Written By: Brandon Pedersen and Lori Khaouli, Student-at-Law
OVERVIEW OF THE CASE
In Mitsis v. Holy Trinity Greek Orthodox Community of London, 2021 ONSC 5719, the defendant moved for an Order compelling the plaintiff to attend a second medical examination pursuant to section 105 of the Courts of Justice Act and Rule 33.02 of the Rules of Civil Procedure, and an adjournment of the pre-trial conference to allow for service of the subsequent expert report.
The plaintiff alleged that she had sustained both a neck and right arm fracture as a result of a slip and fall on the defendant’s premises in December 2016. Following the completion of the examinations for discovery, the defendant arranged a physiatry medical examination of the plaintiff; a report followed and was served.
In June 2021, 90 days prior to the pre-trial conference, the plaintiff served an expert report from an orthopedic surgeon. The report addressed the plaintiff’s recovery and functional limitations related to her fractured right proximal humerus. In response, the defendant scheduled a second medical examination for the plaintiff with a different orthopedic surgeon to obtain an opinion to counter the plaintiff’s report. The plaintiff refused to attend a further examination, resulting in the defendant’s motion.
THE TEST FOR FURTHER MEDICAL EXAMINATIONS
The Court cited Bonello v. Taylor, 2010 ONSC 5723 as the applicable test for determining when a further examination may be ordered. In Bonello, the overriding factor is trial fairness:
 Although the determination of whether to order a second or further examination by a health practitioner must turn on the specific facts and equities of a case, a body of case-law has developed around when a second or further examination may be ordered under CJA s. 105 and Rule 33. The leading principles can be summarized as follows:
(i) The party seeking the order for a further examination must demonstrate that the assessment is warranted and legitimate, and not made with a view to delaying trial, causing prejudice to the other party, or simply corroborating an existing medical opinion;
(ii) A request may be legitimate where there is evidence that (i) the party’s condition has changed or deteriorated since the date of a previous examination, (ii) a more current assessment of the plaintiff’s condition is required for trial, (iii) the plaintiff served specialist reports from new assessors after the defendants had conducted their medical assessments, or (iv) some of the party’s injuries fall outside the expertise of the first examining health practitioner;
(iii) Ordering further examinations may be just where they are necessary to enable the defendant fairly to investigate and call reasonable responding evidence at trial;
(iv) Where the request is for the examination of the plaintiff by a person who is not a health practitioner, such as a rehabilitation expert, the defendant must demonstrate that the proposed examination is necessary as a diagnostic aid to the health practitioner who is conducting the defence medical examination;
(v) A request for a second examination must be supported by sufficient evidence to persuade a court of the need for the further examination. What constitutes sufficient evidence will vary from case to case.
(vi) While fairness, or “creating a level playing field”, may constitute a legitimate reason for ordering a second examination, someone with knowledge of the evidence in the case must provide evidence of unfairness for the court to consider; and
(vii) A court should consider whether the request for a further examination would impose an undue burden on the plaintiff in light of the number of examinations already conducted of her by the defence.
THE COURT’S ANALYSIS
The defendant argued that an examination by a physiatrist was initially conducted because the plaintiff’s main concern was that of chronic pain. The defendant’s physiatry report focused on the plaintiff’s chronic pain and its impact on her day-to-day living. The plaintiff’s subsequent orthopaedic report ultimately focused on the plaintiff’s recovery and functional limitations as it related to her fractured right proximal humerus. The plaintiff argued that if she was required to attend a further examination, she would be prejudiced due to the further delay of the trial.
The Court considered the Bonello factors, stating that while there was no evidence that the defendant was attempting to delay the trial or cause prejudice to the plaintiff, it appeared that the defendant was trying to repair the expert opinion given by the physiatrist. The Court explained that there was nothing unfair in the circumstances in requiring the defendant to base its case on the physiatrist’s report. The Court agreed that there was no evidence that more assessments of the plaintiff’s condition was required for a fair trial.
The defendant’s motion for an Order to compel the plaintiff to attend a second medical examination was dismissed. The Court was satisfied that the defendant must be held to their choice to proceed with a first examination of the plaintiff by a physiatrist instead of an orthopedic surgeon. The defendant had the opportunity to wait until the plaintiff served their first report and make their decision based on the specialty of the plaintiff’s report that was served.
WHY THIS MATTERS
While the Court will consider each case on a case-by-case basis, this decision serves as a reminder that if the defence decides to obtain an expert medical opinion prior to the plaintiff doing so, it may be unable to obtain a further opinion to rebut or counter the findings of a subsequently served plaintiff report.