KENDRA SIMMONDS PLAINTIFF - v. -, 2023 SKKB 270

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 270 Date: 2023 12 13 Docket: QBG-RG-01627-2018 Judicial Centre: Regina ___________________________________________________________________________ BETWEEN: KENDRA SIMMONDS PLAINTIFF - and - 101148623 SASKATCHEWAN LTD., 101078923 SASKATCHEWAN LTD., and CRAIG PARKER DEFENDANTS Counsel: Ryan A. Tulloch for the plaintiff Jason M. Clayards for the numbered companies ___________________________________________________________________________ FIAT CURRIE J.

December 13, 2023 ___________________________________________________________________________ Introduction [ 1 ] In this action Kendra Simmonds claims against 101148623 Saskatchewan Ltd. and 101078923 Saskatchewan Ltd. (“the defendant corporations”) and Craig Parker for damages arising from an incident in which Mr. Parker assaulted her in the defendant corporations’ commercial premises. [ 2 ] On this application the defendant corporations apply for an order, under s. 6 - 12 of The King’s Bench Act , SS 2023, c 28 , and Rule 5-49 of The King’s Bench Rules , requiring Ms.

Simmonds to undergo an independent medical examination

(“IME”). Ms. Simmonds opposes the application. Circumstances [3] In her statement of claim, Ms. Simmonds asserts that the assault by Mr. Parker and the associated negligenceof the defendant corporations caused her physical and psychological injuries. She identifies psychological injuries including depression,anxiety, post-traumatic stress disorder (“PTSD”) and irritability. These, she says, have negatively impacted all aspects of her life. [4] Ms. Simmonds has provided to the defendant corporations and to the court the written report of Dr. MylesGenest, a registered psychologist. Dr.

Genest details extensive psychological examination and testing of Ms. Simmonds. In the report heopines that, as a consequence of the assault, Ms. Simmonds suffers from severe PTSD and from severe alcohol use disorder, the latterbeing in sustained remission. [5] The defendant corporations seek an IME specifically to obtain an independent opinion as to the cause, extentand duration of the psychological injuries that Ms. Simmonds asserts were caused by the assault. They propose that the IME beconducted by Dr. Mansfield Mela, who is a registered psychiatrist. Ms.

Simmonds opposes the application on the basis that requiring herto undergo a second psychological examination would cause her serious injury by way of exacerbating her PTSD. Authority for ordering an IME [6] An order directing an IME is contemplated in s. 6-12 of The King’s Bench Act: 6-12(1) In an action brought to recover damages or other compensation with respect to bodily injuries sustained by any person, a judgemay order the injured person to be examined by one or more duly qualified medical practitioners who are not being called by a party aswitnesses at the trial of the action.

(2) An examination pursuant to subsection (1) is to be as complete as the medical practitioners consider necessary to ascertain the extentof the injuries alleged to have been sustained by the person being examined, the cause of the injuries and the probable duration of theinjuries.

(3) A person being examined pursuant to subsection (1) shall answer all proper questions posed by the medical practitioners.

(4) The medical practitioners shall make a full report of the examination, file a copy of the report in court and deliver copies to theparties or their lawyers.

(5) One medical adviser for each party may be present during the examination.

(6) No examination shall be made until due notice of it has been given to the parties or their lawyers.

(7) The party who asks for the examination shall bear the costs of the examination, in the first instance, insofar as the costs of themedical practitioners are concerned, but the trial judge may treat those costs as costs in the cause.

(8) On an application without notice, a judge may order that a medical practitioner who makes an examination pursuant to this

section becalled as a witness at the trial, and a witness called pursuant to that order: (

a) is subject to cross-examination by any party; and (

b) is deemed not to be a witness of any party.

(9) Failure without excuse to submit to examination at the times and places appointed by the medical practitioners is a ground for a stayof proceedings in the action or for a dismissal of the action in the discretion of the judge. [7] These provisions are echoed in Rule 5-49: 5-49 In an action brought to recover damages or other compensation with respect to bodily injuries sustained by any person, a judge mayorder the injured person to be examined by one or more duly qualified medical practitioners who are not being called by a party aswitnesses at the trial of the action. Admissibility of Dr.

