CITATION: Goodall v. Broughton et al., 2026 ONSC 4762
COURT FILE NO.: CV-24-00000034-0000 (St. Thomas)
DATE: 20260817
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jeffery Albert Goodall
Plaintiff
– and –
Joshua Adam Broughton and Kelly Lee Ann Putnam
Defendants
W. Shahatto for Anna Szczurko, for the Plaintiff
Luke Switzer for David J. Strangio, for the Defendants
HEARD: August 10, 2026
REASONS ON MOTION
[1] On April 10, 2023, the plaintiff, Jeffery Albert Goodall, was injured when he was struck by a motor vehicle. In support of his action against the defendants, he retained physiatrist, Dr. Dinesh Kumbhare, to perform a medical examination. Dr. Kumbhare completed that examination and prepared a report. That report was disclosed to the defendants’ counsel.
[2] The defendants have now sought the plaintiff’s attendance at two medical examinations. The first is with another physiatrist, Dr. Raymond Zabieliauskas. The second is with a neuropsychologist, Dr. Mark Dowhaniuk.
[3] The plaintiff agrees to the first examination but resists the second. This motion is brought by the defendants to compel his attendance at both.
The Law
[4] Section 105(2) of the Courts of Justice Act, RSO 1990, c. C.43, permits a court to order the physical or mental examination of a party when that party’s physical or mental condition is in issue. Subsection (4) permits a court to order “further” examinations as well.
[5] Rule 33.01 and onward of the Rules of Civil Procedure, RRO 1990, Reg 194, sets out the practical requirements of orders for examinations. A motion must be made on notice, and any resulting order must name the health practitioner who will perform the examination. Rule 33.02(2) reiterates s. 105(4), allowing a court to order a second or further examination on such terms as are just.
[6] It is common ground between the parties that leave of the court is required when more than one medical examination is sought.
Dr. Kumbhare’s Report
[7] In support of their motion, the defendants point to the results of Dr. Kumbhare’s examination. In his report, Dr. Kumbhare summarized the injuries he felt were caused by the collision. These included mid and lower back pain, headache, peripheral neuropathy, and deconditioning syndrome. In addition, and most relevant to this motion, he also noted a mild traumatic brain injury and resulting cognitive impairments. These impairments include difficulties with memory and concentration. The plaintiff requires memory aids and fatigues when he does concentrate. Dr. Kumbhare further opined that the plaintiff also “appears to have issues with respect to anxiety and possibly depression with respect to how his pain impacts on his function.”
[8] Dr. Kumbhare also determined that the plaintiff fit the requirements for diagnosis with post-concussive syndrome. In describing this syndrome at page 7 of the report, he said:
In this regard, an individual’s difficulties from a biopsychosocial context are reviewed from a physical, psychological and cognitive perspective, noting the multiple factors that impacts on concussion syndrome.
[9] It is clear from the report that Dr. Kumbhare found injury that went beyond the physical. He found cognitive and psychological impairment as well. Those deficits have been pleaded in the plaintiff’s claim against the defendants. To follow the wording of Justice Brown in Bonello v. Taylor, 2010 ONSC 5723, at para. 14, there is no question that the plaintiff has put his physical and mental conditions into question.
The Motion
[10] An email from April 9, 2026, sent by defence counsel to plaintiff’s counsel, confirmed receipt of Dr. Kumbhare’s report. A second email, sent one week later, advised plaintiff’s counsel that examinations had been arranged with Dr. Zabieliauskas and Dr. Dowhaniuk.
[11] One week after that, an email from plaintiff’s counsel questioned the reasonableness and necessity of a neuropsychology examination. This started an exchange that ultimately led to this motion.
[12] Counsel for the defendants seeks the neuropsychology examination on the basis of the injuries reported by Dr. Kumbhare. As the injuries claimed extend to neurological and
cognitive issues, an examination by a health practitioner qualified to assess those issues is, he argues, entirely appropriate.
