The issue of how many defence medicals are too many is the subject of a recent Ontario Superior Court decision. In the matter of Rocca and 6131646 Canada Inc. et al, the plaintiff was involved in a motor vehicle accident that resulted in injury. It was noted that the plaintiff had produced three expert medical reports, including a psychiatric report, an orthopaedic report, and a physiatry report authored by Dr. Mailis. The plaintiff had also attended orthopaedic, psychiatry, and neurology defence medicals. The orthopaedic report was authored by Dr. Marks. The defendant sought to have a rebuttal report to the plaintiff’s physiatry report. The defendant brought a motion pursuant to Section 105 of the Courts of Justice Act and Rule 33.02 of the Rules of Civil Procedure for an order compelling the plaintiff to attend a physiatry defence medical. The argument was premised on the imperative of ensuring a fair trial and a determination on the merits, not to mention levelling the playing field all of which warranted an order to allow the defendant an adequate opportunity to meet the plaintiff’s case.
Justice Jolley noted that Dr. Marks had reviewed the physiatry report prepared by Dr. Mailis and had disagreed with most aspects of that report. It was also noted that Dr. Marks had commented extensively on chronic pain in his report. Justice Jolley noted that there was no evidence of any limitations on Dr. Marks’ ability to opine on the issues raised by Dr. Mailis. It was noted that Dr. Marks provided extensive rebuttal to the Mailis report. Justice Jolley indicated that there was insufficient evidence to conclude that the defendant has not had an adequate opportunity to meet the plaintiff’s case or that his further examination is required for the defendant to receive a fair trial.
The case is a good example of the court rejecting a ‘tit for tat’ approach to litigation that would see each report requiring a response from an expert with similar qualification. It is also a good reminder that absent consent of the other party, an order is required to compel a plaintiff to attend a defence medical. In this case, Justice Jolley concluded that 3 defence medicals were enough to allow the defendant to meet the plaintiff’s case.
https://www.canlii.org/en/on/onsc/doc/2021/2021onsc8445/2021onsc8445.pdf
