SUPREME COURT OF NOVA SCOTIA Citation: Howatt v. Chandler, 2016 NSSC 216. Between: Paula Kinley Howatt, Eric Howatt, and Johnathan Howatt

Transcription

1 SUPREME COURT OF NOVA SCOTIA Citation: Howatt v. Chandler, 2016 NSSC 216 Date: Docket: Ken No Registry: Kentville Between: Paula Kinley Howatt, Eric Howatt, and Johnathan Howatt v. Jennifer Chandler Plaintiffs Defendant LIBRARY HEADING Judge: The Honourable Justice Peter P. Rosinski Heard: August 8, 2016, in Halifax, Nova Scotia Final Written August 26, 2016 Submissions: Written Decision: September 14, 2016 Subject: Summary: Issues: Civil Procedure Rule 21/ IME (Independent Medical Examination) jurisdiction of the court to order IME outside Nova Scotia The defendant sought to have the court order that the Nova Scotia resident/plaintiff attend for an IME and testing in Toronto, Ontario. The plaintiff objected claiming the court had no jurisdiction to make such order, and even if it did, that it was not reasonable to do so. Incidental issues involving what expenses the defendant might be responsible for if the plaintiff is ordered to attend at Toronto, Ontario. (1) Does the court have jurisdiction to order a party to attend for an IME/testing outside Nova Scotia but within Canada?

2 Result: (2) Should the court order the plaintiff to attend for an IME/testing in Toronto, Ontario? (3) In the particular circumstances here, should the plaintiff be reimbursed for her husband accompanying her as an observer pursuant to Rules and 21.06(3)? (4) If the court orders that the plaintiff attend in Toronto for the IME/testing, what conditions, if any, is it appropriate to impose? (5) What order, if any, should the court make regarding costs? (1) The court has jurisdiction to order the resident party to attend outside Nova Scotia, but within Canada, for an IME/testing; (2) The court concluded the defendant s choice of specialists should be respected, as it is a reasonable choice, even though they reside in Toronto, Ontario (3) The defendant is not responsible to compensate the plaintiff for the accompaniment of her husband either under Rule or 21.06(3) (4) The plaintiff will attend at the offices of the doctors in Toronto on January 19, 2017, and for that purpose, may fly to Toronto on January 18, and return on January 20. The defendant will be responsible to compensate the plaintiff for all her reasonable expenses associated therewith in accordance with the Rules. No conditions were otherwise imposed. (5) No costs were awarded in light of the novel issue and unsettled jurisprudence. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.

3 SUPREME COURT OF NOVA SCOTIA Citation: Howatt v. Chandler, 2016 NSSC 216 Date: Docket: Ken No Registry: Kentville Between: Paula Kinley Howatt, Eric Howatt, and Johnathan Howatt v. Jennifer Chandler Plaintiffs Defendant Judge: Heard: Final Written Submissions: Counsel: The Honourable Justice Peter Rosinski August 8, 2016, in Kentville, Nova Scotia August 26, 2016 Bernie Conway and Greg Sampson, for the Plaintiffs Wendy Johnston, Q.C., and Victoria Crosby for the Defendant

