The defence in a medical malpractice case has the right to investigate the plaintiff’s claim. The Rules of Civil Procedure provide the framework for that investigation, including the right to conduct a medical examination of the plaintiff under Rule 33 where the plaintiff’s physical or mental condition is in issue. The right is not unlimited. It is governed by a threshold standard (“good reason” to believe there is substance to the allegation), by Rule 33.02’s procedural requirements, and by a discretionary fairness/necessity/prejudice analysis. Where the defence fails on any of these, the motion will be refused.
Veran v Derbyshire et al, 2023 ONSC 4884, is a useful illustration. The Ontario Superior Court of Justice dismissed a defence motion seeking a neuropsychological assessment of the plaintiff in a medical malpractice case where cognitive impairment was never pleaded, the plaintiff’s life history rebutted any inference of impairment, and the defence had waited nearly eight years from the statement of defence to make the request. The court held that no “good reason” had been established, that the fairness/necessity/prejudice factors weighed against the order, and that granting the motion would prejudice the plaintiff by delaying the scheduled trial.
The case is precedent for several propositions about Rule 33 motions in medical malpractice litigation, particularly the limits on late-stage requests for examinations on theories that were never pleaded.
The substantive case
The underlying lawsuit alleges that the plaintiff was misdiagnosed with cerebral palsy as an infant or child, when his actual condition was a correctable spinal abnormality. Cerebral palsy is a non-progressive disorder of movement and posture caused by injury to the developing brain. A correctable spinal abnormality (a structural lesion in the spinal cord that produces motor symptoms) is a different clinical entity that, if identified and addressed early, can have a meaningfully different prognosis. The substance of the claim is that the failure to identify the spinal abnormality and treat it earlier produced an avoidable disability.
The plaintiff is now an adult with significant physical disability — described in the decision as a ventilator-dependent quadriplegic — but with intact cognitive function. He completed high school through applied studies, was described as adept with computers, and graduated from Durham College with honours. His mother deposed that she has never had any concerns about his cognitive abilities.
These details matter for the procedural ruling. Cognitive impairment was never pleaded by either side. The plaintiff’s damages experts proceeded on the basis that his cognitive function was intact. The case was litigated for years on that basis.
The procedural posture
The procedural history of the motion is doctrinally significant.
- The defence delivered its statement of defence approximately eight years before the motion
- The plaintiff’s expert reports, including the future care cost analysis prepared 12 years before the motion, described the plaintiff as having normal cognitive function
- The plaintiff was examined for discovery first by videoconference (in 2022) and then in person (in April 2023). The videoconference attempts in August and September 2022 were adjourned because of communication challenges related to the plaintiff’s physical condition
- The defence requested a neuropsychological assessment in May 2023, approximately five weeks after the in-person examination
- The trial had been scheduled for April 2024 (an eight-week trial)
The motion was therefore brought:
- Approximately eight years after the statement of defence
- Approximately twelve years after the future care cost report described normal cognitive function
- Approximately seven years after the other parties had been examined
- Approximately nine months before the scheduled trial
The Rule 33 framework
Rule 33 of the Rules of Civil Procedure governs medical examinations of parties. Where the physical or mental condition of a party is in question, the court may order the party to undergo a physical or mental examination by a health practitioner. Rule 33.02 sets out specific requirements for the order, including identification of the examiner, the time and place of the examination, and the scope of the examination.
The threshold for ordering an examination is not automatic, particularly for a subsequent or contested examination. The case law has developed a “good reason” standard: the moving party must show good reason to believe there is substance to the allegation that the party’s condition is in question. Mere speculation, or a desire to investigate an unpleaded theory, is not enough.
Beyond the threshold, the court considers a discretionary cluster of factors: fairness (whether the examination is fair to both parties given the procedural history), necessity (whether the examination is genuinely needed to resolve the issues), and prejudice (whether ordering or denying the examination would unfairly disadvantage either party).
The decision
The motions judge dismissed the motion. Several findings drove the result.
No good reason. Cognitive impairment had not been pleaded by either side. The plaintiff’s documented life history — high school, college graduation, computer proficiency — was inconsistent with any inference of cognitive impairment. The plaintiff’s mother had deposed that she had never had concerns about his cognitive function. The future care cost report from twelve years earlier described normal cognitive function. The court held that there was no good reason to believe there was substance to a cognitive impairment allegation, and indeed that the available evidence supported the opposite conclusion.
The defence’s “surprise” argument was contradicted. The defence had argued that it was unaware of the plaintiff’s communication challenges until the in-person examination. The court rejected this. The plaintiff’s condition (ventilator-dependent quadriplegic) had been documented for years, and the videoconference adjournments had occurred well before the in-person examination. The court observed that “it could not have come as a surprise to the sophisticated defendants and their experienced legal team that a ventilator dependent quadriplegic had communication challenges.”
