. They say that ordering Mr. Belanger to attend a further IME is contrary to the principles of proportionality and fairness when considered against the refusal by the defendants to bring a motion under Rule 33.06.
[21] Rule 33.06(1) provides that following an IME, "the examining health practitioner shall prepare a written report …" [emphasis added]. The plaintiffs argue that the defendants are required to exhaust all reasonable efforts to obtain an expert report from Dr. Dilkas prior to bringing a motion under Rule 33.02(2) requiring Mr. Belanger to attend a second IME with a new doctor. They argue that this includes bringing a motion pursuant to Rule 33.06 compelling the production of Dr. Dilkas' report. They cite no authority for the proposition that a motion must be brought under Rule 33.06 prior to a motion under Rule 33.02(2).
[22] The plaintiffs rely on Nasir v. Kochmanski, 2013 ONSC 1391 for the proposition that once an IME is conducted, a report is mandated pursuant to Rule 33.06. In that case, the plaintiff was an infant who had an IME with Dr. MacGregor. Dr. MacGregor took the position that because of the nature and circumstances of the assessment, the report would be incomplete and present inaccurate findings. The defendant brought a motion for a second IME with a new doctor. The motion for a second IME of the infant was granted: 2012 ONSC 4088. The defendant refused to produce a written report from Dr. MacGregor and the plaintiff brought the motion under Rule 33.06. Dr. MacGregor was given notice of the motion and provided a letter to defence counsel advising that while she could produce a report, she wished to withdraw from the case. The court ordered Dr. MacGregor to produce a report in any event.
[23] In my view, the decision in Nasir is distinguishable from the present case, primarily on the ground that in Nasir, a second IME was ordered prior to the Rule 33.06 motion. The party being examined was an infant in Nasir and a second IME was ordered despite the burden to the infant. As in Nasir, it remains open to either the defendants or to the plaintiff to bring a motion under Rule 33.06 compelling Dr. Dilkas to produce a report following the second IME. The decision in Nasir does not require the defendants to pursue a Rule 33.06 motion prior to seeking a second IME.
[24] Requiring the defendants to bring a Rule 33.06 motion to satisfy the legitimate and necessary factors in Bonello, in my view, is also not an efficient use of judicial or legal resources. I am mindful of r. 1.04 which requires the Rules to be interpreted in the most just and cost-effective manner and the need for a common sense and practical approach to the interpretation of the Rules.
[25] Finally, the plaintiffs argue that the factors in Bonello are not satisfied because Mr. Belanger will suffer an undue burden should he be required to attend a second IME. In my view, any undue burden on Mr. Belanger can be dealt with monetarily. Requiring Mr. Belanger to attend the IME will not impact the trial date. Any potential prejudice to Mr. Belanger is ameliorated by the defendants' offer and agreement to reimburse Mr. Belanger's expenses for attending the second IME.
[26] Balancing the parties' rights, the actual prejudice to the defendants outweighs the potential prejudice to the plaintiffs. To deny the defendants an IME with their new expert would result in prejudice by denying them the opportunity to either meet the plaintiffs' case, or by forcing them to compel a report from an expert who is not interested in participating in the trial process. There also exist potential prejudicial bias issues that may arise if the defendants are required to rely on a report obtained by court order compelling Dr. Dilkas to produce a report.
[27] Considering the relevant factors in Bonello, and the circumstances of this case, I am satisfied that the defendants seek a legitimate second IME of Mr. Belanger. Considerations of trial fairness when balanced against imposing an undue burden on Mr. Belanger to undergo a second IME must be weighed. In my view, they favour ordering a second IME as sought by the defendants.
[28] The costs of this motion shall be in the cause.
Order
[29] For these reasons, I make the following order:
Erik Belanger shall attend an in-person independent medical examination ("IME") with Dr. Richard Kaminker at his office located at 2863 Ellesmere Rd., Scarborough, Ontario, M1E 5E9 on a mutually convenient date;
Mr. Belanger shall be reimbursed by the defendants for all incidental expenses, including any travel expenses (which include hotel expenses), loss of income, and childcare expenses; and
The costs of this motion shall be in the cause.
Released: August 1, 2025
Jacqueline A. Horvat Justice