4 Page 2 By the Court: Introduction [1] The defendant seeks that the plaintiff, Paula Howatt, who lives in Kentville, Nova Scotia, attend for the purposes of an IME in Toronto, Ontario, Canada. The plaintiff is prepared to attend for the purposes of an IME anywhere in Nova Scotia, Canada. The defendant has made a motion to have this court order that the plaintiff attend in Toronto, Ontario. I conclude that the plaintiff must attend, provided the defendant satisfies certain conditions. Background [2] The plaintiff was significantly injured in a motor vehicle accident in Kentville, Nova Scotia on October 27, She is a member of the Bar in Nova Scotia. Her husband, Dr. Eric Howatt, is claiming damages arising from the injuries to his wife. He is a senior orthopedic surgeon, and presently Regional Chief of Surgery for the western zone of Nova Scotia, and co-chief for the Province of Nova Scotia under the new District Health Authorities regime. [3] The plaintiff received significant injuries in the accident which she recounted as follows: after a very long and painful failed rehabilitation attempt for many months she took a leave of absence from her work and had an operation on June 26, 2012, to fuse C5 6/C6 7 vertebrae of her neck, with allograft, which rebuilt her neck with bone from the bone bank, and insertion of a stabilizing metal plate; over the last number of years since the surgery, and particularly in the last year, she has had slow but significant recovery; she continues to experience pain on a daily basis at varying degrees now mostly dependent on her activity level; she continues to have radicular symptoms in both her hands. [4] The plaintiff has stated in her affidavit that the effects of these injuries include: she has experienced concussion-type symptoms and finds places, like airports, that are noisy, have bright lights and congestions of people, create headaches and sometimes dizziness; she uses daily aids such as a magic bag which can be heated or cooled accordingly, and a water pillow for sleeping and a hot tub, which help relieve her pain level; long periods of being seated in a car, airplane or chairs; and the stress of the travel to unfamiliar surroundings tend to exacerbate her symptomology.

5 [5] The central questions that arise in this motion include: Page 3 1. In an action being litigated in Nova Scotia, does a judge of the Nova Scotia Supreme Court have the authority to order a plaintiff to attend for an IME [Independent Medical Evaluation] outside of Nova Scotia, but within Canada? 2. Similarly, does a judge of the Nova Scotia Supreme Court have the authority to order a plaintiff to attend for an EMG test in support of the IME outside of Nova Scotia, but within Canada? 3. Should the court order Mrs. Howatt attend for an IME and EMG related testing in Toronto Ontario? 4. The plaintiff has chosen her husband to accompany her to the IME and EMG testing pursuant to Civil Procedure Rules and 21.06(3), and seeks reimbursement for her husband s travel expenses and lost earnings during his absence from his employment in Nova Scotia; is the defendant responsible for these expenses and lost earnings? 5. If the court orders that the plaintiff attend in Toronto for the IME and EMG testing, what conditions, if any, is it appropriate to impose? 6. What order, if any, should the court make regarding costs? 1. The authority of the court to order an extra-provincial IME and EMG testing [6] Our Civil Procedure Rules were dramatically rewritten, and in force on January 1, Therefore, earlier precedents relying on the older rules have limited applicability to present cases. Nevertheless, the principles underlying the old and new rules often reflect similar objectives. [7] Of particular importance here is our Rule 21. It reads: Scope of Rule 21: A judge may order a medical examination or test, in accordance with this Rule. Medical examination

6 21.02 A party who, by a claim, defence, or ground, puts in issue the party s own physical or mental condition may be ordered to submit to a physical or mental examination by a medical practitioner; The party who puts their own physical or mental condition in issue has the burden to satisfy the judge that the party should not be examined; A party who puts in issue the physical or mental condition of another party may make a motion for an order that the other party submit to a physical or mental examination by a medical practitioner, and the party must satisfy the judge on all of the following: (a) the party has, by a claim, defence, or ground, put in issue the other party s physical or mental condition; (b) the claim, defence, or ground putting the other party s condition in issue is supported by evidence; (c) the examination may result in evidence that proves or disproves the claim, defence, or ground; A party being examined under an order must co-operate in the examination, including giving answers to questions asked by the practitioner as part of the examination; An order for a medical examination must include a description of the purpose of the examination and a requirement that the party to be examined attend for the examination, including the name of the practitioner and either the time, date, and place of the appointment or a method to determine a time, date, and place for the examination; The order may contain any other necessary provisions, including any of the following requirements: (a) the party to be examined undergo a test and deliver evidence of the results to the practitioner before the examination; (b) a person deliver relevant documents to the practitioner before the examination; (c) the practitioner, by a deadline, deliver an expert s report to the party who obtains the order; (d) the party receiving the report, by a deadline, deliver a copy to each other party. Number of medical examinations A judge may order more than one examination of the same party if different physical or mental conditions in issue pertain to different medical specialities, the same condition clearly calls for opinions from different specialists, or justice will be served by permitting an additional examination. Who may attend an examination Only the party, the examining practitioner, the practitioner s medical assistants, and one qualified medical practitioner appointed by the party as an observer may attend the examination, unless the parties agree or a judge orders otherwise. Page 4

