ICBC Injury Claims and Late Independent Medical Exams

When advancing an Injury Claim in the BC Supreme Court the Defendant’s are entitled to send the injured plaintiff to an independent medical exam or exams in order to ‘level the playing field’.
If a litigant wishes to rely on expert evidence addressing injuries Rule 40A of the BC Supreme Court Rules sets out the timelines for disclosure of such evidence to the opposing side.  Sometimes, ICBC defence lawyers apply for multiple independent medical exams and sometimes these applications are brought late into the pre-trial process such that any report generated will not comply with the timelines of Rule 40A.
Reasons for judgement were released today (Critchley v. McDiarmid) by Mr. Justice Burnyeat of the BC Supreme Court clarifying the law as it relates to late applications for independent medical exams.  In today’s case the court ordered that the Plaintiff see a psychiatrist even though the scheduled appointment was to take place outside of the timelines required by Rule 40A.  In reaching this decision the court summarized the relevant legal principles as follows:

[16] In Stainer v. Plaza (2001), 87 B.C.L.R. (3d) 182 (B.C.C.A.) Finch, J.A., as he then was, stated on behalf of the Court that the purpose of Rule 30 was:

This Court has repeatedly said that the purpose of Rule 30 is to put the parties on an equal footing with respect to medical evidence.  What steps are necessary to achieve that end is a matter of discretion for the chambers judge to assess in the circumstances of each case.

[17] Subsequent decisions have established  the following general principles: (a) the timing of the request for the independent medical examination is a relevant consideration in that a late request by a defendant may create a prejudice to the plaintiff by placing the plaintiff in a situation where he or she is either unable to respond to the proposed examination or is forced to seek an adjournment of the trial; (b) an inability to respond to a proposed examination constitutes prejudice to a plaintiff; (c) and an adjournment of a trial constitutes prejudice to a plaintiff.

[18] I am of the view that the exercise that was before the Learned Master was as set out by Master Groves, as he then was, in Mackichan v. June and Takeshi, [2004] B.C.J. (Q.L.) No. 2296 (B.C.S.C.):

The argument for a late medical examination is really a complication, or better put, an extension of the Stainer v. Plaza reasoning in that, I believe, the court must consider fairness between the parties and a balancing of prejudice when a request for a late medical examination is made.  It is not simply a question of putting the parties on a level playing field at this stage, it is a question of really balancing the prejudice which will result to the defendants in not having a report and the prejudice that will result to the plaintiff in having a report prepared late which would no doubt, I accept, cause an adjournment of the trial.

(at para. 11)

[19] While I am satisfied that the question of whether an independent medical examination raises a question vital to the final issue including the quantum of damages so that it is appropriate that there be a re-hearing of the matters which were before the Learned Master, the submission made on behalf of Mr. Critchley was that this was a purely interlocutory matter and that the Court on a review would have to find that the Learned Master was clearly wrong.

[20] On the assumption that the appeal must be heard on that basis, I have come to the conclusion that the Learned Master was clearly wrong in reaching his decision.  First, I cannot be satisfied that the Learned Master considered whether or not the proposed independent medical examination was required to put the Defendant on equal footing with the Plaintiff.  Nowhere in his Reasons does the Learned Master make this finding or give full consideration to this question.

[21] The Learned Master also fell into error by requiring the Plaintiff to establish with near certainty that the Trial would be adjourned.  By using the phrases “would be adjourned”, “why an adjournment would be inevitable”, “it is not automatic that the trial will be adjourned”, and “I have no evidence to conclude that there would be an adjournment ….”, the Learned Master was in error.  The Learned Master pointed out in his Reasons that which is obvious – the question of whether an opinion produced after an independent medical examination will result in an application for an adjournment can only be answered after an expert opinion is tendered under Rule 40A of the Rules of Court.  Here, it may well be that there is no need for the Plaintiff to arrange for an expert opinion to counter what might appear in the expert opinion flowing from the independent medical examination requested.  Accordingly, it is never correct to require a party to show that an adjournment would be “inevitable”.

[22] The nature of the findings in an opinion after an independent medical examination, the timing of the receipt of it, and the proximity of the likely receipt of it in relation to the date set for the Trial are factors which must be taken into account but whether or not an adjournment will be inevitable is not a factor which need be shown.  The question of whether an adjournment may be required is merely one of the factors which should be considered.  However, it is not the sole factor to be considered on the question of whether the independent medical examination should be ordered.

[23] I am also satisfied that the Learned Master erred by taking into account an earlier examination date which Mr. Critchley was not able to attend and by concluding that, had this earlier examination taken place, there would have been no prejudice to the Plaintiff.  I am satisfied that the Learned Master should only have given consideration to the proposed date of the examination and not an earlier date.

[24] In the circumstances, I can conclude that the Learned Master was clearly wrong and that the Order made should be set aside.