https://www.canlii.org/en/on/onsc/doc/2014/2014onsc2550/2014onsc2550.html
[17] The novel legal issue raised by the parties to this motion is: “What is the appropriate test for the court to determine whether to exclude a health practitioner from conducting a defence medical assessment?” That issue requires a consideration of the appropriate test for the court to order that a defence medical assessment be videotaped or audiotaped, which is also relevant to the Plaintiff’s alternative submissions.
[18] The Plaintiff submitted that the court should exclude a health practitioner from conducting a defence medical assessment when it finds, on the balance of probabilities, that the proposed assessor is not competent, biased or that there is a reasonable apprehension of bias.
[19] The Defendants submitted that the court should exclude a health practitioner from conducting a defence medical assessment only when it finds, on substantial and compelling reasons or perhaps even a higher threshold, that the proposed assessor is either not competent, biased or that there is a reasonable apprehension of bias.
[20] For the reasons I discuss below, I accept the Defendants’ position and find that at a minimum, substantial and compelling reasons are required before the motions court can exclude a health practitioner from conducting a defence medical assessment.
[21] However, while I discuss the applicable legal test since the issue is raised by the parties and has not been directly considered in the case law, the appropriate test to exclude a health practitioner from an assessment is not determinative in this case. Even on the Plaintiff’s proposed “balance of probabilities” test, the Plaintiff has not led evidence to satisfy the court that Dr. Reznek is not competent or would be biased or present a reasonable apprehension of bias if he were to conduct the medical assessment. I address the evidentiary issues later in these reasons.