Fridays with Rogers Partners

At our weekly meeting, Chris MacDonald discussed the recent Superior Court decision in Letchumanan v Jeyaseelan et al., 2021 ONSC 5253. In this decision, the defendant brought a motion to compel the plaintiff to attend a defence psychiatric evaluation in September 2021.

History of the Litigation

This action arose as a result of a car accident involving the plaintiff and the defendants. The accident occurred in 2014 and the plaintiff commenced the action in 2016.

The plaintiff answered defence questions in 2017 and served her expert psychiatric report on the defendants the following year. The plaintiff’s mental and physical health were both at issue in the action.

Prior to a pre-trial conference in September 2020, the defendants did not include an expert report in their pre-trial brief. The pre-trial judge ordered that the matter go to trial in May 2021. The trial was subsequently adjourned to January 2022 due ongoing court delays caused by the pandemic on civil jury trials.

At no point prior to the defendants’ motion did the defendants take any steps to obtain a defence medical assessment.

The Defendants’ Position on the Motion

At the motion hearing, the defendants argued that they were prima facie entitled to one defence medical on consent or by order of the Court. Without conducting their own examination of the plaintiff, the defendants contended that their right to make full answer and defence would be jeopardized. The defendants also maintained that while they had access to independent examinations conducted in the accident benefits context, those assessments were not an adequate substitute for an independent medical assessment.

Issue

The Court considered whether the defendants were entitled to compel the plaintiff to attend a defence psychiatric examination.

Analysis

Where the party seeking an assessment has delayed, the onus on it to provide a reasonable explanation for the delay is a heavy one. As Justice Mandhane stated:  

At some point, the prejudice to the plaintiff of delaying the trial will outweigh the defendants’ desire for an independent examination. This is especially the case in circumstances like this, where the plaintiff acted prudently to move the matter along and provided timely and ongoing disclosure.

The Court noted that the defendants’ were significantly delayed in bringing the motion. It had been seven years since the accident had occurred and five years since the action was commenced.

His Honour had “real concerns” that the defendants were attempting to further delay the timely adjudication of the matter, and found that they had no adequate reason for their inordinate delay and failure to take steps to obtain a defence medical examination prior to the motion.

Justice Mandhane further remarked that the defendants could not use delays caused by the pandemic as an excuse for their failure to abide by their obligations under the Rules of Civil Procedure to deliver expert reports 90 days before the September 2020 pre-trial conference.

Decision

In dismissing the defendants’ motion, Justice Mandhane concluded that to order a defence medical at such a late stage in the litigation would be overly prejudicial to the plaintiff and could jeopardize the upcoming trial date in January 2022.

Takeaway

This decision demonstrates that while the defendant has the right to make a full answer and defence, this right is not absolute, and may be curtailed in circumstances where there is no reasonable explanation for delays by the defendant in obtaining defence medical reports.