Judge Upholds Master’s Refusal to Order Plaintiff To Undergo IME Involving “Adjunctive Testing”

Scissons v. Lajoie is scheduled to go to trial on May 12, 2008. The action, arising out of a 1999 MVA, has apparently had a long and somewhat tortured life, having been administratively dismissed twice. The amount claimed exceeds the defence policy limits. As a result of today’s decision, the defence might have to scramble in order to marshal evidence for trial.

The defendants had obtained two independent medical reports (“IMEs”) in 2003, from an orthopaedic surgeon and a psychiatrist. According to the motions judge, Madam Justice Giovanna Toscana Roccamo, the plaintiff’s claim “evolved” over time, such that the plaintiff now claims to suffer from chronic pain that has given rise to a total inability to work or to carry out domestic duties.

The defence now wants a further medical examination to be done by Dr. Matthew Faris, a Kingston physiatrist.

In response to a question from defence counsel, Dr. Faris told her that “in order to provide any opinion he required an in-person assessment of Ms. Scissons, a comprehensive vocational rehabilitation assessment and a functional capacity evaluation including an in-home assessment by an occupational therapist.”

Counsel for the plaintiff took the position that, as a result of the exchange of correspondence between Dr. Faris and the solicitor for the defendants, the plaintiff would only attend an IME with a physician other than Dr. Faris. The plaintiff’s solicitor contended that the exchange “suggested he [Dr. Faris] could no longer be considered objective in terms of the scope of his assessment.”

The defendants moved before Master Beaudoin, for an order under r. 33 of the Rules of Civil Procedure, requiring the plaintiff to attend both the examination by Dr. Faris and what is referred to in the decision as the “adjunctive testing” that Dr. Faris had requested. The Master dismissed the motion and the defendants appealed to Justice Toscano Roccamo.

The appeal was also dismissed.

Her Honour did a rather extensive review of the jurisprudence relating to the standard of review on an appeal from a Master’s order. She summarized the results of her analysis this way:

What I distill from the caselaw is that the applicable standard of review turns on the particular facts of each case, having regard for whether or not the decision is an exercise of discretion, and whether it is dispositive of any of the issues raised in the proceedings.  If it is not, a Master’s decision is reviewed by way of simple appeal, entitled to extreme deference unless it is clearly wrong or, as expressed in Housen is based on a palpable and overriding error.


Turning to the merits of the case, both the Master and Justice Toscano Roccamo faulted the evidentiary foundation that the defence had laid in support of the requested order:

 In the circumstances before Master Beaudoin, Ms. Scissons was willing to attend before any other duly qualified physiatrist nominated by the defendants other than Dr. Faris, and even to consider attending upon adjunctive testing if the appropriate evidentiary basis was established by an affidavit from such a physiatrist or a provisional opinion following assessment of Ms. Scissons setting out the need for any adjunctive testing.  Master Beaudoin had no evidence before him upon which to conclude that Dr. Faris’ involvement was a matter of anything other than strategic importance to the defendants and could not have concluded on the material before him that Dr. Faris’ particular involvement was necessary to determine an issue central or dispositive of the case before him.  As such, Master Beaudoin’s decision rested on an exercise of discretion based on fairness which is entitled to deference, and which should not be reversed unless I conclude that it is clearly wrong or reflects palpable and overriding error….I cannot conclude that Master Beaudoin’s decision reflects overriding and palpable error disposing of a vital issue between the parties which justifies a rehearing and substitution of his decision for mine. [sic, probably should read, “my decision for his”.]


This entry was posted in Discovery, Insurance News, Practice and Procedure. Bookmark the permalink.