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When is a defence medical assessment justified?

Three motions were heard before the Ontario Superior Court of Justice this summer which have further clarified when a defence medical examination is justified.  The three motions are: Marfo v. Ahmed, 2016 ONSC 396 [Marfo], Boulet v. Sir Corp. 2016 ONSC 5379 [Boulet] and Mork v. Sanghera, 2016 ONSC 5108 [Mork].

In the Mork decision (released July 29, 2016) Justice Lemon also concluded that there was insufficient evidence to grant the defendants a further defence medical examination with an orthopaedic surgeon.  The defendants argued that their proposed expert, Dr. Hugh Cameron would be able to give evidence in his area of expertise as both an orthopaedic surgeon and a chronic pain specialist.

Justice Lemon reviewed Dr. Cameron’s 79-page resume, which supports that he is an expert in orthopaedics.  Justice Lemon, however, noted that the plaintiff had not put forward an orthopaedic expert report.  In fact, the only examination undertaken by an orthopaedic specialist was at the request of the plaintiff’s accident benefit insurer more than five years prior.  On this basis, Justice Lemon saw no need for such an examination.

With respect to Dr. Cameron’s expertise in chronic pain, there were only three entries on his resume from 1978, 1985 and 1986 under “Non-peer Reviewed – Journal Publications”.  The word “pain” did not otherwise appear on his resume; the phrase “chronic pain” did not appear at all.

Justice Lemon looked at the applicable Bonello factors and concluded that the plaintiff was not relying on an orthopaedic report; therefore, there was no need for the defence to have one.  While Justice Lemon recognized that the defendant would need a report from a chronic pain specialist, there was insufficient evidence that Dr. Cameron could provide helpful evidence for the defendant and court, and it would be unfair to have the plaintiff examined by an unnecessary orthopaedic expert who is not properly qualified with respect to chronic pain.

Finally, in the Boulet decision (released August 25, 2016) the defendants brought a motion for an order requiring the plaintiff to attend a defence medical assessment with an occupational therapist pursuant to section 105 of the Courts of Justice Act RSO 1990, c.C.43 and Rule 33 of the Rules of Civil Procedure, RRO 1990, Reg. 194.

The parties agreed that the Divisional Court’s decision in Ziebenhaus (Litigation guardian of) v. Bahlieda, 2014 ONSC 138 set out the applicable legal test for such a motion.  The court must determine whether the proposed defence medical examination is necessary in the interest of trial fairness and justice and in order for the defendant to meet the plaintiff’s case.  There is no “matching principle”, i.e. a defendant is not entitled to an examination of a plaintiff simply because the plaintiff has served a report from an expert in a particular discipline.

The defendants already had an opinion from a defence medical assessor, Dr. Rajka Soric, physiatrist, who concluded that the examination revealed no indication of accident related physical pathology that would alter the plaintiff’s ability to carry on with her normal daily activities.  In Master Muir’s view the report of Dr. Soric was clear and unequivocal, and the defendants were relying on this report in their defence.  Accordingly, Master Muir concluded that the defendants were simply seeking to corroborate the findings of Dr. Soric or seeking a matching report.  Neither of those justifications were sufficient evidence, and given the defendant’s position in defending the action (i.e. the plaintiff’s injuries have no impact on her ability to carry out her normal daily activities), the further examination was not necessary to meet the plaintiff’s case or in the interest of trial fairness or justice.

Bottom line: a plaintiff should not be subjected to endless defence medical examinations at defence counsel’s discretion.  While defence medical examinations can assist defence counsel’s ability to respond to the plaintiff’s claim, they can also be invasive and traumatizing for the plaintiff.  The decisions discussed in this article will hopefully assist counsel and the court to strike a balance between these two important factors.

In the Marfo decision (released June 6, 2016) the defendants brought a motion seeking an order requiring the plaintiff to attend a defence orthopaedic examination with Dr. Axelrod.  The plaintiff had already served a medical report from Dr. West, an orthopaedic surgeon dated July 22, 2012.

