Court – Consent to Defendant Medical Exam Terms Or Risk Claim Dismissal

Forced consent is a strange concept and one that has found its way into injury litigation yet again.
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering a plaintiff to attend a Defence medical exam and to sign a consent form or risk claim dismissal.
In today’s case (Gill v. Wal-Mart Corporation) the Plaintiff alleged injury following a slip and fall.  The Plaintiff agreed to attend an independent medical assessment requested by the Defendant but refused to sign the doctor’s ‘consent’ form.  In ordering the Plaintiff to sign or risk claim dismissal Mr. Justice Funt provided the following reasons:

[39]         With respect to the Master’s second reason that the plaintiff would not be signing the form of consent voluntarily, I respectfully disagree. The plaintiff may choose not to sign the consent form in which case the IME will not be conducted. The defendant may, however, bring an application to strike the plaintiff’s claim against the defendant.

[40]         Although not necessary having regard to the binding authority of Kalaora, I note that the case at bar is readily distinguishable from Peel where our Court of Appeal set aside an order requiring particular parties to endorse a “consent order”. Ordering endorsement of a “consent” court order is not consent. In the case at bar, in context, the court is not forcing the plaintiff to sign the form of consent. If the plaintiff chooses not to sign the form of consent, the plaintiff’s claim may be struck. It is the plaintiff’s choice…

[52]         The plaintiff is ordered to sign the subject form of consent used by Dr. Travlos. If the plaintiff refuses to sign the form of consent, the defendant, Mr. Pandher, is at liberty to apply to have the plaintiff’s claim struck.

bc injury law, consent, Gill v. Wal-Mart Canada Corporation, Mr. Justice Funt

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ERIK
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When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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