Motion for Defence Medical Exam Brought Too Close to Trial

In Lafontaine v. McDaniel, 2022 ONSC 5153, the court dismissed the defendant’s motion to compel the plaintiff to attend a neuropsychology expert assessment and to extend the deadline to serve the expert’s report.

The motion was heard on August 5, 2022. The proposed expert examination was scheduled for August 9, 2022. The trial was scheduled for September 19, 2022.

The action had previously been scheduled for trial in 2018, 2019, and 2020, but the trial was adjourned for various reasons. A pre-trial conference was held in 2018.

The plaintiff served a report of a neuropsychology expert in November 2020. In May 2021, the plaintiff agreed to attend a defence neuropsychology examination. The defendant was planning to schedule an in-person examination after the provincial pandemic lockdown had lifted, which was in June 2021, but the examination was not scheduled in a timely manner.

The next communication from the defendant regarding the examination was in May 2022. The defendant wanted the plaintiff to attend the examination in June 2022, but the plaintiff refused.

Justice Cullin held that, had the motion been brought in May or June 2021, she would have had no difficulty granting the defendant’s motion. However, there was no explanation of why no steps were taken between May 2021 and May 2022 to schedule the examination.

Further, the defendant did not address the prejudice that would result to the plaintiff if the motion was granted. The plaintiff provided evidence that her expert would not be able to deliver a reply report prior to the trial. The defendant conceded that the trial would need to be adjourned if the examination took place in June or August 2022.

Justice Cullin denied the motion, but the defendant can renew the motion if the trial does not proceed on September 19, 2022.