The defendants had already conducted a defence medical examination of the plaintiff on October 17, 2014 with Dr. Berbrayer, physiatrist.  The plaintiff had also attended a defence psychological examination with Dr. Prendergast on December 8, 2015.  The defendants now wanted to conduct a second physical examination of the plaintiff with an orthopaedic surgeon.  The defendants knew the plaintiff would be relying on the report of an orthopaedic surgeon at trial.  However, they chose to have the plaintiff examined by a physiatrist to assess his physical injuries.  Master Muir noted that the defendants could have sent the plaintiff to an orthopaedic surgeon but they chose not to.

According to Master Muir, the defendants must demonstrate that the second physical examination is warranted based on the applicable factors as cited in the leading case on a motion of this nature, Bonello v. Taylor, 2010 ONSC 5723 [Bonello].  Master Muir concluded that there was no evidence that would suggest a significant or important change in the plaintiff’s condition since October 2014.

The defendants argued that in the summer of 2015 they received information regarding a subsequent motor vehicle accident involving the plaintiff that took place in September 2011 and that this new information formed a basis for a second physical examination of the plaintiff by the proposed orthopaedic defence expert. Master Miur did not agree as Dr. Berbrayer was aware of the second accident when he prepared his addendum report, yet concluded that his original opinion did not change.  Dr. Berbrayer did not state he required a further physical examination of the plaintiff in light of this new information.  Master Muir did not view this as sufficient justification to warrant a further physical examination.


How do you prove your case in a hit and run?

In the decision Yu Peng Ding et al v John Doe et al 2016 ONSC 1690, the Plaintiff was the driver of a silver van that crashed with a guard rail when he allegedly swerved to avoid a tractor-trailer. The investigating officer never confirmed the personal identification of the driver of the tractor-trailer. The Plaintiff sought damages against the Defendant, State Farm Mutual Automobile Insurance Co. (“State Farm”) in accordance with the unidentified driver provisions of the Plaintiff’s automobile policy of insurance.

State Farm brought a motion for summary judgment to dismiss the Plaintiff’s action on the ground that there was no unidentified vehicle that caused or contributed to this accident, and accordingly, there is no obligation for State Farm to pay any claim pursuant to the unidentified motorist provisions of the Plaintiff’s policy of insurance.

The Honourable Justice Lederman explained that the policy’s unidentified motorist coverage has two parts: $200,000 standard coverage pursuant to the Ontario Automobile Policy (“OAPI”), and an additional $800,000 coverage provided by the OPCF-44 Family Protection Coverage Endorsement (“OPCF-44R”).

The coverage under the OAPI is available if the plaintiff establishes on a balance of probabilities that the accident was caused by an unidentified driver. The unidentified driver coverage under the OPCF-44R is available if the plaintiff’s evidence is corroborated by “other material evidence”.

Justice Lederman considered the appropriateness of the summary judgment motion, noting that the court is entitled to assume that the parties have put before it all of the evidence that would be available at trial. In this case, Justice Lederman found the court can readily weigh the evidence and make findings of credibility and determine the issues in question, namely,

whether there is sufficient evidence to prove, on a balance of probabilities, that an unidentified vehicle was involved in the accident, and if so,

whether there is sufficient evidence to prove that the negligence on the part of an unidentified driver caused the accident; and if so,

whether there is “other material evidence” required by OPCF-44R that corroborates the plaintiff’s evidence thereby permitting the plaintiff to access coverage in excess of the statutory minimum of $200,000.

The only evidence with respect to how this car accident occurred came from (i) the affidavit of the investigating police officer, to which is attached the accident report and the officer’s notes, (ii) the plaintiff’s statement to a medical provider on the day of the accident, and his report to his insurer the day after the accident, and (iii) the plaintiff’s discovery evidence.

The officer stated in her affidavit that she spoke to the driver of the tractor-trailer and was told that the Plaintiff was trying to enter his lane of travel which prompted him to honk his horn; as he continued driving he observed the Plaintiff lose control of his vehicle. The officer inspected the tractor-trailer for damage and observed no evidence of contact; as a result, she determined the tractor-trailer had no involvement in the accident and let him go without obtaining his personal information.

