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Scuglia v. RBC Life Insurance Company, 2019 ONSC 1038 (CanLII), <http://canlii.ca/t/hxgvr
19] The medical evidence need not establish with absolute certainty that harm will be suffered. It is sufficient for the evidence to establish that the risk of harm is real. The resistance to attend an examination must not simply be an attempt by the witness to avoid discovery for personal or strategic reasons. There must be a real and serious risk of harm.
[20] In my view, the test to avoid any form of discovery, including by written questions, must be at least as high as that which must be established to avoid oral examination.
[27] Relying upon the vascular malformation diagnosis of Mr. Scuglia’s treating neurologists, Dr. Ghaffar then goes on to provide his view, based on literature of which he is aware, that acute anger or psychological distress may cause a sudden and short increase in blood pressure which could then contribute to an intracerebral hemorrhage in a person with a vascular malformation which could be fatal. Dr. Ghaffar then opined that the stress of an IME could contribute to bleeding of the vascular malformation which, based on its location in Mr. Scuglia’s brain, could be fatal. Such a conclusion, would appear to be outside of the expertise of Dr. Ghaffar as a psychiatrist, even one with experience treating neurological patients. It would appear that Dr. Ghaffar has offered a neurological opinion for which he is admittedly not an expert.
[28] Dr. Dost is a neurologist who provided medical evidence on behalf of RBC Life for this motion. Dr. Dost also relied solely on the medical notes and records of Mr. Scuglia. Having regard to the documented vascular malformation, it was Dr. Dost’s opinion that while it is possible for an intracerebral hemorrhage to occur as a result of a sudden and acute increase in blood pressure, the risk would be very small and non-quantifiable. He would disagree there is a substantial risk of harm or death. Rather, Dr. Dost was of the opinion that if Mr. Scuglia were to undergo examination for discovery, the risk he would suffer physical or neurological damage was “exceedingly low and non-quantifiable”.
[35] It does not appear, based on the medical evidence before me, that compelling Mr. Scuglia to attend an examination for discovery would result in “irretrievable injury”.[4]
[36] Mr. Scuglia has failed to meet his burden to demonstrate that he is unable to attend on an examination for discovery or cross-examination because to do so could cause him to suffer psychological or physical damage. The medical evidence submitted by both parties does not support such a conclusion. There does not appear to be a real and serious risk of harm.