7 Medical report (1) A practitioner who completes an examination must deliver an expert s report, conforming with Rule 55 - Expert Opinion, to the party who obtains the order. (2) The party who obtains the order must immediately deliver the report to all other parties. Medical test (1) A judge who is satisfied on both of the following may order a party to undergo a test recognized by medical science, to provide a sample or permit a sample to be taken from the party s body for use in a test recognized by medical science, or to both undergo a test and provide a sample: (a) compliance with the order will likely lead to relevant evidence; (b) the value of the evidence outweighs the inconvenience or embarrassment that would be caused to the person giving the sample or undergoing the test. (2) An order for a medical test must include a requirement that the party undergo the test, provide the sample, or permit the sample to be taken, and include all of the following information: (a) the name and address of the person to whom, or the address of the place at which, the party must report; (b) a method by which the time and place for taking or providing the sample, or administering the test, is to be determined. (3) The party is entitled to have one person accompany the party, as an observer, when the sample is provided or taken, or the test is administered. (4) The order may contain any other provisions, including any of the following requirements: (a) a person deliver relevant documents for the use of the person testing a sample or administering a test; (b) a person administering a test, or taking a sample, exclude persons except as permitted in the order; (c) by a deadline, the person administering the test or taking the sample, or another person involved with the testing, deliver a report of the results of the test to the party who obtained the order; (d) the party receiving the report, by a deadline, deliver a copy to each other party. (5) A party who intends to prove the results of a test as an expert opinion must deliver an expert s report in compliance with Rule 55 - Expert Opinion. Information and reports A party may provide any information, including information disclosed in the proceeding, to a medical practitioner examining a party, or a person testing a party or taking a sample. Page 5

8 Cost of medical examination and test (1) The party who obtains an order for an examination or test must pay all of the following expenses: (a) professional and technical charges, except the charges of a person attending as an observer for the party being examined; (b) reasonable costs of the party being examined or tested to attend the examination or test, or to provide a sample; (c) wages lost by the party as a result of attending an examination or test, or providing a sample. Page 6 [8] The parties have provided no reported cases that specifically address this issue, either under the old or new Rules. 1 [9] The defendant has provided no specific evidentiary basis for why she insists that Drs. Richard Perrin [a neurosurgeon with St. Michael s Hospital in Toronto] and Gyl Midroni [also of Toronto and who Dr. Perrin has recommended to conduct the testing] see Mrs. Howatt for the examination and electro-physiology studies, EMG nerve conduction studies with a neurology consult. The defendant argues that she is entitled to her choice of IME doctor, and no persuasive grounds have been identified in the evidence why that choice should be overruled. [10] Under the old Rules, the party requesting the IME was entitled to have that examination conducted by a medical expert of their choice provided that the request was reasonable in all the circumstances e.g. Wilneff v. The Maritime Life Assurance Co., 2003 NSSC 218 per Edwards J.; and Grant v. Foster, [1992] NSJ No. 102 (CA), per Jones JA. [11] Mrs. Howatt is prepared to be examined by Dr. Perrin in Nova Scotia. She is similarly of the view that the EMG testing, can be done in Nova Scotia as well, and provided to Dr. Perrin in advance of his conducting his examination in Nova Scotia. She relies in part on the decision of Justice Arnold in Goodwin v. Lunn, 2016 NSSC 165, where the defendant insisted that the plaintiff attend for a second IME in a personal injury claim. Justice Arnold concluded that the second IME request was reasonable: 27 By bringing an action against [the defendant] for personal injury and claiming damages for injuries she says were caused by [the defendant], [the plaintiff] has removed her own right to privacy regarding her physical condition in relation to the injuries claimed. Denying [the defendant] the opportunity to obtain an IME 1 While in the context of discovery examination, I did locate one decision under the old Rules Tidgwell v. Browning-Ferris Industries Ltd. (2000) 186 N.S.R. (2d) 139 (NSSC), per Goodfellow J.