The Plaintiff argued that he should not bear the prejudice of a faulty police investigation to ascertain the identity of the tractor-trailer driver. In support of this argument the Plaintiff relied on the decisions Miller v. Bacchuis, (1999) 47 MVR (3d) 154 and Johnson v. Doe, (2006) CanLii 51174. But, these cases dealt with the issue of whether an insured failed to fulfill his or her obligation of reasonable diligence to identify the driver/owner of the other vehicle by reporting to the police, and leaving it to the police and possibly the insurer to do a proper investigation. Justice Lederman found no issue as to whether the Plaintiff provided the police and his insurer with information about the accident in a timely way. The officer interviewed the driver of the tractor-trailer and saw no evidence of any damage/contact on that vehicle. She concluded based on her investigation, that there was no need to obtain the identification information of the tractor-trailer driver.

The onus of proof was on the Plaintiff. For his claim to succeed, he would have to prove that an unidentified driver existed and that it caused the accident. Justice Lederman found that the burden of proof had not been satisfied due to the unreliability of the Plaintiff’s version of the accident. The Plaintiff provided the following conflicting evidence:

– When the police officer asked the Plaintiff whether there was any contact between his vehicle and the tractor-trailer, the Plaintiff appeared to first respond “No” but then changed his answer to indicate that there was contact between the two vehicles.

– The Plaintiff reported to State Farm on February 10, 2010, that there was impact between the tractor-trailer and the front left side of the Plaintiff’s vehicle.

– The Plaintiff testified at his discovery that this was a rear-end collision.

Unfortunately, the Plaintiff was unable to explain the different versions due to many capacity deficits at the time this motion was heard. Further, the passenger in the Plaintiff’s vehicle made no mention of there being any contact between the two vehicles, was uncooperative with the investigation and did not provide any statements or evidence on the motion.

On the totality of the evidence, Justice Lederman found it was just as reasonable to conclude that the Plaintiff was solely responsible for the accident as he may not have been fully attentive and was operating his vehicle at an unsafe speed in the weather conditions. The evidence from the Plaintiff was conflicting and not reliable and there was no probative evidence sufficient to satisfy the burden on the Plaintiff to show on a balance of probabilities that any fault could be found on the part of the tractor-trailer driver or that he was even involved in it. Accordingly, summary judgment was granted and the Plaintiff’s action was dismissed.

Proving the liability of an unknown driver is challenging. These types of personal injury claims are vulnerable to a dispute from the insurance company. That there be some physical evidence (outside of the Plaintiff’s self-report) that is in line with the Plaintiff’s version of events is critical.


Is jumping into a Lake from a Truck an Auto Accident for the purpose of Accident Benefits?

An accident is defined under Section 3(1) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”) as:

an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.

Keeping this definition in mind, let’s say one is doing “cannonballs” by running and jumping from the box and tailgate of a parked pick-up truck into a lake. Does this qualify as an “accident” under the Schedule? According to Arbitrator Jeff Musson in the recent Financial Services Commission of Ontario decision, Roberts v. Intact Insurance Company it does.

In the early morning hours of August 13, 2011, Malaya Roberts (the Applicant) and four others used the box and tailgate of Michael Kelly’s pick-up truck to run and jump into Sand Lake (near Manitouwadge, Ontario) doing “cannonballs”. Mr. Kelly had backed his pick-up truck onto the beach, to the edge of the lake with the tailgate extending over the water. However, the rear tires of his truck became stuck in the sand; using a rope and his pick-up truck Craig Chabot towed Mr. Kelly’s truck a couple of feet forward. Mr. Kelly’s truck remained backed up to the lake, with the engine off but music playing out of the truck’s stereo.

The headlights from Mr. Chabot’s truck provided some light. However, because it was in the early morning hours, the bottom of the lake was not visible from the edge of the lake, making it difficult to judge the depth of the lake.

