Defendant Denied Further Defence Medical Exam Due to Insufficient Evidence

In Rocca v. 6131646 Canada Inc., 2021 ONSC 8445, the defendant brought a motion to compel the plaintiff to attend a defence medical examination with a physiatrist. The plaintiff had already attended three defence medical examinations, specifically, by an orthopaedic surgeon, a psychiatrist, and a neurologist.

The defendant argued that it required a physiatry expert to respond to an opinion from the plaintiff’s physiatry expert. However, the defendant’s orthopaedic expert had already provided a detailed response to the opinion of the plaintiff’s physiatry expert.

There was no evidence of any limitations on the defence orthopaedic expert’s ability to respond to the plaintiff’s physiatry report. Further, there was no evidence on what sort of an examination the defence physiatry expert would undertake and how it would be different from the examination conducted by the orthopaedic expert.

Associate Justice Jolley indicated that there was insufficient evidence to conclude that the defendant has not had an opportunity to meet the plaintiff’s case or that the further examination is required for the defendant to receive a fair trial. As a result, the defendant’s motion was dismissed.