Plaintiff’s Appeal Dismissed on Attending In-Person Defence Medical Exams During the Pandemic

In a previous blog post, Meryl Rodrigues discussed the case of Mierzejewski v. Brook, in which the plaintiff was ordered to attend in-person defence medical assessments despite concerns over COVID-19.

The plaintiff provided evidence from a treating doctor who indicated that the plaintiff was at high risk to contract COVID-19 and to have a poor outcome. However, the evidence also showed that, during the pandemic, the plaintiff has attended appointments related to the litigation, including an in-person occupational therapy assessment arranged by her lawyer and a meeting at her lawyer’s office.

Associate Justice Jolley agreed with a prior decision which indicated that requiring a plaintiff to attend an in-person defence medical during the pandemic does not pose an undue hardship on a plaintiff where the examination will be conducted with COVID-19 safety protocols. 

Recently, Justice Stewart dismissed an appeal by the plaintiff: Mierzejewski v. Brook, 2021 ONSC 7668. Justice Stewart held that Associate Justice Jolley’s findings were amply supported by the evidence and that her decision was correct.