Nguyen v. Kojo, 2017 ONSC 2014

Denied request by defendant to conduct a physiatry IME. 

Heard March 30, 2017 | Full Decision [CanLII]

This is a short decision about requests to attend defence medical examinations.

Wawanesa, a statutory third party, sought an order compelling the Plaintiff to attend a defence physiatry assessment. Wawanesa’s motion was rejected. The motion was refused because of Wawanesa’s delay in requesting an IME. The action had been ongoing for 7 years. The Plaintiff served reports in 2008, 2011, and two reports in December 2016. Despite receiving those reports, and being a party to the action since its commencement, Wawanesa waited until March 8, 2017 to request an IME. This was a mere 12 days before a scheduled March 20, 2017 pre-trial. It was only two months before the trial of this action was scheduled to commence in May 2017.

Master Muir concluded that ordering the Plaintiff to attend the IME would cause irreparable prejudice. Specifically, the Plaintiff’s own chronic pain expert had no availability until June of 2017. Therefore, if the Plaintiff were ordered to attend the defence IME, the Plaintiff’s chronic pain expert would be unable to prepare a responding report prior to the May 2017 trial. However, in the event the trial were adjourned, Master Muir ordered the Plaintiff to attend. Master Muir wrote:

Most importantly, the plaintiff’s evidence is that his chronic pain expert has no appointments available until June 2017, several weeks after the scheduled trial date. In my view, there is a real risk that the plaintiff will be unable to respond before the scheduled trial date. The plaintiff will be prejudiced either by going to trial without a response or having his long pending day in court pushed further down the road.

If it were not for the pending trial I would order the plaintiff to attend the requested examination. The plaintiff served new reports in December 2016. These were the first reports served by the plaintiff in over five years’ time. Wawanesa and the defendant have not conducted an independent medical examination of the plaintiff for the purposes of this action. In my view, a defendant has a right to an independent examination for the purposes of this action, as does Wawanesa. It is also important for the court to have current medical evidence.

For these reasons, the plaintiff need not attend the April 10, 2017 examination. In the event that the trial of this action does not take place during the May 2017 sittings and is adjourned to the November 2017 sittings or later, the plaintiff shall attend a defence examination with a physiatrist forthwith after the trial date has been adjourned.

Read the full decision on CanLII

Decision of: Master R.A. Muir

Counsel:

  • Dave Dhillon, Stephen Macauley, for Statutory Third Party
  • Jono Schneider
Written by

Jordan's practice focuses on motor vehicle accidents, occupiers’ liability, product liability, municipal liability, medical malpractice, wrongful death, accident benefits, and long-term disability claims.

In his spare time, he enjoys golfing, downhill skiing, road cycling, and fishing. Jordan is also an avid NFL and Toronto Blue Jays fan.