9 from an orthopedic surgeon would provide [the plaintiff] with an unfair and evidentiary advantage since [the defendant] would not have a reasonable opportunity to fully respond to the claim. Of course, [the plaintiff s] personal privacy, as well as her physical and psychological integrity, must not be breached lightly. Personal privacy, along with physical and psychological integrity, can only be breached when the court is satisfied that such a breach is necessary to secure the just determination of the issues. This decision is not intended to stand for the proposition that multiple IMEs will always be order to allow a litigant to meet expert for expert, even if the litigant is not completely satisfied with the strength of their first expert opinion. Page 7 [12] Presumptively, if the defendant has chosen a qualified expert(s) to conduct an IME/testing, then their choice should be respected, unless the circumstances make the choice an unreasonable one. [13] The plaintiff does not dispute that presumption insofar as it is applicable to an IME conducted within Nova Scotia, but questions the authority of this court to order a party to attend for an IME/testing outside of Nova Scotia. She says that, there being no express authority in the Rules, nor any basis to read in such authority, this court cannot order her to attend for an IME/testing outside Nova Scotia. [14] I note that under Rule 50 [subpoena], and specifically Rule 50.02, the Prothonotary of our court, on an ex parte request, may issue a subpoena to a witness residing outside of Nova Scotia, but within Canada. Similarly, under Rule 50.03, a judge may order a witness to attend and bring documents or other evidence, to the court in Nova Scotia. The jurisdictional wellspring for such authority is the mere fact that the litigation is extant in Nova Scotia. It is indisputable that the Nova Scotia Supreme Court has ample jurisdiction to control its own processes, and its decisions are to be accorded judicial comity by other Canadian courts (see Scanlan J.A. in BCE v. Gillis, 2015 NSCA 32, at paras ). The Nova Scotia Supreme Court can order that its processes be enforced outside of its territorial jurisdiction by requesting recognition thereof by reciprocating jurisdictions e.g. The Interprovincial Subpoena Act, S.N.S. 1996, c. 1 (see Justice Saunders (as he then was) comments in Frame v. Nova Scotia, [1997] N.S.J. No. 62, affirmed [1997] N.S.J. No. 523 (CA); and Justice Duncan s comments in Cherubini Metal Works Ltd. v. Nova Scotia, 2008 NSSC 284, at paras ; and similarly so for reciprocating jurisdictions: the Reciprocal Enforcement of Judgments Act, R.S.N.S. 1989, c. 388.

