Avoiding Attendance at Examination for Discovery – Case Summary of Lalousis v. Roberts

In some cases, a party can avoid attending at an examination for discovery due to medical reasons.  However, it is very difficult to obtain the permission of the Court to do so. Recently, Master Muir set out the general test for when a plaintiff can avoid such an attendance (Lalousis v. Roberts, 2013 ONSC 5897). In Lalousis, the plaintiff was involved in two separate car accidents, in which she alleged that she suffered serious, grievous and permanent physical and psychological injuries resulting in $4,000,000 in damages. Relying uponBotiuk v. Campbel, [2011] ONSC 1632 (Sup. Ct.) and Kidd v. Lake, [1998] O.J. No. 4078 (Ont. Gen. Div.), Master Muir reiterated some general principles, as follows: 1)      a party’s discovery rights should…only be limited in the rarest of cases.  The threshold to be met is a high one (at paragraph 7); and 2)      a party seeking to avoid attendance at an oral examination for discovery for medical reasons has the onus of providing the court with “persuasive” or “compelling” evidence of a real potential that the party could suffer psychological damage…a temporary exacerbation of a party’s condition is not a sufficient justification…( at paragraph 8). Instructive of the threshold that must be met, Master Muir held that it is insufficient for the Plaintiff’s physician to opine that attending at an examination for discovery could be “psychologically detrimental.”   In essence, the evidence must demonstrate that the detriment would be permanent, or perhaps, at least last for an extended period of time (see paragraph 11 of Lalousis).