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[26] Given the evidence of the plaintiff at discovery, concerning the injuries sustained in the 2010, 2012, and 2014 motor vehicle accidents, the resolution if any of those injuries, even with the benefit of documentary medical production provided, is not clear. There is no credible evidence to suggest that the injuries sustained in the previous actions resolved prior to the motor vehicle accident on January 5, 2014.
[27] I find production of the transcripts from the examinations for discovery the plaintiff conducted in Action CV-12-449448 and Action 8982-14, is necessary to assess the extent to which the plaintiff’s current complaints overlap with her injury complaints prior to the January 5, 2014 accident. The production of these discoveries is not a fishing expedition as submitted by the plaintiff.
[28] The result is ordered that:
1) the plaintiff produce examinations for discovery with respect to Action CV-12-449448 and Action 8982-14 within 30 days of the release of this endorsement;
2) the defendants pay the cost of production of the transcripts; and
3) the examinations for discovery may not be used for any collateral purpose but their use should be confined to the opportunity to impeach the testimony of plaintiff in these proceedings.
[21] The Moving Defendants have submitted that Dr. Veluri’s examination and subsequent Report were insufficient in scope and did not address all the issues that will be in dispute at the trial of this action. The suggestion is that an assessment by Dr. Gnam is warranted for trial fairness and “leveling the playing field”. However Dr. Veluri was only asked by Economical to opine on the Plaintiff’s Attendant Care Benefit at the time of assessment. There is no evidence put forward on this motion from Dr. Veluri or Dr. Gnam as to why such an assessment by Dr. Gnam is necessary or that Dr. Veluri lacked the qualifications to offer such an opinion on the Plaintiff’s injury. In providing an expert opinion, both Dr. Veluri and Dr. Gnam owe a duty of impartiality to this Court. I was provided with no reason why Economical could not have asked or cannot ask Dr. Veluri to comment on the issues they want Dr. Gnam to comment on now. There is no suggestion that Dr. Veluri is not now available. I do have a concern for a potential abuse of the process here and the potential burden on the Plaintiff of excessive medical examination by the same insurer acting in different capacities. As Justice MacDonald decided in Binns v. Skinner Estate, the Court required that the further medical examination be conducted by one of the previous accident benefits examiners.
[22] Furthermore, at the hearing of this Motion I specifically asked Counsel for Economical why they were requesting that the Plaintiff now be assessed by another psychiatrist rather than being reassessed by Dr. Veluri. I was told that Economical is not alleging that Dr. Veluri is biased in any way. When Dr. Veluri was being retained to do the section 65 assessment it was noted that he had previously treated the Plaintiff and any potential conflict was waived at that time by Economical in order to assess the Plaintiff’s current, not retroactive, entitlement to an Attendant Care Benefit. I was not given any reasons why Dr. Veluri could not also assess the Plaintiff’s retroactive entitlement to Attendant Care Benefits or its quantification, or any other issues requested by the second assessment. In his Report of December 13, 2016, at page 2, “No conflict of interest was identified”. At pages 13 and 14 of his Report, Dr. Veluri acknowledged his duties regarding his opinion evidence. I still fail to see here how it would be inappropriate for Economical to choose a psychiatrist because apparently he may have a conflict by way of previous treatment of the Plaintiff; that certainly did not prevent Economical from choosing Dr. Veluri for the first assessment of the Plaintiff. As well Dr. Veluri has stated that no conflict was identified. Given the volume of material he has already reviewed for his first Report, it would also appear that having Dr. Veluri conduct the second assessment may not jeopardize the August 8 and 9, 2018 Pre-trial Conference.
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Due v. Collings, 2018 ONSC 4003 (CanLII), <http://canlii.ca/t/hsrj7
[1] The moving party defendant, Dr. Aurelie K. Collings (“Dr. Collings”), brings this motion pursuant to Rule 21 of the Rules of Civil Procedure to have the plaintiff’s claim struck for failing to disclose a reasonable cause of action and, additionally, on the basis that the action is frivolous, vexatious and an attempt to re-litigate damages in the plaintiff’s underlying motor vehicle action.
[20] In essence, the claim against Dr. Collings seeks a “top up” as regards the settlement negotiated between counsel for the plaintiff and counsel for the tortfeasor in the motor vehicle accident and accepted by the parties. The action never went to court, there were no findings of fact and there is nothing on which it could be determined that the plaintiff may have received a better or more substantial amount for damages than was negotiated and accepted in the mediation. Again, it would be impossible and highly speculative to assess an amount which may have been able to be negotiated had Dr. Collings produced a report, rather than the second neuropsychologist who was retained.
[21] While this is not an attempt to “re-litigate” the action, as it was never actually litigated, but rather settled at mediation, I find the claim to also be frivolous and vexatious and an abuse of process in the context of the circumstances.
[22] Based on all of the foregoing, I grant the defendant’s motion and order that the plaintiff’s claim as against Dr. Aurelie Collings be struck.