The defendants, Nino Mazzuca and Toyota Credit Canada Inc. (“the Defendants”), brought a motion seeking an order requiring the plaintiff, Adam Courneyea (“the Plaintiff”), to attend a further examination for discovery.
The Plaintiff was injured in a motor vehicle accident on September 13, 2012. He was examined for discovery on February 9, 2015. The pre-trial conference is scheduled for November 10, 2020 and a 25-day trial is set to commence on January 18, 2021.
The parties agreed that to be successful with their motion, the Defendants had to establish exceptional circumstances that warranted a further examination of the Plaintiff. The parties also agreed that a substantial deterioration in a plaintiff’s condition could constitute exceptional circumstances. However, the parties disagreed about whether the Plaintiff’s condition had substantially deteriorated since his examination in February 2015.
The Defendants argued that the Plaintiff did not complain of significant psychological issues at the time of the February 2015 examination and since then, he has been determined catastrophically impaired by his accident benefit insurer due to his psychological condition.
The Plaintiff argued that all his medical records and reports had been produced and he himself would not be able to shed light on his condition. He also argued that that any of his psychological differences since February 2015 were a difference in his symptoms and not in his condition. The Plaintiff argued he has and continues to suffer from depression. Master Jolley did not “believe such a fine parsing [was] warranted.”
The Master reviewed the medical documents produced both before and after the February 2015 examination and the Plaintiff’s evidence given at his examination with respect to his psychological condition. While she accepted the Plaintiff’s position that there was reference to his psychological condition in the reports delivered before the February 2015 examination for discovery, the injuries were of a different magnitude. Master Jolley held that:
[20] Based on the plaintiff’s post-discovery diagnosis of PTSD, his reported behavioural and emotional changes, the fact that he had taken steps toward attempting suicide and had been admitted to hospital on a Form 1 for treatment for a month, I find these changes are more than a natural extension or worsening of the prognosis on which he was examined at discovery. I find there has been a substantial deterioration in the plaintiff’s psychological condition that, on these facts, constitutes an extraordinary circumstance.
[21] I am not prepared to say that the plaintiff will not have something useful to offer during his examination. He may speak to his own symptoms, his daily experiences and future outlook, something that the medical doctors are only able to report second hand.
The Defendants were granted leave to conduct a further examination of the Plaintiff on issues no covered during the first examination.
Courneyea v. Mazzuca, 2019 ONSC 2105
