The defendants appealed a Master's order that struck out one of two defence neuropsychological assessments of the plaintiff.
The Master had varied his original order allowing two assessments after discovering the defendants had entered into an undisclosed settlement agreement, reasoning they were no longer adverse in interest.
The Superior Court allowed the appeal, finding the Master erred in law.
The court held that the defendants remained adverse in interest despite the settlement, and that adversity is not a strict prerequisite for multiple defence medicals under section 105 of the Courts of Justice Act if fairness requires it.
Both assessments were permitted, but the defendants were ordered to pay full indemnity costs and fund an additional assessment for the plaintiff as a sanction for failing to disclose the agreement and breaching the examination protocol.