On June 6, 2016, the Superior Court of Justice released its decision in Marfo v. Ahmed.1 In this case, the defendants, having already obtained a defence physiatrist assessment, requested that the plaintiff undergo a defence orthopedic assessment to counter the orthopedic report served by the plaintiff. Master Muir rejected the request and dismissed the defendants' motion, with costs.
During the course of the litigation, the plaintiff served two medical reports. The first was from Dr. Michael West, an orthopedic surgeon, dated July 22, 2012. The second was from Dr. J. Pilowsky dated July 27, 2012. The plaintiff also obtained a second report from an orthopedic surgeon for the purpose of his accident benefits claim but advised that he would not be calling that expert as a witness at the trial of the tort action.
Having been served with the plaintiff's reports, at the request of the defendants, the plaintiff underwent two defence medical examinations. The first was conducted by Dr. D. Berbrayer, a physiatrist, October 17, 2014. The second was a defence psychological examination with Dr. David Prendergast on December 8, 2015. On motion, the defendants sought an order requiring the plaintiff to attend at a second physical examination with Dr. Axelrod, an orthopedic surgeon.
The parties agreed that the applicable legal test on motions for further defence medical assessment(s) is found in Bonello v. Taylor.2 The applicable factors are set out at paragraph 16 of that decision as follows:
- 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;
- 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;
- Some cases take the view that the need for a "matching report" - i.e. a report from a defence expert witness in the same specialty as a plaintiff's expert - is not, in and of itself, a sufficient reason to order a further defence medical. In the circumstances of the present case I need not wade deeply into that question. That said, I would venture that trial fairness should operate as the guiding principle in this area, so if the plaintiff has decided that expert evidence from one specialty based on an examination of the plaintiff is relevant to the adjudication of her claim at trial, courts should be loathe to deny the defence a fair opportunity to respond with expert evidence from the same specialty based on an assessment of the plaintiff. Ordering further examinations may be just where they are necessary to enable the defendant fairly to investigate and call reasonable responding evidence at trial;
- 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;
- 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. Some cases have suggested that need must be established by filing medical evidence, such as an affidavit from the first examining physician recommending a further examination by a health practitioner competent in another specialty. In other instances an affidavit from a lawyer or law clerk attaching medical reports has been utilized by the court. But, at the end of the day, determining whether the nature of the evidence filed is sufficient remains essentially an exercise of judicial discretion;
- 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,
- 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.
In his decision on the motion, Master Muir stated that the defendant bears the onus on this type of motion and must demonstrate to the court that the second physical examination is warranted. A plaintiff should not be subjected to endless physical examinations at the sole discretion of the defendants.
After reviewing the facts before him, Master Muir concluded that as there had been no significant change in the plaintiff's condition since October 2014. He rejected the defendants' argument that plaintiff's involvement in a second motor vehicle accident constituted a material or significant change. He pointed to the addendum report of the Dr. Berbrayer, in which it was clear that he was aware of the second accident and nevertheless stated that his opinion was unchanged from his initial report. Master Muir commented that the new information regarding the subsequent accident may be a basis for further oral discovery of the plaintiff but was not a sufficient justification for a further physical examination.
It is also important to note that Master Muir took the timing of the reports into consideration. He noted that the plaintiff had not served any additional reports subsequent to service of the defendants' reports, which were served fairly recently. In Master Muir's opinion there was no need for a more current report given Dr. Berbrayer's conclusions in his November 2015 addendum report.
Master Muir declined to use his discretion to order the plaintiff to attend at the defence orthopedic assessment with Dr. Axelrod.
This case provides an important re-statement of the law surrounding requests for further defence medical examinations and rebuts the common presumptionÂ of defence counsel that defendants are permitted to obtain defence medical report(s) in the same medical specialty to respond to report(s) served by the plaintiff, irrespective of what reports they have already served.
This decision makes it very clear that counsel must be diligent in reviewing the plaintiff's expert reports and determining what specialty is best suited to respond to the report. A defendant will not get more than one “kick at the can” to respond to a report and should choose their experts very wisely. The fact that a plaintiff is involved in a second motor vehicle accident will not automatically constitute a material change in circumstances that warrants a second report.
1 Marfo v. Ahmed, 2016
2 Bonello v. Taylor , 2010 ONSC 5723 (CanLII)
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