Travelling from Markham to Mississauga would exacerbate plaintiff's vehicular problems: court
The Ontario Superior Court has ruled that the location of a defence medical examination must be determined by what is convenient and just.
In James v. State Farm Insurance, 2023 ONSC 203, Lynette Dalton James claimed damages from a motor vehicle accident on Queen Elizabeth Way in Hamilton. She alleged physical and psychological injuries because of the accident. The defendant, State Farm Mutual Automobile Insurance, brought a motion requiring James to attend a defence psychological examination with Dr. David Prendergast at the AssessMed head office in Mississauga, Ontario.
James agreed to attend the requested examination on the condition that it proceed in Markham, Ontario, where she resides, rather than in Mississauga. Based on her doctor’s report, she claimed she is dealing with driving anxiety and ongoing pain.
The parties raised the issue to the Ontario Superior Court of Justice, which ultimately ruled that the medical examination should take place at the AssessMed offices in Markham.
The court considered several case authorities stating the principles applicable in determining the location of a defence medical examination. According to the court, there is no general rule regarding the place of the examination, but it should be determined by what is “convenient and just.”
The defendant argued that James failed to present direct evidence of the anticipated effect on her of having to travel by vehicle from Markham to Mississauga and that the court should draw an adverse inference from this lack of evidence.
State Farm also presented surveillance of James showing her riding in a vehicle on various occasions. However, the court pointed out that the surveillance was on suburban residential or commercial streets in Markham, and none was on highways. The court further found that she travelled only for relatively brief periods.
The court also observed that AssessMed’s Markham office is 11 kilometres from James’ home. AssessMed also offers virtual mental health assessments. The court found that Dr. Prendergast had not provided any evidence that he could not examine James at AssessMed’s Markham location.
James’ doctor raised significant concerns regarding her fear of travelling in unfamiliar places and her mental state when undergoing the psychological examination with Dr. Prendergast immediately following a car trip on the highway. The court found that the conditions James would likely encounter while travelling from Markham to Mississauga would exacerbate her vehicular anxiety.
The court said James presented a psychological report from her doctor showing negative consequences to her if she were to travel to Mississauga for Dr. Prendergast’s examination. Still, the defence failed to show why Dr. Prendergast could not cross the same distance to Markham to conduct an assessment. Accordingly, the court ruled Dr. Prendergast should examine James at the AssessMed offices in Markham. The court further said that the defendant has the alternative option of having James attend the psychological examination by videoconference.