When it was the Applicant’s turn to jump into the lake the others did not witness how she entered the water nor does the Applicant remember how she entered the water. Based on her injuries and where she was last observed standing up in the box of the truck, Arbitrator Musson concluded that it is within the balance of probabilities that Ms. Roberts had jumped into the water from the tailgate of the pick-up truck in a similar manner to the others in the group that night. But, it was determined that after jumping into the lake, the Applicant landed in water that was approximately one foot in depth.

As a result, Ms. Roberts was catastrophically injured sustaining a complete (ASIA A) cervical spinal cord injury C5-C6, secondary to traumatic C5-C6 fracture-dislocation, rendering her a quadriplegic. She sought accident benefits from the truck owner’s insurer, Intact Insurance Company (“Intact”), who disputed whether the incident was an automobile accident as defined under the Schedule.

In order to determine if an accident occurred, Arbitrator Musson looked at the two part test (Purpose Test & Causation Test), as established by the Supreme Court of Canada in Amos v. Insurance Corp. of British Columbia. Part One of the Test relates to the Purpose or Use: Did the incident arise out of the use or operation of a vehicle in the ordinary and well-known activities to which vehicles are put? Part Two of the Test relates to Causation: Was the use or operation of an automobile a direct cause of the injuries?

There were a number of cases Intact relied upon in order to provide relief from paying benefits to the Applicant. Arbitrator Musson distinguished these cases and concluded that the Applicant passed the Purpose & Causation Test as follows:

• There was no intervening occurrence between the Applicant disembarking from the tailgate of the pick-up truck and landing in the water. The last activity before hitting the water was disembarking from the truck which passes the ordinary use test;
• There was not a third party act such as someone pushing her into the water;
• Ms. Roberts was not on the hood of the truck; she was in the bed of the truck and was using the truck bed in a recreational manner which is an ordinary use. She jumped from the truck bed into the lake;
• The vehicle was not being “radically changed”; it was being used in a manner that is consistent with how it was designed; and
• Automakers are promoting the use of trucks for recreational purposes by installing accessories in a pick-up truck box such as cup holders for people to use. The context in which the incident occurred is tied directly to the recreational use of the bed of the pick-up truck.

Arbitrator Musson also looked at parking and disembarking and concluded that as long as an individual is exiting a vehicle, there are no limitations in terms of where they can exit. Further, disembarking can occur with an individual stepping out of a vehicle or rolling out of a vehicle or in this case hopping/jumping out of a vehicle repeatedly. For example, when a person is retrieving multiple items out of a pick-up truck, causing an individual to embark and disembark multiple times. In addition, there is no provision that states that a person’s insurance coverage is void if an individual disembarks onto one surface as opposed to another. In this case the Applicant disembarked into water which is not prohibited.

Having found the Applicant passed the ordinary use test, Arbitrator Musson moved on to the causation test. In the Applicant’s case, there was no intervening act between disembarking from the tailgate of the pick-up truck and the applicant hitting the water. “But for” the disembarking from the tailgate, the incident would not have taken place. With the evidence submitted, it was a reasonable inference that the pick-up truck was the last object that the Applicant’s body had contact with before hitting the water. Therefore, the Applicant’s incident also passed the causation test.

This decision is a good overview of the ever expanding definition of an accident and the applicable test to determine whether an unusual incident involving a vehicle qualifies as an accident for the purpose of applying for accident benefits.


Inclusion of a Claim against a Plaintiff’s Ontario Automobile Insurer is not enough to create a Real and Substantial Connection to Ontario.

On August 11, 2012, Mr. Westfall was driving his motorcycle near the City of Vernon, British Columbia. Ms. Forsythe was a passenger. They were on a road trip to visit the hot springs. Suddenly, Westfall lost control of his motorcycle and there was an accident allegedly caused by an unidentified driver. Forsythe suffered a severe concussion and brain injury, as well as injuries to her back, head, left shoulder, left elbow and left bicep. Here is where things get interesting. Neither Forsythe nor Westfall had any connection to the jurisdiction where the tort had occurred, British Columbia.

