Released August 20, 2015 | CanLII
This Superior Court decision involved a motion brought by a defendant for an order requiring the plaintiff to attend defence orthopaedic and psychiatric examinations. The plaintiff was involved in two motor vehicle accidents in 2006 and 2009. The pleadings and the available medical evidence indicated that the plaintiff’s physical and psychological impairments were matters at issue in the proceeding. A trial record was filed by the plaintiff. At assignment court in January 2014, counsel for the defendant agreed to a fixed trial date without reserving the defendant’s right to conduct an independent medical examination of the plaintiff. A trial date was set for February 2016. It was not until March 2015 that the defendant advised plaintiff’s counsel of its intention to schedule two defence medical examinations. At issue was the interpretation of Rule 48.04(1) and whether the defendant required leave to bring its motion after agreeing to a trial date.
After reviewing the applicable case law, the court concluded that consenting to a fixed trial date is not the same as consenting to an action being placed on a trial list. The court found that the wording of Rule 48.04(1) is clear and specific and requires a party who has set an action down for trial or consented to an action being placed on a trial list to seek leave to initiate a motion or conduct further discovery. The court found that if the drafters of the Rules intended to extend the leave requirement to any party who agreed to a fixed trial date, they could have easily incorporated that language into the Rules. The court further noted that parties to an action in Toronto are required to complete the Toronto Certification Form and potentially appear at trial scheduling court regardless of whether they set down the action for trial. The court further asserted that the Rules should not be interpreted in a manner that discourages parties from cooperating in the trial scheduling process out of a fear of losing substantive rights. The court ultimately concluded that the defendant did not need to seek leave in order to bring its motion for defence medical examinations and ordered that the plaintiff attend same.
Read the full decision on CanLII.
