Defence Examinations – What You Need to Know
Today, I would like to briefly discuss the right of an injured person to have a family member or other person attend a medical examination scheduled by the defendant and their insurer in the context of litigation. The case I will briefly discuss for information purposes is Gill v. Walters, 2014 ONSC 5364 (S.C.J.). The issue in that case was whether an injured person had the right to have a student at law (from the lawyer’s office representing the injured person), attend at a defence examination to observe the examination. The specific examination was a defence long term care assessment. This matter went to an appellate court. The plaintiff won at the motion and the defendant appealed the decision. On appeal the plaintiff won again.
Justice DiTomaso ordered that a student-at-law could be present at the plaintiff’s assessment conducted by the defence expert. The Justice specifically ordered that a student-at-law could accompany the plaintiff at the in-home future Care costs analysis by the defendant, due to the noted emotional problems experienced by the plaintiff. The sole purpose and function of the student at law was to be a passive support person. In the end, the Justice, after reviewing the previous case law on the issue, decided that the case law gave the Justice discretionary based on the particular facts of each case.
In conclusion, when faced with a request to attend a defence medical examination, the motions Justice has sufficient discretion to allow another person to attend the examination with the plaintiff if there is good reason to order it.
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For reference, Rule 33 of the Rules of Civil Procedure states as follows:
RULE 33 MEDICAL EXAMINATION OF PARTIES
MOTION FOR MEDICAL EXAMINATION
33.01 A motion by an adverse party for an order under section 105 of the Courts of Justice Act for the physical or mental examination of a party whose physical or mental condition is in question in a proceeding shall be made on notice to every other party. R.R.O. 1990, Reg. 194, r. 33.01.
ORDER FOR EXAMINATION
Contents of Order
33.02 (1) An order under section 105 of the Courts of Justice Act may specify the time, place and purpose of the examination and shall name the health practitioner or practitioners by whom it is to be conducted. R.R.O. 1990, Reg. 194, r. 33.02 (1).
(2) The court may order a second examination or further examinations on such terms respecting costs and other matters as are just. R.R.O. 1990, Reg. 194, r. 33.02 (2).
DISPUTE AS TO SCOPE OF EXAMINATION
33.03 The court may on motion determine any dispute relating to the scope of an examination. R.R.O. 1990, Reg. 194, r. 33.03.
PROVISION OF INFORMATION TO PARTY OBTAINING ORDER
33.04 (1) Subrule 30.01 (1) (meaning of “document”, “power”) applies to subrule (2). R.R.O. 1990, Reg. 194, r. 33.04 (1).
Party to be Examined must Provide Information
(2) The party to be examined shall, unless the court orders otherwise, provide to the party obtaining the order, at least seven days before the examination, a copy of,
(a) any report made by a health practitioner who has treated or examined the party to be examined in respect of the mental or physical condition in question, other than a practitioner whose report was made in preparation for contemplated or pending litigation and for no other purpose, and whom the party to be examined undertakes not to call as a witness at the hearing; and
(b) any hospital record or other medical document relating to the mental or physical condition in question that is in the possession, control or power of the party other than a document made in preparation for contemplated or pending litigation and for no other purpose, and in respect of which the party to be examined undertakes not to call evidence at the hearing. R.R.O. 1990, Reg. 194, r. 33.04 (2).
WHO MAY ATTEND ON EXAMINATION
33.05 No person other than the person being examined, the examining health practitioner and such assistants as the practitioner requires for the purpose of the examination shall be present at the examination, unless the court orders otherwise. R.R.O. 1990, Reg. 194, r. 33.05.
Preparation of Report
33.06 (1) After conducting an examination, the examining health practitioner shall prepare a written report setting out his or her observations, the results of any tests made and his or her conclusions, diagnosis and prognosis and shall forthwith provide the report to the party who obtained the order. R.R.O. 1990, Reg. 194, r. 33.06 (1).
Service of Report
(2) The party who obtained the order shall forthwith serve the report on every other party. R.R.O. 1990, Reg. 194, r. 33.06 (2).
PENALTY FOR FAILURE TO COMPLY
33.07 A party who fails to comply with section 105 of the Courts of Justice Act or an order made under that section or with rule 33.04 is liable, if a plaintiff or applicant, to have the proceeding dismissed or, if a defendant or respondent, to have the statement of defence or affidavit in response to the application struck out. R.R.O. 1990, Reg. 194, r. 33.07.
EXAMINATION BY CONSENT
33.08 Rules 33.01 to 33.07 apply to a physical or mental examination conducted on the consent in writing of the parties, except to the extent that they are waived by the consent.