McGowan v Green, 2020 ONSC 686
Full Decision
The Defendant brought a motion to compel the Plaintiff to undergo a neuropsychology medical-legal examination in Mississauga. The Plaintiff resided in Ottawa, and objected to the required travel to attend this examination. She had opinions from her own neuropsychologist and family doctor that the extended travel would be detrimental to her recovery, and could result in a set back of her therapeutic gains. Following the accident, the Plaintiff had traveled to Jamaica for a destination wedding and to Kingston to attend medical appointments, but she was generally a passenger on those occasions.
Justice Tausendfreund notes that the guiding case law for determining the location of a defence medical examination comes from Nutley v. Kuper, 2008 CanLII 35692 at paragraph 11, where Justice Pierce held that:
- There is no general rule as to the place of the examination;
- Prima facie, the Defendant has a right to select the physician to perform the examination;
- Since the Defendant’s medical expert may be the only medical witness for the defence at trial, the courts should not unreasonably interfere with the choice of the medical assessor where the assessment is not unreasonably inconvenient; and
- The place of examination should be determined by what is convenient and just.
Justice Tausendfreund goes on to add the following two considerations to the list:
- The convenience of the party to be examined is a factor to be considered; and
- The convenience of the party includes providing adequate transportation, as the party’s circumstances require.
In this case, the un-contradicted evidence of the Plaintiff’s treating physicians went beyond raising a concern about a level of inconvenience. Justice Tausendfreund states that the Defendant’s right to choose their medical expert is not unfettered, particularly if the well-being of the patient might be compromised. There was no evidence from the defence as to why it must have been that specific doctor in Mississauga, when there were well-qualified neuropsychologists in Ottawa, Kingston, and closer locations, and assessment dates were available within reasonable time periods. There was also no evidence that the Defendant could not retain a neuropsychologist in Ottawa, or any closer destination than Mississauga.
In balancing the competing interests, the motion was dismissed with leave to the Defendant to arrange another medical legal examination, keeping in mind the court’s comments.