Plaintiff Ordered to Attend Second IME

A recent decision highlights the importance of wording correspondence when disputes arise over IMEs.

In Caesar v. Griaznov, 2014 ONSC 4329 (S.C.J.), the plaintiff alleged both physical and psychological injuries.  Defence counsel arranged IMEs with a psychiatrist and a physiatrist.  Plaintiff's counsel advised the plaintiff would attend only one IME of the defendant's choosing.  A clerk in defence counsel's office sent a letter stating the defendant "chose" the psychiatrist.  She later followed up in an email that read as though the clerk assumed the physiatry IME would proceed as well.

Master Muir ordered the plaintiff to attend the second examination.  Since the plaintiff was claiming two distinct types of injury (physical and psychological), fairness dictated the plaintiff be compelled to attend.  There would be no overlap between the two examinations.  There was little unfairness to the plaintiff since there was no trial date pending and a mediation date was several months away.  In contrast, there was the risk of significant unfairness to the defendant who would be required to defend a central element of the plaintiff's claim without the benefit of a current expert assessment.

Master Muir denied the successful defendant costs given the clerk's letter which suggested the defendant had "chosen" only one examination.  The decision on costs seems odd given that Master Muir was satisfied the defendant always intended to preserve her right to a second examination.  Counsel should be alert to the wording used in correspondence relating to disputed IMEs.

Plaintiff Failed to Meet Threshold

The Court of Appeal recently affirmed a trial judge's decision to dismiss an action based on the failure to meet threshold. 

In Jennings v. Latendresse, 2014 ONCA 517 (C.A.), the plaintiff was in a motor vehicle accident in 2005.  The defendant admitted liability.  While the jury was deliberating the judge heard a threshold motion, and ultimately dismissed the action after the jury rendered a verdict.  The jury held that the plaintiff had recovered from her injuries and did not award any amount for general damages or past loss of income, although they valued a loss of competitive advantage at $58,000.

The plaintiff submitted that her diagnosis of chronic pain, by definition, must indicate the injuries were permanent.  The Court of Appeal disagreed.  There was evidence that the plaintiff was improving and continued to improve, her functional abilities showed no impairment, she had returned to her pre-accident employment, her medical examination showed full range of motion, expert evidence stated recurring pain was not caused by the original injury, and pre-accident physical and psychological stressors contributed to the chronic pain but had nothing to do with the injury.  The evidence supported the trial judge's decision the plaintiff did not meet threshold.

One of the arguments made by the plaintiff on appeal was that the jury verdict was inconsistent when it found the plaintiff had recovered from her injuries but awarded an amount for loss of competitive advantage.  The Court of Appeal held that there was nothing inconsistent in finding a loss of competitive advantage but that it was not caused by the accident.

Jennings shows the importance of marshalling the evidence at trial as well as conducting a causation analysis, especially in chronic pain cases.

Limitation to Add Defendants Expired

Issues relating to discoverability can be decided on a motion to amend a claim.

In Garic v. Mack Trucks Canada 2014 ONSC 3103 (S.C.J.), the plaintiff was injured in 2006 while operating a dump truck owned by her husband.  One of the axles gave way, causing her to lose control and roll into a ditch.  Her husband was initially named as an FLA claimant.

In 2012, the plaintiff brought a motion seeking to add her (now former) husband and his company as defendants for failing to maintain the vehicle.  She argued the claim was not discoverable until the named defendants gave evidence on discovery that the owner had not followed proper maintenance procedures. 

The Court dismissed the motion to add defendants, holding that:

[19]           The difficulty with the plaintiff's position is that the case law has established that to discover a claim the plaintiff must only have sufficient facts upon which to support an allegation that there is a cause of action, and it is not necessary for the plaintiff to have discovered complete evidentiary support to make the claim winnable (see Wilkinson v Braithwaite [2011] O.J. No. 1714 (S.C.J.) at para. 32).

The Statement of Claim alleged the named defendants were responsible for "service, inspection and maintenance" of the truck, which was expressly denied in the Statement of Defence.  The plaintiff knew her husband was responsible for maintenance of the truck since the business commenced.  Justice Broad held that the essential facts were either actually known to the plaintiff or at least obtainable with due diligence more than two years since the motion was brought.

The Limitation Period to Commence a Claim under OPCF-44R

The decision in Schmitz(Litigation guardian of) v. Lombard General Insurance Co. of Canada, 2014 ONCA 88 (C.A.) is an important decision on when the limitation period begins to run in a claim under form OPCF-44R, for underinsured motorist coverage.

This matter concerned a motor vehicle accident that occurred on July 19, 2006. The plaintiff had a policy of insurance which included a provision for underinsured motorist coverage. The plaintiff commenced a claim against the defendant driver in June 2007 and a claim against his insurer for underinsured motorist coverage in June 2010. The plaintiff’s insurer brought a motion to dismiss the plaintiff’s claim on the basis that it was commenced after the expiry of the 1 year limitation period set out in section 17 of the OPCF-44R. The plaintiff took the position that section 17 did not apply and the 2 year limitation period set out in section 4 the Limitations Act overrode section 17 of the OPCF-44R. The motions judge accepted the plaintiff’s argument and dismissed the insurer’s motion. The plaintiff’s insurer appealed this decision.

 On appeal, the plaintiff’s insurer conceded that the 2 year limitation period in the Limitations Act applied and overrode the 1 year limitation period in the OPCF-44R. Instead, the insurer asserted that the limitation period began to run when the plaintiff knew or ought to have known that their claim exceeded the Defendant’s policy limits, embodied under section 15 of the OPCF-44R. The insurer argued that this section was not overridden by the discoverability provision under section 5 of the Limitations Act.

 
The Ontario Court of Appeal rejected the insurer’s argument. The court concluded that once it was accepted that the 2 year limitation period set out in the Limitations Act applied so did the discoverability provisions in section 17 of the Act. Turning to discoverability, the court held that this loss was only discovered by the plaintiff after a formal request for indemnification was made to the insurer and the insurer failed to indemnify the plaintiff. Given this finding, the court held that the 2 year limitation period did not begin to run until the day after the demand for indemnification was made to the plaintiff’s insurer under the underinsured motorist provision of the policy.