Genest’s report [8] The defendant corporations object to the admissibility of Dr. Genest’s report on this application. Specifically,they observe that Ms. Simmonds tenders the report for the truth of its factual content and for the presentation of Dr. Genest’s opinion.They point out that the factual content of the report is unsworn hearsay, in that it is simply what Dr. Genest has been told by Ms.Simmonds. As to the opinion, the defendant corporations point out that Dr. Genest has not been qualified by the court to give opinionevidence on this application. For these reasons, say the defendant corporations, Dr.

Genest’s report should not be considered by me. [9] Regarding opinion evidence, the defendant corporations refer to the requirements that are set out in R vMohan, (SCC), [1994] 2 SCR 9 (QL) at para 17: 17 Admission of expert evidence depends on the application of the following criteria: (

a) relevance;

(

b) necessity in assisting the trier of fact; (

c) the absence of any exclusionary rule; (

d) a properly qualified expert. [10] Dr. Genest’s report is tendered before me without there having been a review and determination of the Mohanrequirements. [11] Ms. Simmonds invites me to admit Dr. Genest’s report into evidence on this application, though, under s. 22(1)of The Evidence Act, SS 2006, c E-11.2: 22(1) With leave of the court, a professional report purporting to be signed by a physician, chiropractor, dentist, psychologist, physicaltherapist or occupational therapist authorized pursuant to a statute to practise in any part of Canada is admissible in evidence in anyproceeding without proof of the person’s signature, qualifications or authority to practise.

(2) If a member of a profession mentioned in subsection (1) has been required to give evidence orally in a proceeding and the court is ofthe opinion that the evidence could have been produced as effectively by a professional report in writing, the court may order the partythat required the attendance of the professional practitioner to pay costs in any amount that the court considers appropriate. [12]

Section 22 of The Evidence Act authorizes the admittance into evidence of an expert report without proof of theexpert’s qualifications. This is a matter of the judge exercising his or her discretion. In exercising my discretion I am not motivated todisregard the Mohan requirements. Those requirements are in place for good reasons. I do not view s. 22 as justifying my sidesteppingthose requirements. [13] In fact, Dr. Genest’s report includes a detailed statement of his qualifications. The provision of such informationis a first step towards an expert being qualified to provide an opinion in court.

Qualification by the court also requires, though, a requestto the court for qualification, with notice to the other side so that any issue regarding qualification can be reviewed. That has not occurredhere. [14] The importance of such a review is emphasized in the remarks of Justice Cromwell in White Burgess LangilleInman v Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182 at paras 23-24: 23 At the first step, the proponent of the evidence must establish the threshold requirements of admissibility.

These are the four Mohanfactors (relevance, necessity, absence of an exclusionary rule and a properly qualified expert) and in addition, in the case of an opinionbased on novel or contested science or science used for a novel purpose, the reliability of the underlying science for that purpose: J.-L.J.[2000 SCC 51], at paras. 33, 35-36 and 47; Trochym [2007 SCC 6], at para. 27; Lederman, Bryant and Fuerst [The Law of Evidence inCanada, 4th ed Markham, Ont.: LexisNexis, 2014], at pp. 788-89 and 800-801.

Relevance at this threshold stage refers to logicalrelevance: Abbey (ONCA) [2009 ONCA 624], at para. 82; J.-L.J., at para. 47. Evidence that does not meet these threshold requirementsshould be excluded. Note that I would retain necessity as a threshold requirement: D.D. [2000 SCC 43], at para. 57; see D. M. Pacioccoand L. Stuesser, The Law of Evidence (7th ed. 2015), at pp. 209-10; R. v.

Boswell, 2011 ONCA 283, 85 C.R. (6th) 290, at para. 13; R. v.C. (M.), 2014 ONCA 611, 13 C.R. (7th) 396, at para. 72. 24 At the second discretionary gatekeeping step, the judge balances the potential risks and benefits of admitting the evidence in order todecide whether the potential benefits justify the risks. The required balancing exercise has been described in various ways.