Distinguished from Klinck v Dorsay. The defence relied on Klinck v Dorsay, 2021 ONSC 6285, where a defence-requested examination had been ordered. The court distinguished Klinck on the ground that, there, the defendants had medical evidence supporting their alternative theory (a genetic cause for the plaintiff’s injuries). In Veran, the defendants had no such evidence — only speculation that there might be cognitive impairment that had not been investigated.
Rule 33.02 requirements were not met. The defence had not identified the neuropsychologist who would perform the examination, and had not explained how the testing would be undertaken for a ventilator-dependent quadriplegic. The court treated this as a separate basis for refusing the order.
Prejudice favoured the plaintiff. The plaintiff had complied with the timetable agreed by the parties for the delivery of expert reports. The defence had not made the request until four months before the deadline for the damages reports and at least six years after the other examinations. Granting the motion at this stage would either delay the trial or compress the plaintiff’s trial preparation. The court treated this as a real prejudice.
The combination of factors meant the motion was dismissed.
The doctrinal lessons
Veran v Derbyshire stands for several propositions about Rule 33 motions in medical malpractice litigation.
The “good reason” standard requires evidence, not speculation. The case is a clear statement that defendants cannot obtain Rule 33 examinations to fish for unpleaded theories of impairment. There must be some evidentiary basis to believe the condition is genuinely in question. The plaintiff’s lived history is part of that evidentiary basis, and where the lived history rebuts the theory, the motion will fail.
Late motions face additional scrutiny. The court did not adopt a hard timing rule, but the procedural history weighed heavily in the analysis. Defendants who wait years to bring a Rule 33 motion need to explain the delay. A request that comes only after the plaintiff has been examined for discovery, and after the trial has been scheduled, is at risk of being treated as procedural opportunism rather than a genuine investigation of the claim.
Rule 33.02 specificity matters. The defence’s failure to identify the examiner and the methodology was treated as a separate ground for refusal. Counsel bringing Rule 33 motions need to come prepared with the specifics: who will examine, where, how, with what accommodations for the plaintiff’s condition.
The plaintiff’s pleaded theory of damages governs the relevant inquiry. Cognitive function was not part of the plaintiff’s damages theory. The defence’s request to test cognitive function was, in effect, an attempt to expand the inquiry beyond the pleaded case. The court held that this is not what Rule 33 is for.
The disability of the plaintiff must be addressed in the motion materials. The court observed that for a ventilator-dependent quadriplegic, the methodology of any neuropsychological assessment requires careful planning. Defendants who do not engage with these realities in their motion materials face additional skepticism.
The procedural case-comment cluster
Veran v Derbyshire fits within a cluster of procedural case comments on this site. Together, these illustrate how procedural and evidentiary issues can determine the trajectory of malpractice litigation.
- Salamaszynski v Michael Garron Hospital: litigation privilege over statements documented during the period before formal litigation
- Algarawi v Berger: quality assurance privilege under QCIPA
- Martin v HPARB: patient privacy and access to records under PHIPA
- Beazley v Johnston: summary judgment and expert evidence qualification
- Veran v Derbyshire (this case): Rule 33 medical examinations of parties
Each of these decisions illustrates a procedural framework that applies before the substantive merits are reached. The cluster is doctrinally useful for counsel screening claims and managing the litigation framework.
Why this case matters
For plaintiffs and their counsel. Defendants will sometimes seek Rule 33 examinations late in the case, including on theories that were not pleaded. Veran is a useful reference for resisting these motions. The relevant arguments are: (1) no good reason to believe there is substance to the alleged impairment, particularly where the plaintiff’s history rebuts the theory; (2) procedural delay between the statement of defence and the request; (3) Rule 33.02 specificity is missing (no identified examiner, no methodology); and (4) prejudice from delaying the trial. The combination is often dispositive.
For defendants and their counsel. Rule 33 motions need to be brought promptly and supported by evidence. Speculation that the plaintiff might have an impairment that has not been pleaded is not enough. If the defence has a genuine theory about the plaintiff’s condition, the motion materials must articulate that theory, identify the examiner, and explain the methodology. Late motions on unpleaded theories are at serious risk of refusal.
For lawyers screening complex catastrophic-injury malpractice claims. The Rule 33 procedural framework is part of the working toolkit. Plaintiff’s counsel should anticipate defence-side motions, particularly in cases involving cognitive function or psychiatric features. Where the plaintiff’s pleaded damages theory does not engage cognitive function, the defence’s options for examination on that subject are limited.
For more on the broader framework of medical malpractice litigation in Ontario, see Suing for Medical Malpractice in Ontario: What You Need to Know and How to Choose a Medical Malpractice Lawyer in Ontario.
Decision Date: August 28, 2023
Jurisdiction: Ontario Superior Court of Justice
