Fridays With Rogers Partners

At our weekly firm meeting, Angeline Bellehumeur discussed the case of Van Dijk-Alac v. Aviva General Insurance Company, 2021 ONSC 1344. The court considered various relief sought by the defendant, Aviva General Insurance Company (“Aviva”). The following are highlights of the Court’s decision with respect to Aviva’s motion for an order requiring the plaintiffs to attend defence medical examinations.

Background

This case arises out of a claim arising out of a motor vehicle accident whereby the plaintiff, Ms. Van Dijk-Alac, was allegedly injured. The plaintiffs claim that Ms. Van Dijk-Alac has psychiatric, neuropsychological and physical injuries due to the accident. The other plaintiff in this case is John Alac, who is seeking damages under the Family Law Act.

The plaintiffs have already retained and served the opinions of various experts, including a psychiatrist, a neuropsychologist, and a physiatrist.

Aviva states that the plaintiffs refused to attend or participate in an examination by a defence neuropsychologist. Ms. Van Dijk-Alac had agreed to attend an examination by the psychiatrist and the orthopaedic surgeon, but she did not agree to the manner in which Aviva required her to attend.

Additionally, the plaintiffs refused to attend or participate in an examination by the defence neuropsychologist, and further refused to have Mr. Alac participate at all.

Orders Sought

Psychiatry Examination

Aviva moves for an order to have Ms. Van Dijk-Alac attend a psychiatric examination with either one of two named psychiatrists, and that the examination be potentially extended to take place across multiple days at the discretion of the psychiatrist in order develop his opinion.  Further, Aviva seeks that Ms. Van Dijk-Alac’s husband be available to be examined by the psychiatrist in relation to the allegation that the accident damaged their marriage.

Neuropsychological Examination

Aviva also seeks an order for Ms. Van Dijk-Alac to attend a neuropsychological examination across as many dates as necessary to complete the examination.

Physical Examination

Aviva further seeks an order for Ms. Van Dijk-Alac to attend a defence orthopedic assessment.

Issues

The Court identifies the following issues that arise from this motion:

1. Can the defence choose and change the doctor who carries out the examination at its discretion?

2. Can the examining doctor carry out an extended examination at the discretion of the doctor?

3. Is Aviva entitled to both psychiatric and neuropsychological assessments?

4. Can a plaintiff who has a claim for loss of guidance, care and companionship be required to attend an examination, either on his own self or as a participant in the examination of the injured plaintiff?

Analysis

In its analysis, the court acknowledges the insurance policy term regarding required attendance in defence medical examinations. However, the court does not make a determination on that basis. Instead, it makes a decision according to section 105 of the Courts of Justice Act and Rule 33 of the Rules of Civil Procedure.

Section 105(2) and (4) of the Courts of Justice Act states that if a party’s mental or physical condition is in question, the Court has the discretion to order the party to undergo a physical or mental examination by one or more health practitioners. However, “the defendant is not entitled to multiple examinations as of right.”[1]

1. Choice of Expert

The Court determined that if Aviva seeks to have discretion of changing the assessor in question, that request is denied. Aviva had not proposed a particular physician or specialist and an analysis as to whether changing the assessor in question cannot be completed.

2.  Extended Examination at the Doctor’s Discretion

The Court was not prepared to order that Ms. Van Dijk-Alac attend the assessment of the neuropsychologist or the psychiatrist over multiple days without any evidence of a medical requirement for such. The Court also does not make an order for the duration of each the psychiatric and neuropsychological examinations. 

3. Psychiatric/ Neuropsychological Assessments

There was no dispute that these two fields cover different components of medicine and that Ms. Van Dijk-Alac has been examined in both areas of expertise. The plaintiffs have served those expert reports. The plaintiffs do not object that a neuropsychiatric assessment may be necessary after receiving the defence psychiatrist’s report. However, Ms. Dijk-Alac claims to have found previous neuropsychological testing tortuous, draining and humiliating and does not want to experience this again unless necessary.

Since the plaintiffs are relying on a neuropsychiatrist, the Court concluded that Aviva should be given “a fair opportunity to respond with expert evidence from the same specialty based on an assessment of the plaintiff.”[2]

The Court ordered for Ms. Van Dijk-Alac to attend a neuropsychological examination. According to the record put forward by Aviva, the neuropsychologist’s examination was held to be warranted, legitimate, and not made with a view of delaying trial.

4. Mr. Alac’s Attendance and Participation

Aviva wishes to assess Mr. Alac because he had participated in a number of the plaintiffs’ produced expert reports. Accordingly, Aviva simply wants the same information that the plaintiffs’ expert had with respect to how the accident affected the marriage and to provide information that Ms. Van Dijk-Alac could not.

The Court held that there was no need for Aviva’s medical experts to assess Mr. Alac. The parties will testify and be cross-examined, they have been examined for discovery, and their counselling records could be produced. The Court concluded that Mr. Alac “shall be available to the psychiatrist to provide information with respect to the assessment of Johanna Van Dilk-Alac that she is unable to provide.”[3]

[1] Ibid at para 12.

[2] Ibid at para 58.

[3] Ibid at para 50.