In Mohan,Sopinka J. spoke of the "reliability versus effect factor" (p. 21), while in J.-L.J., Binnie J. spoke about "relevance, reliability andnecessity" being "measured against the counterweights of consumption of time, prejudice and confusion": para. 47. Doherty J.A.summed it up well in Abbey, stating that the "trial judge must decide whether expert evidence that meets the preconditions toadmissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that mayflow from the admission of the expert evidence": para. 76. [15] Dr.

Genest’s opinion is not properly before the court on this application. For this reason, I do not consider hisopinion on this application. [16] As to the factual content of Dr. Genest’s report, for two reasons I do not consider that content. First, Dr. Genesthas not provided the information under oath. Second, since I have affidavit evidence from Ms. Simmonds herself there is no need toaccept in evidence Dr. Genest’s recitation of what she has to say. Therefore, that recitation of facts is inadmissible hearsay: R v Khan, (SCC), [1990] 2 SCR 531. [17] For these reasons then, I do not admit any part of Dr.

Genest’s report in evidence on this application. [18] Having said that, on this application the fact that a registered psychologist has diagnosed Ms. Simmonds withsevere PTSD is relevant. On this application it is neither necessary nor proper for me to conclude whether Ms. Simmonds has PTSD, butmy determination as to whether she should be required to submit to an IME must take into account the fact that such an opinion has beenexpressed by a registered psychologist.

[19] Ms. Simmonds has stated in her affidavit that she underwent the detailed examination and testing by Dr. Genest,and that she has received from him a PTSD diagnosis. Her relating of Dr. Genest’s diagnosis is a form of hearsay, but in thecircumstances of this application a proper understanding of her argument requires my considering the basic fact that Dr. Genest hasdiagnosed her as suffering from PTSD. Thus I consider this relevant fact to be a “necessity” exception to the hearsay rule. [20] In

summary on this point, I do not admit Dr. Genest’s report in evidence on this application. I do have before mein evidence the facts that Dr. Genest, a registered psychologist, has conducted a detailed examination and testing of Ms. Simmonds, andthat he has concluded that she suffers from PTSD as a result of the assault.

Court decisions relied on by the parties [21] The following excerpts represent the court decisions relied on by the parties on the question of ordering an IME. [22] In Haughian v University Hospital Board (1985), (SK KB), 41 Sask R 176 (QB), JusticeWimmer said at para. 5: 5 An order for an independent medical examination of a plaintiff is customarily made as a matter of course when the request for such anorder is reasonable and it appears necessary for a just determination of the cause. However, when it is shown that an examination wouldinvolve some risk to the plaintiff the order should be refused.

In Aspinall v. Sterling Mansell Ltd., Hodgson J. stated the position at page868 as follows: ... I do not think it can ever be unreasonable for a plaintiff to refuse to undergo a procedure which carries with it a risk, however minimal,so long as it can be called real, of serious injury. I agree, and the facts deposed to by Mrs. Haughian raise a sufficient possibility of real risk to persuade me to decline the order. Also, Idoubt that Dr. Paine and his advisers will be disadvantaged in the defence of the action by my refusal to make the order.

As was pointedout in argument, all of the defendants have full access to the complete medical history of Mr. Haughian and the medical recordsrespecting the matters in issue in the action. [23] In Mr. D v Phillips, 2003 ABQB 832, 27 Alta LR (4th) 251, Justice Clackson said at para. 5: 5 The defence is more or less certain to be granted a medical examination and therefore it is now quite rare to have a Plaintiff objector seek a ruling on the subject. The reasons why defence medical examinations have become the stuff of routine are comprehensively setout by Ritter, J. (now J.A.) in R. v. A. (W.), [2001] A.J.

