As set out in the Courts of Justice Act, s. 105 and the Rules of Civil Procedure, (rule 33.01) a defendant may submit a motion to request an independent medical examination of a plaintiff if the latter’s physical or psychological condition has changed or is in question. The intent of this type of motion is to facilitate an objective medical assessment and create a ‘level playing field’ for the opposing parties in a civil action. Under circumstances where such a motion may affect substantive rights or trial fairness, leave is often granted.
In Mason v. MacMarmon Foundation, a boy was injured on a metal rail while snowboarding at a Quebec ski resort during a school trip. He suffered a brain injury and concussion, as well as chronic pain and depression. About two years after his accident, he commenced a lawsuit against the defendants (including the school he attended). In the years following, the plaintiff was assessed by multiple medical specialists, both for the plaintiff and the defendant, and there was some disagreement in their diagnosis and on whether some of the plaintiff’s physical and psychological injuries were present before the accident (i.e. there was some evidence that he had a pre-existing underlying psychiatric condition). Shortly before the scheduled trial, the results from a complicated and controversial diagnosis conducted by a medical expert for the plaintiff were delivered to the defendants. As a result of this late medical report, the defendants filed a motion to compel the plaintiff to attend a medical examination with a physiatrist and neurologist, in addition to a supplemental examination for discovery. The plaintiff opposed this motion.
The motion judge noted that the severity and cause of the plaintiff’s psychological injuries are key issues in this case. About one year before the motion, medical experts for both sides indicated that a neuropsychological assessment was needed to assess the extent and nature of the plaintiff’s cognitive defects, but the plaintiff was seemingly not prepared to obtain such an assessment until a short time before the notice deadline. At this time, the defendants received an assessment report by a neuropsychologist for the plaintiff which appeared to close a gap in the plaintiff’s case and presented the opinion that, even if the plaintiff’s psychological condition did not result from his brain injury, his condition is inextricably connected to the chronic pain he has suffered since the accident. In light of this new and unexpected information, the motion judge found that, in the interest of fairness, leave must be granted for the defendants to proceed with their motion.
Judge Boswell asserted that the issue of whether the plaintiff should be compelled to attend another defence medical examination should consider the potential delay and increased costs of a further examination. However, the fundamental question is “whether trial fairness would be prejudiced in the absence of further examination(s)”, as found in Kernohan v. York (Municipality), 2009.
The defendants initially chose to have the plaintiff assessed by an orthopaedic surgeon, rather than a physiatrist, for tactical reasons. In the years after his accident, there were no significant changes in Mr. Mason’s physical condition or in the medical evidence for his physical injuries. Accordingly, Judge Boswell concluded that the defendants are now bound to that choice and cannot request an examination by a physiatrist “as a mere attempt to match up experts”. Nonetheless, the request for an assessment by a neuropsychologist was deemed appropriate, given that several experts advised that a neuropsychological assessment should be conducted, and despite many years in which he could have attended such an examination, the plaintiff did not do so until a short time before the scheduled trial. As a result, the defendants were taken by surprise when they received the neuropsychologist’s controversial report within weeks of the deadline. As prejudice to the defendants in not permitting an examination outweighed the potential prejudice to the plaintiff by ordering the examination, Judge Boswell directed a neuropsychological examination to be conducted in two weeks’ time, to avoid an inevitable delay of the trial. However, the judge dismissed the defendant’s request compelling the plaintiff to attend another examination for discovery, as there was an absence of substantial deterioration in the plaintiff’s medical condition or any other exceptional circumstances validating the necessity for a further discovery.
Daggitt v. Campbell (2016), is another case in which a defendant filed a motion for an independent medical examination of a plaintiff. The plaintiff, Ms. Daggitt, was seriously injured in a rear-end collision and suffered from chronic pain and psychological injuries. In Daggitt, the defendant filed the motion a short time before the trial date, requesting that the plaintiff be examined by a specific psychiatrist, Dr. Bail. In response, the plaintiff agreed to an independent examination by a neuropsychologist or psychologist, but objected to the defendant’s choice of medical expert for the following reasons: she had never before been treated by a psychiatrist; there was no evidence that a psychiatric examination was warranted; and perhaps most importantly, there were allegations in several previous civil cases alleging that Dr. Bail demonstrated clear bias and his testimony was not credible.
In considering the defendant’s motion in Daggitt, Justice Macheod-Beliveau decided that the defendant did not demonstrate any legitimate grounds for ordering another independent medical examination, as the plaintiff’s condition had improved, she was no longer receiving treatment or counselling, and there were no new medical reports indicating a change in her condition. Also, at this late date, the defendant’s motion would likely delay the trial for two years or more. The court cited Justice Kane’s assertions in Bruff-Murphy v. Gunawardena (2016), where the judge found that Dr. Bail “was not a credible witness and that he failed to honour his obligation and written undertaking to be fair, objective and non-partisan pursuant to Rule 4.1.01”. On all of these grounds, Justice Macheod-Beliveau concluded that granting the defendant’s motion would result in prejudice to only the plaintiff, therefore, the motion was dismissed. This case highlights the requirement that a defendant’s request for an independent medical examination of the plaintiff must not be a frivolous or deceitful tactic, or intended for the purpose of stalling the trial.
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