The recent Superior Court motion decision in Mitsis v. Holy Trinity Greek Orthodox Community of London1 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. Taylor2, which he accepted to be the guiding decision with respect to ordering further examinations. His Honour noted that...
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