Forsythe was an Ontario resident; Westfall, an Alberta resident. Forsythe was treated for injuries initially in British Columbia and Alberta and subsequently in her home province of Ontario. So, where did Forsythe start her action? Forsythe started her action in Ontario against the driver, Westfall, his Alberta-based insurer, the unidentified driver (“John Doe”), and her own Ontario-based insurer because if the unidentified driver was entirely at fault she could have coverage under her own policy. Not surprisingly, Westfall moved to have the action against him stayed on the basis that the Ontario court lacked jurisdiction over him. But, isn’t the absence of any connection of the parties to British Columbia or Forsythe’s action against her Ontario-based insurer enough to give Ontario courts’ jurisdiction over her entire action? The Court of Appeal in their recently released decision, Forsythe v. Westfall 2015 ONSC 758 did not seem to think so. The Court of Appeal rejected the appellant’s argument that Ontario had jurisdiction simpliciter or that it was the forum of necessity.

The appellant argued that her Ontario automobile insurance policy required that an Ontario court determine issues of liability and damages under section 4(1) of Regulation 676 – Uninsured Automobile Coverage and, therefore, the policy was a presumptive connecting factor (e.g. a contract connected with the dispute made in the province) that satisfied the real and substantial connection test laid out in Van Breda v. Village Resorts Ltd., [2010] O.J. No. 402. Therefore, the court must assume jurisdiction over all aspects of the case, including the claim against Westfall, otherwise the appellant would be obliged to conduct litigation in multiple jurisdictions which would be contrary to Van Breda.

The Court of Appeal did not accept this argument because the appellant sued Westfall in tort only and absent the motorcycle accident she would have no claim against any of the named defendants including her own insurer. In other words, her claim against her insurer arises as a result of a private contract between the appellant and her insurer, and has nothing to do with Westfall. The Court of Appeal relied on Tamminga v. Tamminga, 2014 ONCA 478 and held that there was no nexus between the appellant’s insurance contract and the respondents, and therefore the insurance contract was not a factor that satisfied the real and substantial connection test. The Court of Appeal also relied on Gajraj v. DeBernardo (2002), 60 O.R. (3d) 68 and held that “jurisdiction over claims against extra-provincial defendants should not be bootstrapped by such a secondary and contingent claim against a provincial defendant”. The Court of Appeal also pointed out that these cases did not interfere with the appellant’s right to pursue a claim against her insurer in Ontario.

The appellant and intervener (Ontario Trial Lawyers Association) then argued that if the appellant could not meet any of the four presumptive connecting factors set out in Van Breda, then the Court of Appeal ought to recognize a new presumptive connecting factor based on the following: (i) the appellant’s insurance contract; (ii) the Regulation; (iii) she resides in Ontario; (iv) she sustained damages in Ontario; and (v) she is required to bring actions in two provinces which may give rise to inconsistent awards. Recognizing a new presumptive connecting factor in these circumstances, they argued, would be consistent with the values of order, fairness, efficiency, and comity.
The Court of Appeal rejected this argument too as these were not factors that go into a jurisdiction simpliciter analysis. As Lebel J. noted in Van Breda at para. 82, “[j]urisdiction must … be established primarily on the basis of objective factors that connect the legal situation or the subject matter of the litigation with the forum. …Abstract concerns for order, efficiency or fairness in the system are no substitute for connecting factors that give rise to a ‘real and substantial’ connection…”

Finally, the appellant argued that an Ontario court should assume jurisdiction on the basis of the forum of necessity doctrine, i.e. Ontario should assume jurisdiction to avoid a multiplicity of proceedings and the potential for inconsistent judgments in Ontario and British Columbia. The Court of Appeal did not agree with this argument because for Ontario to accept jurisdiction as the “forum of necessity” the appellant must establish that there is no other forum in which she can reasonably seek relief: West Van Inc. v. Daisley, 2014 ONCA 232, at para. 20, leave to appeal refused, [2014] S.C.C.A. No. 236. The appellant failed to do this as she had pursued a claim against Westfall in British Columbia (presumably to protect her claim from being statute-barred) and she could still continue her claim against her own insurer in Ontario.
The Court of Appeal upheld the stay imposed by the initial motion court decision. An Application for Leave to Appeal to the Supreme Court has been filed. For now, however, it is clear that including a secondary claim against an Ontario automobile insurer is not enough for Ontario courts to assume jurisdiction over the entire action which also includes claims against extra-provincial defendants. The claim for uninsured motorist coverage will be litigated in Ontario, while the tort will be litigated where the accident happened. In the Court’s eyes, it may be inconvenient, but the Plaintiff will have access to justice.