10 Page 8 [15] Rule provides that a person who has received proper service of a subpoena with the required travel money, or an order, who fails to attend, may be arrested, and dealt with by this court under our Rule 89 [contempt]. [16] Where there have been applications to quash a properly issued subpoena, though the Rules are silent on the quashing of subpoenas, our Courts have held that the evidentiary burden is first on the party who requested issuance of the subpoena to establish a link of relevance between the proposed witness and an issue in the proceedings; once satisfied, the burden shifts to the opposing party to show good cause, such as oppressiveness or abuse of power, as to why the subpoena should be quashed - Ocean v. Economical Mutual Insurance Co., 2010 NSSC 20, per Associate Chief Justice Smith, citing Justice Tidman s decision in Bowater Mersey Paper Co. Ltd. v. Nova Scotia (Minister of Finance), [1991] NSJ No [17] As Justice Tidman observed in Bowater Mersey, this Court s power to quash subpoenas arises under common law. More specifically, it arises under this court s inherent jurisdiction to control the court s process, in order to ensure the just determination of legal disputes. Surely, if this court has the jurisdiction to compel a non-resident witness 2 to testify within Nova Scotia, it must also have the jurisdiction to compel a resident-party to litigation in Nova Scotia to attend for an IME outside Nova Scotia, but within Canada. [18] On a practical level, one can also foresee that there may be circumstances where no person resident in Nova Scotia has the expertise required to conduct an IME in a particular case. Their need to access highly sophisticated equipment unavailable in Nova Scotia may also make the necessary testing/ime not viable in the Province of Nova Scotia. Surely, in those circumstances, the court would not be precluded from ordering that a resident-party to the litigation attend for such an IME outside the province of Nova Scotia, but within Canada? [19] I have no hesitation in concluding that this court has the legal authority to direct that a resident party-to-litigation in Nova Scotia attend for an IME outside the province of Nova Scotia, but within Canada. The discretion to order such attendances outside the province should presumptively respect the defendant s choice of expert and location, but be scrutinized as to the reasonableness thereof, including both the choice of expert and/or location. 2 (e.g. a medical practitioner as defined in Rule 94.10, which includes a person registered under similar legislation in another jurisdiction ).

11 Page Does the court have the authority to order Mrs Howatt to attend in Toronto Ontario for purposes of EMG testing by Dr. Gyl Midroni? [20] The court also has the authority to order Mrs. Howatt to attend in Toronto, Ontario, for EMG testing. Such testing also involves an expertise. As I see it, Dr. Midroni is himself an expert, who has the confidence of Dr. Perrin. Similar considerations as those that applied to Dr. Perrin regarding the court s authority, lead to the same conclusion. 3 - The court should order Mrs. Howatt to attend for an IME and EMG related testing in Toronto, subject to appropriate conditions [21] The examination and testing taken together, at a minimum, should only require three hours of the plaintiff s time, which could be completed in one day, if necessary. The plaintiff does not dispute the qualifications of Dr. Perrin. I am inclined to conclude that the qualifications of Dr. Midroni are also appropriate to the testing he is engaged to conduct. It is not unreasonable for Dr. Perrin to choose Dr. Midroni to perform the EMG testing. I infer that they have a good working relationship, and confidence in each other s professional abilities. Ideally, their schedules can be, and should be, synchronized so that Mrs. Howatt can undergo the EMG testing all on one day, or the testing on one day, and the IME on the following day. Their offices are in close proximity in Toronto. [22] Mrs. Howatt suggests that she should not have to go to Toronto for the IME and testing. Mr. Conway, on her behalf, in his July 15, 2016, suggested the reasons were as follows: Dr. Perrin had been prepared in 2015 to attend in Halifax to conduct the IME [I note he was scheduled to be here on holiday within a fixed timeframe in any event/i have no evidence that he is returning to Nova Scotia any time soon]; There are other suitable doctors who travel to Nova Scotia to conduct IMEs [but the defendant s choice of expert should be respected here unless it is unreasonable to do so which I do not conclude it is]; The proposed tests can be performed in Nova Scotia [the evidence of Mrs. Howatt is that she has had an EMG study done by a senior neurologist here in Nova Scotia however, strictly speaking, there is no specific evidence that there is a similarly qualified available specialist in Nova

