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A Caution on Choice and Timing of Defence Medical Experts

By Meryl Rodrigues

The recent Superior Court motion decision in Mitsis v. Holy Trinity Greek Orthodox Community of London[i] speaks to the importance of defence counsel properly considering strategy when arranging a medical examination of a plaintiff – both with respect to timing of such an examination and to the choice of expert.

In Mitsis, a personal injury action arising from slip and fall, the defendant moved for an Order compelling the plaintiff to attend a second medical examination pursuant to section 105 of the Court of Justice Act and Rule 33.02 of the Rules of Civil Procedure, as well as for an adjournment of a fall pre-trial conference to allow for service of the subsequent expert report.

Prior to the plaintiff serving a timely expert orthopedic report, the defendant had chosen to arrange a physiatry examination of the plaintiff, due to the plaintiff’s discovery evidence reportedly revolving around complaints of pain. The physiatry report ultimately prepared and served was, unfortunately for the defendant, not particularly helpful to the defendant’s case.

In response to the plaintiff’s subsequent expert orthopedic report, the defendant sought to arrange an orthopedic assessment of the plaintiff, which the plaintiff refused, resulting in the subject motion.

In his analysis, the motion judge, Justice Nicholson, applied the test and principles set out in Bonello v. Taylor[ii], which he accepted to be the guiding decision with respect to ordering further examinations. His Honour noted that the overriding consideration is trial fairness, and that each case to be determined on its own merits.

His Honour noted that, in his view, section 105 of the CJA and Rule 33 contemplate one defence medical examination “as of right”, which defendants ought to be well aware of and so ought to expect that further examinations may be met with resistance.

His Honour noted further that defendants have significant leeway in expert selection for the first examination, which defendants are free to arrange before or after being served with an expert report on behalf of the plaintiff.

In the circumstances of the motion before him, His Honour found there would be no procedural unfairness to holding the defendant to its choice of expert. He noted that it should have been clear from the Statement of Claim and documentary evidence that the plaintiff’s predominant injury was of an orthopedic nature and, further, there was no evidence before him that the defence physiatry expert was not sufficiently qualified to opine on that injury. His Honour expressed suspicion that the defendant was simply hoping for a more favourable report in seeking a further medical examination and report.

Considering the specific applicable factors set out in Bonello, Justice Nicholson thus found that the defendant was attempting to repair the initial physiatry opinion obtained. He held that this was not a case where the plaintiff’s condition was alleged to have changed or deteriorated since the initial defence assessment. Further, there was no evidence on which he was prepared to rely to accept that the physiatrist was not appropriately qualified to opine on the plaintiff’s injuries.

Finally, His Honour was critical of the defendant’s evidence on the motion (through an affidavit of a law clerk), noting that a law clerk’s assertion that a particular physician’s expertise is suboptimal in assessing the plaintiff is less persuasive than if that evidence had been adduced by the physician him/herself.

The defendant’s motion was accordingly dismissed. The take-away caution for defence counsel appears to be that careful consideration is necessary if choosing to proceed with an expert medical examination first, rather than waiting to see what specialty the plaintiff consults. If the defence opts to proceed first, it may well be held to the decision as to its choice of expert, without further opportunity for perhaps a more suitable (and potentially more favourable) expert assessment and report.

[i] 2021 ONSC 5719.

[ii] 2010 ONSC 5723.