No. 1604 (Alta. Q.B.) at p. 3 paras. 14-17 inclusive as follows: [14] The purpose of this Order is an attempt to secure for the Defendant "a level playing field" (Jobes v. Zolinski, (MB CA), [1999] 9 W.W.R. 152 (Man. C.A.)). In coming to its conclusion, the Court is required to balance the needs of both parties(Rasiah v. Toronto Transit Commission, [2000] O.J. No. 4802 (Ont.

Master)). [15] These tests have been adopted in Alberta and the purpose of the Defendant's medical has been stated to be: To put the parties on a basis of equality, as nearly as may be, and to make available to the Court the fullest appraisal of the injuriescomplained of, and the consequence of such injuries (Lyons v. Khamsanevongsy (1997), (AB KB), 13 C.P.C. (4th)81 (Alta. Q.B.), following Grayson v. Demers, 1974 ALTASCAD 81 , [1975] 2 W.W.R. 289 (Alta.

C.A.). [16] Further, a Defendant should be entitled to obtain his own evidence of the Plaintiff's physical condition so as to be able to present afull answer and defence (Lyons, supra). [17] It has been specifically stated that where a Plaintiff has obtained and filed an Expert Report from a Psychologist, it would be unfairnot to allow the Defendant the opportunity to challenge the Report by having the Plaintiff examined by the Defence's own Psychologist(Heighes v. Stoutenburg (1998), 28 C.P.C. (4th) 144 (Alta.

Master)), It is a general rule that even if test results or other information havebeen obtained by the Plaintiff's expert, which might be made available to the Defendant's expert, the Defendant's expert should have anopportunity to actually examine the Plaintiff. Otherwise unfairness arises because a Defendant's expert will not have the same credibility,and their expert evidence will not have the same weight, if the expert is not allowed to make an assessment based on both clinicalobservations and testing of the Plaintiff (Babyn v. Patel (1998), 29 C.P.C. (4th) 147 (Alto. Q.B.) and Jobes, supra).

Obviously the greaterthe claim, the greater the potential unfairness in not providing the Defendant a fair opportunity to meet the Plaintiff's case (Souther (NextFriend of) v. Pitre, (1995), (AB KB), 27 Alta. L.R. (3d) 15 (Alta. Q.B.)). [24] In Fortugno v Wickstrom, 2005 SKQB 53, 259 Sask R 315, Justice Ball said at para. 10: 10 In an action brought to recover compensation for bodily injuries an independent medical examination of the injured person may beordered pursuant to s. 36 of The Queen's Bench Act, 1998 [the equivalent of s. 6-12 of The King’s Bench Act].

The legislation is designedto balance the plaintiff's right to privacy against the defendant's right to properly defend against the plaintiff's claims in the litigation.Although a first medical examination will usually be ordered as a matter of course in the absence of reasons to the contrary, subsequentmedical examinations will not be ordered so routinely.

The overriding concern in each case is whether such an examination is necessaryto permit the defendant to fairly respond to the plaintiff's claims. [25] In Bonello v Taylor, 2010 ONSC 5723, 100 CPC (6th) 399, Justice Brown said at para. 16: 16 Although the determination of whether to order a second or further examination by a health practitioner must turn on the specificfacts and equities of a case, a body of case-law has developed around when a second or further examination may be ordered under CJA[Courts of Justice Act, RSO 1990, c C.43] s. 105 and Rule 33. The leading principles can be summarized as follows: (

i) The party seeking the order for a further examination must demonstrate that the assessment is warranted and legitimate, and not

made with a view to delaying trial, causing prejudice to the other party, or simply corroborating an existing medical opinion; (ii) A request may be legitimate where there is evidence that (

i) the party's condition has changed or deteriorated since the date of a previous examination, (ii) a more current assessment of the plaintiff's condition is required for trial, (iii) the plaintiff served specialist reports from new assessors after the defendants had conducted their medical assessments, or (iv) some of the party's injuries fall outside the expertise of the first examining health practitioner; … [ 26 ] In Biehn v Rayle , 2015 ONSC 3746 , 74 CPC (7th) 314, Justice Broad said at para. 23: 23 The plaintiff has served the report of a psychologist addressing the plaintiff's psychological injuries.