Freda Vanopoulos is an associate at Virk Personal Injury Law with extensive experience in personal injury litigation including motor vehicle accident injuries, statutory accident benefits claims, slip and fall accidents, defective product injuries and long-term disability insurance claims. She can be reached at:

Tel: 905-521-8888
Fax: 905-521-8858


Prejudgement Interest Change is Not Retroactive

Lawyers have been arguing the past several months as to whether the change to the prejudgement interest rate should be applied to claims that occurred prior to the amendment. On January 1, 2015, section 258.3(8.1) of the Insurance Act came into force. The amendment says that the 5% prejudgment interest rate for non-pecuniary losses in motor vehicle accident claims for bodily injury or death no longer applies. Instead, prejudgment interest for non-pecuniary losses is to be calculated using the rate applicable to pecuniary losses, i.e. the bank rate in effect at the end of the first day of the last month of the quarter preceding the quarter in which the proceeding was commenced.

This is significant to those with personal injury motor vehicle accident claims prior to the amendment because the interest you can claim on your general damages for pain and suffering from the date you put the at fault party on notice is significantly reduced. The good news is that a case recently decided that the amendment should not apply retroactively, or to claims prior to January 1, 2015.

In the recent decision, El-Khodr v. Lackie, 2015 ONSC 4766 [El-Khodr] the Court had to decide whether or not section 258.3(8.1) is substantive or procedural law to determine the issue of retrospective application. This was also the issue in the recent decision Cirillo v. Rizzo, 2015 ONSC 2440 [Cirillo], in which the motion judge held that section 258.3(8.1) is procedural and thus applies retrospectively.
The defendants in El-Khodr argued that section 258.3(8.1) is retrospective in its application and they relied on Cirillo. The defendants argued that entitlement to prejudgment interest is substantive law, whereas the measure of the amount (which would include the rate of interest) is procedural.

The plaintiffs argued that statutes do not apply retrospectively unless a legislative intention for retrospective application is express or required by implication and that such an intention is neither express nor implied with respect to the amendment to the Insurance Act.

The plaintiffs cited a number of cases confirming that the right to prejudgment interest is substantive [Consolidated Distilleries Ltd. v. Canada, [1932] S.C.R. 419 at 421; Northern & Central Gas Corp, Ltd. v. Kidd Creek Mines Ltd. (1988), 66 O.R. (2d) 11 (C.A.)].

Toscano Roccamo, J. in El-Khadr agreed with the plaintiffs that Cirillo was wrongly decided. The judge concluded that Cirillo was based on a misreading of the decision, Somers v. Fournier (2002), 60 I.R. (3d) 255 which the plaintiff in Cirillo relied on to argue that the amendment was substantive in nature and thus does not have retroactive effect.

Toscano Roccamo, J. also concluded that Cirillo did not address case law holding that entitlement to a particular prejudgment interest rate is substantive law. The decisions, 306793 Ontario Ltd. v. Rimes (1980), 30 O.R. (2d) 158, Sidhu v. State Farm Mutual Automobile Insurance Company 2014 ONCA 920 (CanLII), and Brown v. Flaharty, [2004] O.J. No. 5278 supported the plaintiff’s position in Cirillo that entitlement to a particular prejudgment interest rate is a matter of substantive law in Ontario and His Honour in El-Khadr saw no reason to depart from these cases.

According to Toscano Roccamo, J., the court in Somers held that the entitlement to prejudgment interest under section 128(1) of the Courts of Justice Act and the ability of the court to vary or deny the award for prejudgment interest under section 130 of the Courts of Justice Act are matters of substantive law. Section 258.3(8.1) of the Insurance Act simply requires a court to award prejudgment interest in motor vehicle accident cases in accordance with sections 128(1) and 130 of the Courts of Justice Act. As such, based on Somers, Toscano Roccamo, J. could not see how the amendment could be considered anything but substantive.

