Bars to Success: Importance of s. 53.03 Timelines and Plaintiff Consent to Medicals
Feb 18, 2020
The decision in Coll v. Robertson, 2020 ONSC 383 (“Coll”) stems from a motor vehicle that occurred on May 29, 2013. In Coll Justice Grace grapples with counsel from both sides regarding their adherence (or lack thereof) to Rule 53.03(2.2) of the Rules of Civil Procedure regarding timing of expert reports. At play also were refusals by the Plaintiff to sign questionnaire(s) and/or consents for Defence medical examinations conducted by a psychiatrist and psychologist, later expanded to include a psychiatric assessment.
Of concern was the observance to Rule 53.03(2.2), requiring parties to set a deadline for expert reports within sixty days once the matter has been set down for Trial. Justice Grace emphasizes that the “…provision is not permissive. It is mandatory.” As such, these deadlines should be in place by the time the matter reaches Assignment Court when employed correctly.
The result of such failures often leads to inefficient pre-trials, trials, which are routinely adjourned, interrupted, or exceed their time lengths, costing valuable time and effort across the board. In the case at bar, no schedule was in place for these expert reports, and Justice Grace imposed an initial endorsement prior to this Motion, creating a timetable to move the case along.
At the time of that initial endorsement, counsel for the Defendant sought to have the Court compel the Plaintiff to attend examinations with the aforementioned experts, wanting it written into Justice Grace’s endorsement. That was not done as Justice Grace noted a lack of adherence by both parties to Rule 53.03(2.2).
The matter of consent and forcing the Plaintiff to attend upon the Defence experts was considered by Justice Grace after an extended look at the developed jurisprudence. The case of Chapell v. Marshall Estate,  O.J. No. 3009 (S.C.J.) found “[t]here is no requirement in s. 105 of the [Courts of Justice Act] or in Rule 33…requiring an injured plaintiff to sign an authorization, consent or agreement when attending a defence medical examination.”
Justice Grace observed that Tanguay v. Brouse,  O.J. No. 4711 (S.C.J.) went a step further and extended it to include a document entitled “Background Information”. The Plaintiff in the present case urged Justice Grace to follow this line of developed reasoning.
However, Justice Grace did not follow this line of reasoning, finding “the document entitled ‘Background Information’ falls into that category of document, the decision in Tanguay is patently and seriously flawed. It fails to refer to, let alone analyze, s. 105(5) of the Courts of Justice Act which was then and still is, in force.” This section of the Act is “clearly worded and dispositive. It imposes an obligation to provide information to the extent ‘relevant to the examination’”.
Therefore, Justice Grace continued, Plaintiffs “cannot simply refuse to complete any portion of a questionnaire provided by a health practitioner” as outlined in section 105(5) of the Courts of Justice Act.
Further, when considering the notion of consent, Justice Grace gives caution to those wishing to rely on Chapell and Tanguay, noting that they “cannot stand for the proposition that s. 105 of the Courts of Justice Act and rule 33 of the Rules of Civil Procedure combine to create a complete code.”
While such examinations can be considered ‘intrusive’, the Plaintiff launched an action asking for significant amounts of money, making the extent of her injuries an issue. Expert reports of her own were created at that point, with her solicitors declining the request that she execute documents requested by the health practitioners proposed by the moving party. No explanation was given at any time. As such, “[t]here is nothing in the factual record before me that provides any reason for the plaintiff’s refusal to complete a questionnaire or execute a consent.”
The Plaintiff was therefore ordered to complete a questionnaire and execute a consent if requested by a health practitioner conducting an examination under s. 105 of the Courts of Justice Act and rule 33 of the Rules of Civil Procedure.
As a final note, Justice Grace offers a warning that the “suggestion an expert retained to provide a Rule 53 report should be satisfied with the Court’s bare bones Order or the parties’ consent defies, with respect, common sense.”
The decision in Coll v. Robertson serves as a reminder of the importance of expert report timelines, a necessary element to the case moving forward in our bustling legal system. While the experience of expert assessments may prove intrusive for a Plaintiff, this does not immediately bar such actions from being conducted in the absence of answers to irrelevant or unrelated questions on behalf of retained medical personnel.