Court rejects defendants’ concerns that plaintiff with brain injury might tailor accident recollection if defendants examined first

An Ontario Superior Court Justice has rejected a request to change the order of examinations for discovery after the insured defendants expressed concern the brain-injured plaintiff might augment his recollections of an accident after hearing the defendants examined first.
In Ezeh v. Club Seventy-Seven, the insured defendants agreed to an examination for discovery earlier in the process in preparation for a criminal trial on condition that the plaintiff be examined first.
The plaintiff served the defendants a notice of examination first, and so the plaintiff would, according to court rules, be the first to conduct an examination unless a court decides otherwise.
The defendants argued that since the plaintiff had suffered a severe brain injury – in connection with being thrown out of a bar operated by the defendants in September 2010 – he might not remember details of the event. Therefore, if the defendants are examined first, the plaintiff might use what they say to create recollections of the event.
Ontario Superior Court Justice James Ramsay disagreed with the defendants,  rejecting their request to change the order of the examination for discovery.
“On the evidence before me, it is speculative to say that the risk that the plaintiff will tailor his evidence to the examinations of the defendants is any higher than the risk that any witness who hears another’s version of events will tailor his evidence,” Ramsay wrote in a short endorsement. “Even if the plaintiff were to augment his recollection, the augmented recollection would not be difficult to challenge.”
In support of his observation, Ramsay cited a medical report in the plaintiff’s materials. It showed that as late as April 2011, the plaintiff told one of the treating physicians that he does not remember the incident.
“Any later recollections would not be difficult to challenge,” Ramsay noted.