It would be manifestly unfair to require the defendant to go to trial without the opportunity to have an assessment conducted with respect to the plaintiff's psychological condition. Second examination, as opposed to second IME [ 27 ] The propriety of ordering an IME here depends on a balancing of Ms. Simmonds’ interest with the defendant corporations’ right to properly defend her claims. Here the interest identified by Ms. Simmonds is the risk that she will suffer serious injury if she is required to submit to an IME. [ 28 ] Ms.

Simmonds points to the decisions in Fortugno and Bonello as precedents for resisting the ordering of a second examination. There is, however, a significant difference between those cases and the case of Ms. Simmonds. In each of those cases, the court was considering a defence application for a second IME. Here the defendant corporations are asking for a first IME. [ 29 ] This difference is significant because, as discussed in the cases excerpted above, an IME is distinct from an examination that was conducted at the behest of the plaintiff. A key to the importance of an IME is that it is independent.

It is for this reason that, as other judges have observed, a first IME is almost routine. A second IME is not, and so considerations as to whether to order a second IME do not apply to this case. The parties’ positions as to risk of injury to Ms. Simmonds [ 30 ] In her affidavit, Ms. Simmonds describes in detail ongoing psychological symptoms, which she relates to the assault. It is not necessary for me to relate such details here. It is sufficient to note that she relates a worsening of her psychological condition to her thinking about the assault.

She relates an improvement in her psychological condition to being distanced from thinking about the assault. [ 31 ] Ms. Simmonds emphasizes that she found her examination by Dr. Genest, which included his interviewing her four times, unsettling. She believes that the experience exacerbated her symptoms. She argues that undergoing an IME will force her to relive the trauma of the assault and trigger her PTSD. [ 32 ] Ms.

Simmonds adds that an order for an IME would involve her travelling for that purpose, and that when driving alone in a vehicle she experiences heightened symptoms. [ 33 ] The defendant corporations assert that Ms. Simmonds has not provided evidence of a real risk of harm that would prevent an IME being ordered. Her situation, they say, is not similar to the situations in the cases where an IME has been refused. For example, in some such cases it was established that the plaintiffs suffered severe depression and multiple psychiatric hospitalizations.

In another case it was established that the plaintiff engaged in suicide efforts. These kinds of circumstances are not in evidence here. The parties’ positions as to the right to properly defend the claims [ 34 ] Ms. Simmonds asserts that the defendant corporations’ ability to defend her claim will not be compromised by the refusal of an IME. She refers to Haughian , in which Justice Wimmer doubted that the defendants there would be disadvantaged by the refusal of an IME, observing that they had “full access to the complete medical history of Mr.

Haughian and the medical records respecting the matters in issue in the action.” [ 35 ] Ms. Simmonds observes that the same circumstance exists here. The defendant corporations have access to her entire medical history, including all relevant medical records and including the detailed report of Dr. Genest. Furthermore, she points out that the defendant corporations have conducted questioning of her, under The King’s Bench Rules , on three occasions. [ 36 ] With regard to their right to be able to defend Ms. Simmonds’ claim, the defendant corporations say that I should find Ms.

Simmonds’ argument, that there already exists a psychological assessment, to be unpersuasive. They observe that the assessment was by a medical practitioner of her own choosing, an expert retained by her to provide evidence in her claim. Dr. Genest’s examination was not an independent examination. [ 37 ] The defendant corporations argue also that a review of medical records seldom is sufficient to fully inform a person who is aiming to make a knowledgeable diagnosis. In this case, they say, that circumstance is demonstrated by the fact that Dr. Genest interviewed Ms.

