Decision to order personal injury plaintiff to attend medical examination is interlocutory: Court

A recent Ontario Court of Appeal ruling has found that a decision of the Superior Court to order a personal injury plaintiff to attend a defence medical examination is interlocutory and not under the Court of Appeal’s jurisdiction to hear.

In Wang v. Banton, 2021 ONCA 72, the plaintiff filed an action for personal injury and other damages that he allegedly experienced because of a March 2010 motor vehicle accident involving the defendant. From 2016 to 2017, three case management masters of the Superior Court of Justice of Ontario issued orders directing the plaintiff to attend a defence medical examination, but the plaintiff refused to do so.

The plaintiff initiated an appeal with the Divisional Court from the order of Master Priti Sugunasiri, which required him to abide by the orders of Master Lou Ann Pope and Master Barbara McAfee that he attend such defence medical examination.

In December 2019, Justice Lise Favreau, sitting as a single judge of the Divisional Court, transferred the appeal to the Superior Court. Favreau found that the Divisional Court had no jurisdiction to hear the order appealed because it was interlocutory. The plaintiff did not seek to appeal from this December 2019 decision.

In February 2020, Justice Shaun O’Brien of the Superior Court dismissed the plaintiff’s appeal from an interlocutory order. O’Brien directed the plaintiff to attend a defence medical examination within 60 days of the date of her order. If the plaintiff failed to do so, the defendant could then file a motion to dismiss the plaintiff’s action without notice.

The plaintiff appealed to the Ontario Court of Appeal, while the defendant filed a motion to quash, contending that the appellate court does not have jurisdiction to hear the appeal, or alternatively, that the appellate court should issue an order staying or dismissing the plaintiff’s appeal as frivolous, vexatious or otherwise an abuse of process.

The Ontario Court of Appeal granted the motion to quash the appeal without prejudice to the plaintiff asking for an extension of time from the Divisional Court, and if this extension is granted, asking for leave to appeal to the Divisional Court.

The appellate court said that it had no jurisdiction to hear the appeal because Justice O’Brien’s order was itself interlocutory, given that it did not decide a final issue in the litigation between the parties and given that it dealt with a purely procedural matter. It is the Divisional Court who has the jurisdiction to hear such an appeal. In this case, the time for bringing a notice of motion has long expired, said the appellate court.

The defendant also sought an order to prohibit the plaintiff from bringing further motions in this or other appeals from the same interlocutory order without leave under r. 2.1.02(3) of the Rules of Civil Procedure.

The appellate court, citing Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806, declined to make an order under r. 2.1 of the Rules of Civil Procedure. Here, the defendant’s successful motion to quash for want of jurisdiction was its primary focus and thus the more appropriate procedural vehicle, the appellate court said.