Jajjo And Danno v. Singh, 2021 ONSC 4269

• Published date: 15 July 2021
• Subject Matter: Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Trials & Appeals & Compensation, Personal Injury
• Law Firm: McLeish Orlando LLP
• Author: Mr Nick Todorovic and Cody Malloy (Summer Student)

In a June 14, 2021, Superior Court decision, Master Graham held that the defendant was responsible for the costs of cancelled defence medical examinations of the plaintiffs after the plaintiffs refused to sign the medical consent forms.

After the plaintiffs suffered injuries from a motor vehicle collision, the defendant arranged for the plaintiffs to undergo defence medical examinations by Dr. Erin Boynton, an orthopaedic surgeon. Before arriving at the doctor's office, plaintiffs' counsel had advised them not to sign any documentation. Upon arrival at the examining doctor's office, the plaintiffs were asked to sign medical consent forms. The plaintiffs attempted to contact their counsel but were unable to do so, and the plaintiffs were asked to leave. Defence counsel later received invoices for the cancelled appointments, and the defendant brought a motion to recover these costs from the plaintiff.

The defendant argued that the plaintiffs should not have been surprised by having to sign medical consent forms for the examination. ¹ The defendant further argued that the plaintiffs had previously signed consent forms for accident benefits psychological examinations, the doctor's form was straightforward, the doctor was required to sign an Acknowledgment of Expert's Duty (Form 53), and the plaintiffs' counsel should have advised the plaintiffs they would be required to sign a medical consent form. ²

The plaintiffs argued that they had never attended defence medical examinations before, and they thought the examinations were being done for the benefit of the defendant, and they wanted legal advice before signing the medical consent forms. ³ The plaintiffs felt that the brevity of the doctor's medical consent form was irrelevant because of their unfamiliarity with the adversarial litigation process, and the examining doctor could have forwarded the consent forms to the plaintiffs' counsel for review beforehand. ⁴

Master Graham pointed to the relevant section of the Courts of Justice Act for the case:

[23] The relevant Courts of Justice Act provisions with respect to defence medical examinations are s. 105 (2) and (5):

105(2) Where 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.

(5) Where an order is made under this section, the party examined shall answer the questions of the examining health practitioner...