His Honour saw no reason to depart from the Supreme Court’s position in Angus v. Sun Alliance Insurance Co. [1988] 2 SCR 256 that statutes should not be given retrospective operation in the absence of an express or implied intention to that effect.

For now, Plaintiff lawyers can argue based on the well reasoned El-Khodr decision that 5% pre judgement interest applies on claims occurring before the amendment came into force.


Courts can order assessments by non-health practitioners

Whether the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners. The parties in the recent Court of Appeal decision Ziebenhaus v. Bahlieda 2015 ONCA 471 agreed that a vocational assessor is not a “health practitioner” as defined in section 105(1) of the Courts of Justice Act and that there is nothing in the Courts of Justice Act or in the Rules of Civil Procedure, allowing a court to order that a party submit to an examination by a vocational assessor. The issue on appeal was whether the Superior Court of Justice has inherent jurisdiction to order a party to undergo an assessment by someone who is not a “health practitioner”, as defined in section 105 of the Courts of Justice Act. The Court of Appeal has now resolved this debate.

By way of background, the appellant, Alexander Ziebenhaus was injured while skiing on a school trip at the Mount St. Louis Moonstone Ski Resort in February 2001. He suffered a brain injury and claimed, among other things, damages for loss of future income and loss of competitive advantage in the workplace. Ziebenhaus’ lawyer set up a neuropsychological and psychovocational assessment. The assessment report concluded that Ziebenhaus’ vocational potential and ability to pursue competitive work were “guarded”. The respondent, Mount St. Louis Moonstone Ski Resort Ltd. wanted Ziebenhaus to undergo another vocational assessment by an assessor it had chosen. It brought a motion for an order. The motion judge allowed the order. The order was then appealed to the Divisional Court. The Divisional Court affirmed the order and agreed with the motion judge’s ruling that the Court has inherent jurisdiction to order assessments and examinations not specifically addressed by section 105.
The appellants argued that the Divisional Court erred when it affirmed the motion judge’s order because section 105 defines who may conduct an examination and, as a result, the court does not have the inherent jurisdiction to order an examination by someone who is not a “health practitioner”.

The Court of Appeal, however, saw no basis to interfere with the Divisional Court’s decision as that court thoroughly explored the argument that section 105 “occupies the field” and that an order for examination by an individual who is not a “health practitioner” would be contrary to the intent of section 105. The Divisional Court said at paragraph 45:
The only conclusion that can be drawn from these circumstances is that section 105 does not completely “occupy the field” in the sense that it makes no provision for physical and mental examinations that are routinely used in the care and treatment of injured persons, and in litigation, that are conducted by persons who do not qualify as “health practitioners” under section 105. Accordingly, there is a gap in the statutory provisions regarding the entitlement of a party defending an action to require a plaintiff to submit to such examinations.

The Divisional Court ruled that an order for an assessment by an individual who is not a “health practitioner” would not be contrary to the intent of section 105. The Court of Appeal found no error in the Divisional Court’s analysis and conclusion. According to the Court of Appeal, the language of section 105 and Rule 33 is permissive, and they do not state that a court cannot order an examination by someone who is not a “health practitioner”. Inherent jurisdiction, the Court of Appeal stated, should be exercised sparingly and in clear cases, when the moving party demonstrates that it is necessary to ensure justice and fairness. The motion judge in this case concluded that invoking its inherent jurisdiction was necessary “in the interest of fairness”, as it was required for the defendants to meet the plaintiffs’ case. According to the Court of Appeal, the Divisional Court quite properly concluded there was no basis to interfere with the motion judge’s exercise of discretion in this case. This decision is significant as it explains the conditions in which a defence medical examination by a non-health practitioner may be ordered. The focus will be on whether the examination is required to ensure fairness and justice.


