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In-Person Assessments in the Time of COVID-19

By Meryl Rodrigues

At this point, over a year later, it is trite to say that the COVID-19 pandemic has given rise to various changes (and challenges) in the civil legal landscape. From procedural overhauls to substantive legal issues, COVID-19 appears to be an ever-present factor arising in one aspect or another in virtually all active civil cases.

Two recent Superior Court decisions speak to one such aspect, namely in-person expert medical assessments. The decisions indicate that, not unexpectedly, fear surrounding COVID-19 has been raised by plaintiffs as a ground to avoid in-person medical assessments.

Mierzejewski v. Brook

In Mierzejewski v. Brook[1], the defendants sought an order to compel the plaintiff to attend a defence neuropsychology examination and physiatry examination, both to take place in-person, ahead of an impending trial.

Although the plaintiff agreed to the physiatry examination (while opposing the neuropsychology examination altogether), she took issue with the in-person form of either assessment.

The plaintiff did not agree to attending an assessment in person, in light of the pandemic and what she described as a “compromised health situation”. Her health history was significant for a heart attack, heart surgery, breast cancer and lumpectomy, all within the last five years. It was found that she generally did not leave her home, unless necessary.

In support of her position, the plaintiff filed affidavit evidence from one of her treating physicians, who opined that her multiple and notable health conditions and medication intake placed the plaintiff in the high end of high risk to contract COVID-19 and to have a poor outcome.

Given that in-person attendance at the sought medical examinations would necessitate the plaintiff visiting a multi-tenant mixed use office space, the physician opined that it would be irresponsible to require the plaintiff’s attendance in-person.

The defendants appear to have adduced evidence from both the proposed neuropsychological and physiatry examiners on the motion. Both indicated that their respective assessments could not be done virtually – the physiatrist needed to perform a critical physical examination, and the neuropsychologist had to administer cognitive testing using necessary stimulus materials.

The defendants also adduced evidence addressing the COVID-19 protocols in place at the intended assessment location, which were found to be compliant with Ministry of Health and the College of Physicians and Surgeons of Ontario guidelines.

After considering the evidence, and finding that the plaintiff had put her musculoskeletal injuries, chronic pain, and, ultimately, her neurocognitive state in issue in the action, Master Jolley ordered that both assessment proceed in-person.

Master Jolley noted, presumably based on evidence filed by the defendants, that the plaintiff had attended necessary appointments during the pandemic. With the pending trial date, the case was not one where the parties could wait for the pandemic to ease before examinations took place.

Master Jolley found that in-person attendance at the sought examinations was necessary.

Severin v. Barker

In reaching his decision in Mierzejewski v. Brook, Master Jolley relied upon the earlier decision of Justice Gauthier in Severin v. Barker[2].

In that case, Justice Gauthier held that requiring a plaintiff to attend an in-person examination during the COVID-19 pandemic “does not pose an undue hardship on a plaintiff where the examination will be conducted with COVID-19 safety protocols.”[3]

In Severin, the defendant brought a motion seeking to compel the plaintiff to attend an independent neuropsychological assessment. Although the bulk of the motion related to issues of whether leave ought to be granted to the defendant to bring the motion, and whether the sought assessment was warranted and legitimate in the circumstances, one factor considered was, indeed, COVID-19.

The plaintiff contended that the proposed assessment would cause her unnecessary and undue stress and hardship associated with repeated examinations, as well as COVID-19 concerns.

In fact, the plaintiff offered to provide the defendant with the raw test data from her own neuropsychology expert assessment in order for the defendant to secure the sought expert opinion and avoid an in-person examination.

Justice Gauthier ultimately held in favour of the defendant on all issues.

Her Honour found that the offer to provide the raw data generated by the plaintiff’s expert in order for the defendant to secure its own opinion was not a substitute for an independent neuropsychological assessment of the plaintiff.

Her Honour considered the plaintiff’s COVID-19 concerns as an issue of whether the examination would impose an undue burden on the plaintiff, in light of the number of examinations already conducted by the defence.[4]

While acknowledging that the plaintiff would be inconvenienced in having to attend in person for the sought defence neuropsychological assessment, Justice Gauthier did not accept that such attendance would constitute an undue hardship. The evidence showed that the plaintiff had travelled and attended various assessments after COVID-19 first arose in Ontario, none at the defendant’s behest.

Her Honour accepted the defendant’s position that the in-person assessment sought would take place with appropriate COVID-19 safeguards.

Further, she accepted that any potential hardship the assessment would cause would be outweighed by the prejudice to the defendant if not permitted to adequately respond to the plaintiff’s neuropsychology expert report.

Take-Aways

One might expect that, as the province continues to roll out its vaccination efforts, concerns surrounding in-person assessments due to COVID-19 will be eased (to the extent they are legitimate and not simply a means to avoid independent medical examinations).

Although at present there are some legitimate concerns about COVID-19, it appears that the court will not give much weight to those concerns in the face of evidence establishing the need for an in-person assessment, the implementation of sufficient COVID-19 safety protocols, and the plaintiff’s willingness to attend other appointments or examinations in person when deemed necessary.  

[1] 2021 ONSC 2295.

[2] 2020 ONSC 7784.

[3] Mierzejewski, supra note 1 at para 10.

[4] This is one of several factors considered on a motion under Rule 33.02 of the Rules of Civil Procedure with respect to seeking a medical examination of an adverse party, as set out in Bonello v. Taylor, 2010 ONSC 5723.