[13] Counsel for the plaintiff argues that a defence examination by a physiatrist is sufficient. That person can offer an opinion on the non-physical injury, just as the plaintiff’s physiatrist has. The plaintiff has not retained a neuropsychologist and does not intend to do so. In the plaintiff’s submission, the defendants have not shown that a neuropsychologist examination is warranted in the circumstances.
[14] In Bonello, supra, Justice Brown set out the relevant principles when a court considers ordering a further examination (see para. 16). The further examination must be warranted and legitimate, and for a proper purpose. It may be warranted where, for example, some of the plaintiff’s injures fall outside the scope of expertise of the first assessor. As well, the burden is on the party seeking the further examination to persuade the court that it is needed. Evidence to meet that burden can vary from case to case but can include reference to existing medical assessments. In the end, the decision to order a further examination is in the discretion of the court.
[15] A court should also consider whether a further examination would impose an undue burden on the plaintiff in the circumstances of the case.
[16] While I have summarized Justice Brown’s list, I have considered all the factors His Honour set out.
[17] I am also guided by the endorsement of Justice Heeney in Moore v. Jacob, 2022 ONSC 10. That case dealt with effectively the same issue and was argued by the same counsel involved in the present case. There, the plaintiff had been assessed by a physiatrist. The defence sought assessments by an orthopedic surgeon and a neuropsychologist. The plaintiff initially opposed both assessments and argued the defendant should seek an assessment by a physiatrist. In argument, that position changed, and it was agreed that the plaintiff would attend one defence assessment, but not both.
[18] As in the present case, the plaintiff alleged both physical and psychological injuries. Justice Heeney reviewed relevant caselaw and said this at para.20:
These cases make it clear that it is the nature of the plaintiff’s injuries that determine the entitlement of the defendant to seek a response from appropriate experts. Where both physical and mental issues are raised by the plaintiff, the defendant should be entitled to retain an expert to respond to each issue.
[19] Counsel for the plaintiff before me has agreed the defendant should be permitted an assessment by a physiatrist. That would, they submit, be sufficient to respond to the issues set out in Dr. Kumbhare’s report. Justice Heeney addressed this point at para.21:
The plaintiff argues that they are relying solely on the report of Dr. Macalcuso, who is a physiatrist, in support of their case, and the defendants could similarly retain a physiatrist of their own to respond. However, it is not open to the plaintiff, or to this court for that matter, to dictate to the defendants how they are to present their case.
[20] I would agree with and accept the words of Justice Heeney, subject to appropriate terms being placed on any further examination to avoid the imposition of an undue burden on the plaintiff.
[21] Given the injuries claimed, it would not be appropriate to limit the defendants to a physiatry assessment. Even relying on Dr. Kumbhare’s own CV, there is some question whether a physiatrist is truly qualified to opine on cognitive or psychological injury in any event.
[22] In my view, the defendants have shown that the two examinations being sought are warranted and necessary. The plaintiff has put his physical and mental condition in issue, and the defendants are entitled to explore his claims with their own assessments. As was the case in Moore, supra, a neuropsychologist may well be more qualified than a physiatrist to assess the cognitive deficits claimed in this action. The defendants are entitled to seek an assessment by a physiatrist related to physical complaints and a neuropsychologist related to mental or cognitive complaints.
Terms
[23] In the correspondence found at Exhibit F of Ms. Szczurko’s affidavit, counsel asked if defence assessments could be carried out in the London area as the plaintiff required assistance when travelling and the distance to and from Mississauga was significant. If Mississauga was not negotiable, counsel asked if accommodation and other expenses would be paid. In a responding email, Mr. Strangio said he expected he could obtain instructions to agree to cover the plaintiff’s expenses. He would not, however, seek those instructions until it was agreed the plaintiff would attend both assessments. That discussion proceeded no further.
[24] If the two defence examinations are scheduled with Dr. Zabieliauskas and Dr. Dowhaniuk in Mississauga, the defendants are ordered to cover reasonable travel expenses related to the plaintiff’s attendances. This will include accommodation, meals, and other reasonable incidental expenses incurred as a result of travel.