Take extra precautions around motorcyclists

With the nice weather  in full swing, riders are excited to bring out their motorcycles.  It is important riders take precautions to stay safe and that drivers on the road take proper care around motorcyclists.

Unfortunately, the motorcycle accidents we work on often involve the most serious and fatal injuries. Unlike cars, trucks and other motor vehicles, motorcycles do not offer any protection to riders in the event of a motorcycle crash. As such, the types of injuries suffered by motorcyclists are often more severe including:

Traumatic brain injuries

Spinal cord injuries

Severe fractures

Scarring or disfigurement

Chronic pain

Wrongful death


If you or a loved one have been injured in a motorcycle accident, call Virk Personal Injury Law for a free consultation to learn what rights you have under the law.


Join us at Up For Debate event

Virk Personal Injury Law is proud to be a partner for the upcoming Up For Debate event scheduled to be held in Hamilton next Wednesday. There’s a federal election on our horizon. Help create dialogue about the issues that are important to women and girls. Click here to register today!


Court decides change to PJI is retroactive

On January 1, 2015, section 258.3(8.1) of the Insurance Act came into force. The amendment says that the 5% prejudgment interest rate for non-pecuniary losses in motor vehicle accident claims no longer applies. Instead, prejudgement interest for non-pecuniary losses is to be calculated using the rate applicable to pecuniary losses, i.e. the bank rate in effect at the end of the first day of the last month of the quarter preceding the quarter in which the proceeding was commenced.

The question before the Ontario Superior Court of Justice in the recent decision, Cirillo v. Rizzo was whether this amendment has retroactive application. The Court held that the new rates apply retroactively.

In Cirillo v. Rizzo, the Plaintiff, a pedestrian, started a lawsuit for injuries sustained when he was struck by a motor vehicle operated by the Defendant. The Plaintiff served the Statement of Claim on January 29, 2007. On March 24, 2014, the Defendant made an offer to settle for $50,000 for all claims plus pre judgement interest commencing from the date the notice of claim was served, i.e. January 29, 2007 up to the date that the offer was accepted. On January 26, 2015, the Plaintiff accepted the offer. In this case, the last day of the quarter preceding the quarter in which the proceeding was commenced was December 31, 2006. Accordingly, the bank rate in effect at that time of 4.5% would apply.

The central argument of the Plaintiff was that the amendment to the Insurance Act was substantive in nature and, therefore, the amendment does not have retroactive effect. The Plaintiff relied on the decisions of Somers v. Fournier and Skinner v. Royal Victoria Hospital.

The Defendant submitted that the amendment is procedural in nature and accordingly does have a retroactive effect. The Defendant argued that the issue respecting prejudgment interest in Somers did not relate to the quantification of prejudgment interest but rather the entitlement to prejudgement interest and held that the former (entitlement) to be substantive in nature and the latter (quantification) to be procedural in nature.

The Defendant also distinguished Skinner wherein the Court was dealing with an amendment to prejudgement interest where the amending statute specifically stated that the amendment in question applies to causes of action arising from the 23rd of October 1989. In the present case, the Defendant, argued, there is no such transitional provision and the legislature intended that the amendment did apply retroactively.

The Court found that the case law supported the position of the Defendant and held that the amendment is procedural in nature and shall be applied retroactively. Therefore, the applicable prejudgement interest rate on the $50,000 is 4.5% calculated from January 29, 2007, the date of service of the Statement of Claim, to the date the Plaintiff accepted the Defendant’s offer to settle, January 26, 2015.

In this case, the difference between the two potential prejudgment interest rates was only 0.5%. However, in more recent motor vehicle accident claims commenced on or after April 2009, the prejudgement interest rate would be around 1.3% which is a significant reduction and will work to the financial detriment of Plaintiffs.


We are proud sponsors of the upcoming Acquired Brain Injury conference

Virk Personal Injury Law is a proud sponsor of the 2015 Hamilton Health Sciences 22nd Annual Acquired Brain Injury Conference.

The conference is scheduled to be held on May 14th and 15th at the Hamilton Convention Centre.

To find out more, visit:

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