Can the BC Supreme Court Order a Plaintiff to Travel Out of Province for an Independent Medical Exam?
April 29th, 2011
Further to my post discussing court ordered medical exams and travel, I’ve recently had the opportunity to review whether the current Supreme Court Rules place limits on Court ordered travel for independent medical examinations. The line, it seems, is drawn at out of Province “medical practitioners“.
While I’m not aware of any cases addressing this issue under the current rules, the issue was addressed by the BC Court of Appeal under the former Rule 30(1) which reads almost identically to the current Rule 7-6(1).
In the leading case under the former rules (Hewitt v. Buell) the BC Court of Appeal held that orders for medical examinations are to be limited to BC physicians because “the phrase (medical practitioner)…as it appears in Rule 30(1) can have no meaning other than one entitled to practice in British Columbia. This is what the chambers judge concluded and in my view he was right. ”
The BC Court of Appeal went on to hold that applications for out of Province examinations with “other qualified persons” (ie- experts other than medical practitioners), can be ordered in rare circumstances.
I’ve now had the opportunity to cross reference this judgement with the new Rules of Court. It appears that the out of Province restriction for exams with “medical practitioners” remains in place. The reason being is that Rule 7-6(1) reads almost identically to the former Rule 30(1). Additionally, the current Rules of Court do not define “medical practitioner” requiring the Court to turn to Rule 1-1(2) which states that “Unless a contrary intention appears, the Interpretation Act and the interpretation section of the Supreme Court Act Apply to these Supreme Court Civil Rules“.
“Medical Practitioner” is defined at section 29 of the BC Interpretation Act as “a registrant of the College of Physicians and Surgeons of British Columbia entitled under the Health Professions Act to practice medicine and to use the title ‘medical practitioner’.”
So, if an out of Province medical exam is contested, a good place to start in opposing a defence application is to review whether the out of Province physician is a registrant of the BC College of Physicians and Surgeons.