Simmonds four times in the course of developing his diagnosis. [ 38 ] The defendant corporations say that, in opposing the order for an IME, Ms. Simmonds is seeking to deny them the knowledge of the case that they need in order to respond to her case. They say that she is seeking to deny them equal access to evidence that is essential to responding to her claim. Determination as to ordering an IME

[ 39 ] Ms. Simmonds says that there exists a real risk that the requested IME would cause her injury, by exacerbating her PTSD. She argues that this risk outweighs the effect of a refusal of the order on the ability of the defendant corporations to respond to her claim. [ 40 ] The risk of injury to Ms. Simmonds appears in the evidence by way of her describing the risk. As a lay witness, Ms. Simmonds can provide evidence of her experiences, of course, but she cannot provide a medical opinion. Specifically, while I have accepted her evidence that Dr. Genest has diagnosed her with PTSD, she cannot diagnose herself.

Nor, as I have said, is it established on this application that she has PTSD. [ 41 ] That point is, in fact, the key to this application. Ms. Simmonds asserts that it is clear that she is at substantial risk of serious injury if an IME is ordered, on the basis that she has PTSD. If one accepts that she has PTSD and that she suffers the associated symptoms that she has described, then the risk is clear. [ 42 ] The very issue that the defendant corporations are entitled to explore, however, is whether Ms. Simmonds has PTSD and suffers the associated symptoms. Effectively, Ms.

Simmonds argues that she should not be ordered to undergo an IME – one purpose of which is to determine whether she has PTSD – because she has PTSD. That argument is not persuasive. [ 43 ] As to Ms. Simmonds’ concern about driving alone, that concern can be addressed by providing that she can be accompanied in a vehicle when she travels for the IME. [ 44 ] I do not find a clear or strong risk that Ms. Simmonds would suffer injury as a consequence of undergoing the proposed IME. Balanced against that factor is the entitlement of the defendant corporations to a level playing field, by way of both Ms.

Simmonds and the defendant corporations having a full opportunity to determine the extent of psychological injuries suffered by Ms. Simmonds as a result of the injury. Accommodating such a level playing field is the purpose of s. 6 - 12 of The King’s Bench Act . [ 45 ] Furthermore I accept that, just as Dr. Genest had the benefit of meeting with Ms. Simmonds, the physician conducting the IME should have that benefit.

Medical records are insufficient to provide the information that is necessary to developing an informed diagnosis and opinion. [ 46 ] The circumstances of this case lead me to the conclusion that was stated by Justice Broad in Biehn at para 23 : 23 The plaintiff has served the report of a psychologist addressing the plaintiff's psychological injuries. It would be manifestly unfair to require the defendant to go to trial without the opportunity to have an assessment conducted with respect to the plaintiff's psychological condition. [ 47 ] I will order an IME under s. 6 - 12 of The King’s Bench Act . Dr.

Mela’s qualifications [ 48 ] Ms. Simmonds objects to Dr. Mela conducting the IME, should it be ordered. Her objection is twofold. [ 49 ] First, she objects that Dr. Mela is not a “duly qualified medical practitioner” within the meaning of s. 6 - 12 of The King’s Bench Act and Rule 5-49. In fact, he is. [ 50 ] The Legislation Act , SS 2019, c L-10.2 , defines a “duly qualified medical practitioner” in s. 2 - 29 as follows: “duly qualified medical practitioner” means a person registered pursuant to The Medical Profession Act, 1981 , other than a person registered pursuant to

section 42.1 of that Act, whose registration is not under suspension; [ 51 ] Dr. Mela is registered pursuant to The Medical Profession Act, 1981 , SS 1980-81, c M-10.1 . Thus he is a “duly qualified medical practitioner”. [ 52 ] Ms. Simmonds’ second objection is that examination of a person with a view to a potential diagnosis of PTSD is not in Dr. Mela’s area of expertise. For this reason, she says, he is not qualified to conduct such an examination. In so saying she observes that a large part of Dr. Mela’s experience is in forensic psychiatry.

There is, she notes, no reference to PTSD in his curriculum vitae . [ 53 ] The defendant corporations respond that Dr. Mela is a clinical psychiatrist, is a psychiatry professor at the University of Saskatchewan, and has published a large volume of material in the field of psychiatry. Thus, they say, he is eminently qualified to conduct the IME. [ 54 ] I find that Dr. Mela is qualified to conduct the IME, by virtue of his extensive education and experience in psychiatry.

