Babcock v. Destefano, 2016 ONSC 5352

Defendant’s Motion for DMEs Dismissed, while also Chastised for Not Taking Pre-Trial Preparations Seriously

Released August 24, 2016 | Full Decision [CanLII]

In this motion, the Defendant insurer, Wawanesa, sought an order requiring the Plaintiff to be examined by several medical specialists. The Plaintiff opposed the order on various grounds, including that the Defendant required leave to bring the motion, the request was in violation of the Rules of Civil Procedure (“the Rules”), and that the motion was brought after the pre-trials took place.

The Defendant argued that it was entitled to the examinations as of right under the Courts of Justice Act, since these were the first examinations that the Defendant had sought. It argued that the examinations were required as a matter of fairness in order to permit the Defendant to properly defend the action.

The Plaintiff argued that he would be prejudiced as the examinations would likely delay the trial. He argued the Defendant had ample time to arrange the examinations and only now sought defence medical examinations after two pre-trials had been conducted. The Plaintiff also argued that the Defendant required leave pursuant to Rule 48.04.

While Justice Ray held that the Defendant did not require leave under Rule 48.04 as it did not expressly consent to the trial date, he went on to dismiss the Defendant’s motion. He rejected the Defendant’s argument that it had an unfettered right to a defence medical. He also dismissed the Defendant’s argument that the timing of the request was irrelevant. Justice Ray held that the failure of the Defendant to seek defence examinations prior to the pre-trials required that the court scrutinize the requested orders more closely.

Justice Ray noted that the Rules for pre-trials make it clear that the case must be ready for trial with all reports available. All reports must be filed 60 days before the pre-trial, not 90 days before trial, which was the previous practise.

Notably, Justice Ray chastised the Defendant and its counsel for not taking its preparations for pre-trial seriously. He wrote:

Since earlier trial dates were made available, then all counsel needed to take their preparation seriously. Wawanesa’s motion has not been triggered by anything the plaintiff did or failed to do. It was caused solely by its own failure to take these obligations seriously. An additional problem created by Wawanesa is that the trial time was estimated at the time of the pretrial without the benefit of knowing what if any defence experts were necessary. That in and of itself raises the spectre of additional trial time being necessary; and at a time of tight judicial scheduling, it may not be available and may have to be re-scheduled. Counsel’s position in its factum ignores all of the foregoing, makes no apologies, and says the only relevant factor is whether the trial date will be delayed.

Read the full decision on CanLII
Liane Shepley-Brown
Written by

Liane first joined Oatley Vigmond as a law student and later joined the team as an Associate Lawyer after her call to the bar. She holds a JD from the University of Windsor and an undergraduate degree in Psychology from the University of Guelph.

Liane is committed to representing individuals who have suffered serious personal injuries and to families who have suffered the loss of a loved one. Her practice concentrates on personal injury law, including accident benefits, motor vehicle collisions, medical malpractice, occupiers’ liability, product liability and wrongful death cases.

When Liane isn’t practicing personal injury law, she enjoys working out and spending time with family and friends.