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Evidence Key for Multiple Defence Medical Examinations

In Jones v. Ivanouski, Master Haberman  noted that defence medical examination motions are “won and lost on the evidence presented to the court”.    Master Haberman cited Nelson v. Thiruchelvam [2005] O.J. No.743 in which it was stated:

“Multiple defence medical examinations are not granted as a matter of course.  While there appears to be some dispute in the case law regarding whether the moving party must establish an absolute need for the additional examinations as opposed to the examinations being “critical”, the general principle that appears to emerge from the cases is that the moving party must provide evidence that addresses why they seek particular examinations and the basis for seeking that relief must be clear and compelling.”

Master Haberman then cited Monastero v. Savage in which  Gordon J. laid out a series of factors that the court should consider when exercising its discretion on such motions:

o      The moving party must establish a need for the further examination;

o      New symptoms or complaints or a change in the landscape of the case as a result of a new medical report from the plaintiff is often used as the basis to justify a further defence medical examination;

o      The overriding test is fairness and both sides having the ability to put the best evidence before the court at trial.

Click here for the full text of Jones v. Ivanouski (November 19, 2009 Master Haberman (Ont. S.C.J.))
 

Leave to Examine a Second Representative of a Party  -  Factors for Consideration:

Justice J. Ferguson of the Ontario Superior Court of Justice has set forth a useful list of principles to be used to determine whether Rule 31.03(2)(b) motions for leave to examine a second representative of a party should be granted.   These include:

i)        The refusal of the second examination would otherwise deprive the moving party of a meaningful discovery (Scintilore Explorations Ltd. V. Larche, [1995] O.J. No. 719 (Gen. Div.); Ing Wellington Insurance Co. v. Alexander Forbes Risk Services UK Ltd. [2003] O.J. No. 1012 (Sup. Ct.); Telemax Communications Inc. v. Canquest Communications (Canada) Inc. , [2006] O.T.C. 252 (Ont. Sup. Ct.));
ii)      The representative is unable, cannot or will not satisfactorily inform himself (Bayblis Estate v. Attorney – General of Canada (2000), 49 C.P.C. (4^th) 179 (Ont. Sup. Ct.); Ing Wellington Insurance Co., supra.);
iii)     The plaintiffs would otherwise not have a full inquiry into all relevant matters raised on the pleadings (Westcoast Transmission Co. Ltd. V. Interprovincial Steel and Pipe Corporation Ltd. (1984), 49 C.P.C. 101 (B.C.S.C.); Ing Wellington Insurance Co., supra.); and
iv)     The questions have not been answered, or that answers given have been incomplete, unresponsive or ambiguous (Westcoast Transmission Co. Ltd., supra.; Ing Wellington Insurance Co., supra.)

Click here for the full text of Yang v. Simcoe (County) (October 27, 2009 J. Ferguson J. (Ont. S.C.J.)).

NEW FACEBOOK DISCOVERY CASE

In Schuster v. Royal & Sun Alliance Insurance Company of Canada (October 29, 2009 Price J. (Ont. S.C.J.)), the Plaintiff  sued her insurer to recover compensation for injuries she suffered in an automobile collision, claiming her injuries  compromised her ability to work and to participate in social and recreational activities.  The Defendant insurer learned after examining the Plaintiff for discovery that she had a Facebook account with an area which, though designated “private” and having access to it restricted, nevertheless allows access to some sixty-seven “friends”.  The Defendant sought an ex parte interim order preventing her from deleting any of the content from the account and, later, after she was to be given notice, an order requiring her to produce the content for the Defendant’s inspection.

The motion was dismissed, although the Defendant was granted leave to cross-examine the Plaintiff on her Affidavit of Documents.

Price  J. cited the recent Facebook decisions of Wice and Leduc  in which the Court ordered production for inspection of documentary material in the manner provided for by Rule 30 and required the responding party to preserve their Facebook content in the interim.

However, in Schuster,  Price J. could find no evidence that the Plaintiff’s Facebook account contained relevant evidence.  There was no evidence that there were photographs showing the Plaintiff’s physical capabilities or whether she had engaged in activities in relation to which she claims to have been impaired.  Furthermore, since the Facebook page was not disclosed in the Plaintiff’s Affidavit of Documents, Price J. presumed that the documents contained in the Plaintiff’s Facebook account would not have been listed in her Affidavit of Documents because they did not contain any relevant evidence.

Price J. stated that:

“ The Defendant was at liberty to cross-examine the Plaintiff on her Affidavit of Documents if it considered it desirable to do so.  It was also free to question the Plaintiff about her Facebook account at her examination for discovery.  There is no evidence that it did so.  The Defendant should not seek to by-pass the need to make these inquiries by prematurely seeking an order for the delivery of a Supplementary Affidavit of Documents or preservation or production of documents by asking the Court to speculate as to the content of the Plaintiff’s Facebook account.  “

Finally, with the respect to the ex parte nature of the request, Price J. found that there was no evidence to conclude that the Plaintiff was likely to delete content from her Facebook profile pending trial.

In summary, Price  J. found that:

“ the Defendant has not established a basis for a preservation order in the present case, especially on an ex parte motion.  The Defendant has not put forward evidence, beyond a bald assertion, that there is relevant evidence that needs to be preserved.  It also has not put forward evidence beyond mere speculation to support a conclusion that an order is required on an ex parte basis to prevent the destruction of evidence after a notice of motion for production is given and pending the return of such a motion."

For the full text of  Schuster v. Royal & Sun Alliance Insurance Company of Canada (October 29, 2009 Price J. (Ont. S.C.J.)), click here.