Late Applications for Defence Medical Exams in ICBC Injury Claims

Reasons for judgement were released this week by the BC Supreme Court considering the issue of timing of applications for compelled medical exams in the context of an ICBC Injury Claim.
Under the current BC Supreme Court Rules expert evidence that is not ‘responsive‘ is required to be served on opposing parties 60 days before it is tendered into evidence.  This requirement is set out in Rule 40A.  (As of July 1, 2010 a new set of BC Supreme Court Rules will come into force and Rule 11 will govern the admissibility of reports which makes some changes to timelines for exchange of expert evidence).
When a Defendant comes to court asking for a compelled exam BC Courts have considered the issue of timing and if the application is inside the timelines for service of a report the Defendant may have an uphill battle.  Reasons for judgement were released today demonstrating this.
In today’s case (Moore v. Hind) the Plaintiff was injured in 2 motor vehicle collisions.  Both trials were set to be heard together.  ICBC brought an application to compel the Plaintiff to be assessed by Dr. Ray Baker, a doctor who specializes in so-called ‘addiction medicine‘.  This application was brought late in the litigation process.  ICBC argued that the medical evidence served by the Plaintiff’s lawyer gave a “clear and emphatic indication that the plaintiff may suffer a drug addiction problem” and as a result the need for the late application.
The Plaintiff disagreed arguing that ICBC could have pursued this line of inquiry earlier in the process.  Master Keighley agreed with the Plaintiff and dismissed the motion.  In doing so the Court placed weight on the late timing of this application and this proved fatal to ICBC’s argument.  Specifically the Court stated as follows:

[10] This application raises certain practical difficulties.  One is the question of whether a further examination and the likely preparation of a report at this time will jeopardize the existing trial date.  There is certainly very little time left now between the date of this application and the trial.  It is unlikely that the plaintiff would have sufficient opportunity to in any way rebut the findings in a report prepared by Dr. Baker.  It seems to me there is a substantial likelihood that should the order sought be granted, an application may be made to adjourn the trial.

[11] It also seems to me that this application is unnecessarily brought at a late date.  There was, to my mind, a significant indication of overuse or misuse of prescription drugs as early as a year ago, and arrangements might then have been made in a more orderly fashion to have an examination by Dr. Baker or another, with respect to these issues.

[12] Having read portions of Dr. Smith’s report, it seems to me, however, that the third parties may well be afforded an opportunity to yet achieve a level playing field by having their own expert, Dr. Smith, consider the reports, the clinical records and other information relating to the claim with regard to assessing the issue of the plaintiff’s prescription drug use and its impact potentially upon her claim.

[13] In this regard it seems to me that the prejudice to be suffered by the third party in not having an opportunity to have a further assessment is minimized, whereas the potential prejudice to the plaintiff is substantial.  She is depicted in the medical reports as being a highly tense, anxious individual, and it would seem, and indeed she suggests that she will be extremely prejudiced if this claim is not resolved at the earliest possible date.  There is also an issue of inconvenience which is of a relatively minor nature, in that she has another medical examination scheduled for the morning of the proposed examination and would be obliged to cancel that if ordered by the court to attend for an appointment with Dr. Baker.  She also then had made plans to visit with her mother in the Christmas holidays, beginning on the night of December 22nd.  Those issues of inconvenience are of a relatively minor nature and would not be conclusive in themselves.

[14] I am satisfied that the application should be dismissed.  It is simply brought at too late a date and it is likely that it will result in an adjournment of this trial, which the material before me indicates, if adjourned, would likely not be rescheduled until perhaps June of 2011.