Order
[25] Pursuant to s. 105 of the Courts of Justice Act, the plaintiff is ordered to attend for the following medical examinations:
1With Dr. Raymond Zabieliauskas, physiatrist, on October 15, 2026, at 9:00 a.m.; and
2With Dr. Mark Dowhaniuk, neuropsychologist, on November 18, 2026, at 9:00 a.m.
[26] The defendants will cover reasonable travel expenses for the plaintiff and a companion incurred while attending these examinations. As stated above, these will include accommodation, meals, and other reasonable incidental expenses.
[27] I have considered whether to permit the plaintiff to seek his own neuropsychological assessment in advance of the defendants, but counsel has advised there is no intention to do so. The defence assessments can therefore proceed as scheduled.
Costs
[28] The defendants have been successful in this motion. I have received a costs outline setting out their counsel’s fees. Inclusive of HST and disbursements, the costs sought are $3,630.69. This represents the actual costs incurred, i.e. full indemnity.
[29] Rule 57.01 provides assistance in determining how costs should be assessed. The matter was prepared and argued by a fairly junior counsel whose hourly rate was not unreasonable. I also note that no costs are claimed for the involvement of Mr. Strangio, a partner in counsel’s firm who was a party to the correspondence that led to the motion.
[30] The motion itself was not especially complex, though it did necessitate the preparation of facta and supporting affidavits.
[31] With the utmost of respect, it is unclear to me why argument of this motion was necessary given the endorsement of Justice Heeney in Moore, supra. His Honour dealt with nearly identical issues argued by the same counsel involved in this proceeding. Candidly, it ought to have been apparent what the result of this motion was going to be. Moreover, no explanation for why the second examination was unwarranted was offered. The plaintiff’s materials set out the test to be applied but then made arguments similar to those rejected by Justice Heeney. I do not find the plaintiff’s opposition to the motion to rises to the level of impropriety, but a more collaborative approach could probably have been taken in light of Moore.
[32] A point raised by the plaintiff in argument was that there was no reason for the defendants to have cancelled the physiatrist assessment along with the neuropsychologist assessment. I agree. Both parties agreed a defence physiatry assessment was proper. The refusal to attend a neuropsychology assessment was irrelevant to that issue. There was no reason for the defence to cancel the physiatry appointment. Taking what amounts to an all-or-nothing approach also reflects a lack of collaboration.
[33] That said, including the physiatry assessment in this motion did not lengthen or further complicate the matter. Again, while the approach taken by the defence was not ideal, I do not find it rises to the level of impropriety such that it should impact the costs order.
[34] The caselaw is clear that an award of full indemnity costs should only be made in rare circumstances where the conduct of the unsuccessful party is particularly reprehensible and egregious. I can make no such finding here. Recognizing that cost awards are discretionary, I am tempted to award what would be full indemnity simply because the amount claimed is reasonable on its face. But in my view that would be contrary to the limits set out in the caselaw, in particular Chernukhina Estate v. Gurevich [2026], O.J. No. 2109 (Div. Ct.), citing Net Connect Installation Inc. v. Mobile Zone Inc., 2017 ONCA 766.
[35] Balancing the factors set out in Rule 57.01 with the overall reasonableness of the defendants’ cost outline, I award costs to the defendants in the amount of $3,000 inclusive of HST and disbursements. Pursuant to Rule 57.03 this will be payable within 30 days of this ruling.
_____________________________
Scott J. Pratt
Justice
Released: August 17, 2026
CITATION: Goodall v. Broughton et al., 2026 ONSC 4762
COURT FILE NO.: CV-24-00000034-0000 (St. Thomas)
DATE: 20260817
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jeffrey Albert Goodall
Plaintiff
– and –
Joshua Adam Broughton and Kelly Lee Ann Putnam
Defendants
reasons on motion
Pratt J.
Released: August 17, 2026