12 Page 10 Scotia, who could take either Dr. Perrin s or Dr. Midroni s place, and the defendant s choice should be respected in the absence of evidence to the contrary]. Travel has a negative effect on Mrs. Howatt [on the evidence available to me, I am satisfied that travelling can have a temporary negative effect on Mrs. Howatt s symptomology; however, I am not satisfied that it is unreasonable for her to travel to Toronto, Ontario, which has direct flights of approximately two (2) hours from Halifax, and given that: she has confirmed in her affidavit that she is prepared to travel anywhere in Nova Scotia which travel by car could involve a six-hour journey; and that she has started travelling again [which is confirmed in her of February 23, 2016 wherein she states, I will be out of the country for March and part of April ], and her representations to the court that she is also travelling in November December, Dr. Howatt will be negatively impacted by having to be absent from Nova Scotia for 3 4 days to travel with the plaintiff to the IME [the material negative impact upon him will be financial I understand that the defendant always intended to provide sufficient notice [i.e. 3 months] to Dr. Howatt to allow him to reschedule any of his then existing commitments, and in any event I have no evidence of the magnitude of that impact - that is an assessment Mr. and Mrs. Howatt must make for themselves]. Moreover, there are persons other than Dr. Howatt who could act as a qualified medical practitioner to observe the examination at a much lesser cost to the plaintiff. While no doubt his presence would be a comfort to Mrs. Howatt, Dr. Howatt is not demonstrably a necessary travel partner. [23] I am satisfied that Drs. Perrin and Midroni and their examination/testing meet the requirements under our Rule 21. [24] In all the circumstances here, I do not find that the defendant s choice of Drs. Perrin and Midroni is an unreasonable one, or made for any purpose other than bona fide self-interest.

13 Page Is the defendant responsible for the travel expenses and potential lost earnings of Dr. Howatt? [25] As I understand it, Mrs. Howatt wishes her husband to accompany her to the IME/EMG testing, whether the court orders the location be in Toronto or Nova Scotia. [26] At the hearing before me, Mrs. Howatt argued that she would have Dr. Howatt attend with her in the capacity of a Rule qualified medical practitioner appointed by the party as an observer during the IME, and in the capacity of a Rule 21.06(3) person [to] accompany the party, as an observer during the EMG testing. [27] Rule deals with the costs of the medical examination and test. It states in part, the party who obtains an order for an examination or test must pay all of the following expenses: a. Professional and technical charges, except the charges of the person attending as an observer for the party being examined; b. Reasonable costs of the party being examined or tested to attend the examination or test, or to provide a sample; c. Wages lost by the party as a result of attending in an examination or test, or providing a sample. [28] Under that Rule, which provides no discretion to the court, Mrs. Howatt is entitled to be compensated by the defendant for reasonable costs involved with being examined or tested, and to attend for such purposes. [29] The defendant states in her brief that, the defendant has agreed to cover the plaintiff s reasonable costs of travel to Toronto to attend the IME, and has consented to the plaintiff s husband, Dr. Eric Howatt accompanying her to the IME under Civil Procedure Rule as a qualified medical practitioner appointed by the party as an observer. We submit that the plaintiff should bear the cost of Dr. Howatt s attendance at the IME [30] Disputes over the costs regarding Mrs. Howatt s own attendance in Toronto can be resolved by the court, if required. Strictly speaking, those amounts are not payable until a reasonable time after they are incurred, and have been authenticated.

