[6] Mr. Babcock duly attended the physical examination by Dr. Watson on 8 September 2016 in Toronto.
[8] On 13 September 2016, a law clerk with the solicitors for Wawanesa received a telephone call from Dr. Watson’s assistant, who advised that Dr. Watson would not be providing a report due to not being able to meet the timeline and “unforeseen” circumstances.
[9] Despite immediate efforts to due so, Wawanesa’s lawyer was not able to speak to Dr. Watson until 16 September 2016. In that conversation, Dr. Watson advised that he was overwhelmed with work, that a number of issues had arisen which meant that he could not work at full capacity, that he had too much on his plate, that it was a very complex file and that he could not understand why the short deadline was imposed.
[10] Wawanesa’s lawyer asked Dr. Watson to propose a later date for delivery of the report. Dr. Watson responded that he was so overwhelmed that he could not even predict when he might be able to complete a report and that Wawanesa should have the plaintiff seen by another neurologist. Wawanesa’s lawyer requested that Dr. Watson send a letter to that effect. Dr. Watson duly did so. His letter of 16 September 2016 states:
I regret that due to the complexity of this matter, the extensive amount of medical documentation and the very short turnaround time required, I am unable to provide a report on Mr. Reggie Babcock.
[11] Further attempts to have Dr. Watson reconsider were unsuccessful. Accordingly, Wawanesa’s solicitor sought an appointment with another neurologist, Dr. Gordon Sawa. The first available date that Dr. Sawa was able to offer for a medical assessment is 11 January 2017. Dr. Sawa has committed to delivering a report by 31 January 2017 if the assessment on 11 January 2017 goes ahead.
[12] The motion before me, brought by Wawanesa, seeks an order requiring the plaintiff to attend a physical examination by Dr. Gordon Sawa in Mississauga on 11 January 2017 at 10:00 a.m., with transportation to be provided by Wawanesa (Mr. Babcock resides in Belleville).
[28] I have concluded that the plaintiff should be required to attend the examination by Dr. Sawa. Dr. Sawa’s report must be delivered on or before 31 January 2017. The sooner the better. If, for whatever reason, Dr. Sawa’s report is not delivered by 31 January 2017 then, the subject to the discretion of the trial judge, Dr. Sawa’s evidence will not be permitted to be introduced at trial (I realize that Ray J. made a similar order with respect to the evidence of Dr. Watson, but what transpired after Ray J. made his order is unlikely to be repeated).