He is qualified to gather the pertinent information, analyze that information and form an opinion as to the cause, extent and duration of the psychological injuries that Ms. Simmonds asserts were caused by the assault. Any possible deficiency in his knowledge or experience is a matter for cross-examination and argument at trial. Scope of the order [ 55 ] Ms. Simmonds is concerned that the scope of the proposed order for an IME would permit Dr. Mela to go beyond what is necessary to conduct the psychological evaluation and to develop an opinion.

She points to the fact that she has suffered physical injuries, and that it would not be appropriate, for example, for Dr. Mela to examine details of her broken leg. [ 56 ] There is validity to that point, but it also is the case that some information about some of the physical injuries that were suffered by Ms. Simmonds could relate to her psychological symptoms. The answer is in s. 6 - 12(2) of The King’s Bench Act :

6-12 …

(2) An examination pursuant to subsection (1) is to be as complete as the medical practitioners consider necessary to ascertain the extent of the injuries alleged to have been sustained by the person being examined, the cause of the injuries and the probable duration of the injuries. [ 57 ] The IME will be conducted with respect to only the cause, extent and duration of Ms. Simmonds’ psychological injuries. This will restrict Dr.

Mela to information that relates to psychological injuries, but also will permit him to access information that, in his view, is necessary to providing an informed opinion. [ 58 ] With this clarification, the proposed order tracks this and the other provisions of s. 6 - 12 , and it is appropriate. Costs [ 59 ] The defendant corporations have been successful on this application. They will have one set of costs of the application, under column 2, in any event of the cause. Conclusion [ 60 ] I order that: 1. Pursuant to s. 6 - 12 of The King’s Bench Act , the plaintiff, Kendra Simmonds, is required to attend on Dr.

Mansfield Mela at Saskatoon, Saskatchewan, as soon as can be arranged and is reasonably practicable, for the purpose of receiving an independent medical examination on the following terms and conditions: (

a) Reasonable prior notice of the date and time of the medical examination must be provided to the plaintiff; (

b) Dr. Mela shall be entitled to conduct as full and thorough an examination of the plaintiff as he considers necessary in order to opine on the extent, cause and duration of the plaintiff’s psychological injuries which form the subject matter of this action; (

c) The plaintiff shall adequately answer all proper questions and undergo all proposed tests submitted to her by Dr. Mela, including questions as to the extent, cause and duration of her injuries; (

d) Dr. Mela shall prepare a written report of his examination of the plaintiff. Copies of the same shall be filed with the Court and provided to counsel for each of the parties; (

e) If desired, each party shall be entitled to have one medical advisor present during the examination, the cost of which shall be borne in the first instance by the party requesting such attendance, and thereafter shall be in the cause; (

f) The plaintiff shall provide Dr. Mela with any written consents that may be required to obtain medical images, reports, and information relating to her injuries which are not currently in the parties’ possession; (

g) Should the plaintiff fail, without reasonable excuse, to submit to the examination, the within action shall be stayed without further order until the examination has been completed; (

h) The costs of the examination shall be borne in the first instance by the defendants, 101148623 Saskatchewan Ltd. and 101078923 Saskatchewan Ltd., and thereafter shall be in the cause; (

i) The defendants, 101148623 Saskatchewan Ltd. and 101078923 Saskatchewan Ltd., shall pay in advance to the plaintiff an amount estimated as sufficient to cover the transportation costs of the plaintiff and a travel companion selected by her, as well as their accommodation and reasonable per diem expenses for meals. 2. Any party shall be at liberty to call Dr. Mela as a witness at trial. 3. The defendants, 101148623 Saskatchewan Ltd. and 101078923 Saskatchewan Ltd., shall have leave to file any report prepared by Dr.

Mela outside the timelines prescribed by Rule 5-40 of The King’s Bench Rules . 4. 101148623 Saskatchewan Ltd. and 101078923 Saskatchewan Ltd. will have one set of costs of the application, under column 2, in any event of the cause. J. G.M. CURRIE