14 Page 12 [31] In his capacity as an observer under Rule 21.06(3), Dr. Howatt cannot claim for charges. I understand that to mean, in that capacity, the observer cannot look to the defendant for the costs of his attendance at the IME and EMG testing. [32] In his capacity as the plaintiff s choice of qualified medical practitioner appointed by the party as an observer, the Rules are silent as to who is responsible for that cost to the plaintiff. I interpret the rule as placing entire cost burden on the plaintiff. Regardless of whether the qualified medical practitioner acts as an observer within Nova Scotia, or somewhere else in Canada, the Rules do not provide a reimbursement to the plaintiff by the defendant. [33] It is the plaintiff s decision whether or not to have a medical practitioner as an observer. If it were shown as a matter of evidence, that the plaintiff required such a person to accompany them for health/safety reasons, drawing on the medical practitioner s expertise, then arguably that may be seen as included in the reasonable costs of the party being examined or tested to attend Similarly that may be a relevant consideration when a court is deciding whether a party should be ordered to undergo an IME and EMG testing outside the province of Nova Scotia. [34] However, that is not the case here. The defendant is not responsible for any costs for Dr. Howatt s travel to and from Toronto, nor any financial consequences as a result of his absence from his employment and other commitments The conditions attached to the order for Mrs. Howatt to attend in Toronto for the IME and EMG testing [35] Primary among Mrs. Howatt s requested conditions is her proposal that the EMG testing and IME appointments be set over two full days rather than on one single day (January 19, 2017, at 1:00 p.m. and 4:00 p.m., respectively) as proposed by the defendant. [36] Her reasoning included that two days would provide: More time to ensure the testing and IME were completed sooner in light of the risk of the January 19, 2017 date having to be postponed due to inclement weather; an opportunity for the EMG testing results to be provided to Mrs. Howatt before she attends the IME; and various personal reasons outlined in her affidavit. 3 Although under the old Rules in Carpenter-Babin v. Myers, 2002 NSSC 216, see Justice Hood s comments at para. 5 requiring exceptional circumstances before a defendant would be required to pay such expenses.

15 Page 13 [37] While she presents some valid reasons for a full two days being used to conduct the EMG testing and IME, the parties were asked by the court to, and did provide mutually convenient available dates for Dr. Howatt and Mrs. Howatt to attend, and Drs. Perrin and Midroni to conduct the EMG testing and IME. [38] Those dates are limited to: For the plaintiff and Dr. Howatt January 19, 20, 26, 27, February 9 and 10, 2017; for the defendant s experts January 19, 26, or February 9, [39] Only single days are mutually convenient: January 19, 26, and February 9, The defendant has proposed a backup storm delayed second day as a single day: January 26, Mrs. Howatt is opposed to such a backup date that is not a consecutive day (e.g. January 19, and 20, 2017). [40] I conclude that the testing proposed for January 19, 2017 should proceed at or about 1:00 p.m. and the IME at or about 4:00 p.m. [41] I have no information regarding when two consecutive dates mutually convenient to the Howatts and Drs. Perrin and Midroni will be available. Past endeavours by the parties, and with the court s recent assistance, reveal a scheduling gridlock, which I conclude will unduly persist if the court seeks two mutually convenient consecutive dates later in 2017 from the parties. [42] Nevertheless, it would be unreasonable to expect Mrs. Howatt to fly to and back from Toronto, all on January 19, She should plan to fly to Toronto on January 18, 2017 and be ready and rested for the testing and IME on January 19, She should be permitted to fly back to Halifax on January 20, In accordance with Rule 21, the defendant will be responsible to bear all the reasonable expenses for her if she wishes to extend her stay in Toronto from January 18 to 20, 2017, if she so wishes. [43] For clarity, I will not include in an order, the plaintiff s requests that: i. Dr. Midroni provide a copy of this testing results to her before she sees Dr. Perrin (who may have received them by then); ii. The defendant pay for Dr. Howatt s expenses and/or loss of income caused by his attendance with his wife as an observer at the EMG testing and IME as an observer,

16 Page 14 iii. iv. his role is to merely observe, and he must strictly respect that status; The defendant pre-pay or immediately reminburse, in advance of travel, the plaintiff for the reasonable/necessary anticipated expenses of travel no exceptional circumstances, such as impecuniosity have been argued or demonstrated; There will be no video/audio taping of the testing or at the IME since the plaintiff says that the defendant has advised her counsel that the doctors do not use either. [44] Otherwise, the Rules provide ready mechanisms for the resolution of any disputes arising from Mrs. Howatt s attendance in Toronto. 6. Costs [45] While generally costs will follow the result, and the defendant has been successful herein, given the novel nature of the issue and unsettled jurisprudence under the new Rules, I am inclined to find it not in the interests of justice to award costs on this motion. Rosinski, J.