[1] This motion is brought by the defendants pursuant to section 105 of Courts of Justice Act, RSO 1990, c C.43 and Rule 33 of theRules of Civil Procedure, RRO 1990, Reg. 194. The defendants seek an order requiring the plaintiff to attend a defence orthopedic examination with Dr. Terry Axelrod. The plaintiff is opposed.
[11] The defendants argued that in the summer of 2015 they received information regarding a subsequent motor vehicle accident involving the plaintiff that took place in September 2011. The defendants submitted that this new information formed a basis for a second physical examination of the plaintiff by the defendants’ proposed orthopedic expert. I do not agree. Dr. Berbrayer was aware of this second accident when he prepared his addendum report and nevertheless concluded that his original opinion remained unaltered. Dr. Berbrayer did not state that he required a further physical examination of the plaintiff in view of this new information. The defendants have not filed any evidence on this motion from any other physician indicating a second physical examination is necessary. The only evidence filed by the defendants is from a law clerk employed in the office of the defendants’ lawyers.