Court Has Jurisdiction to Overturn an IME Order After the Examination is Complete

If a party to a lawsuit is ordered to attend an independent medical exam can a Court hear an appeal of the order after the examination is complete?  The BC Court of Appeal addressed this in reasons for judgement released today and the answer is yes.
In finding that an appeal of an IME order is not moot even after the examination takes place the Court provided the following reasons:
[23]         The Insurers submit that the appeal is moot because prior to commencement of his appeal Dr. Wright attended the IME, answered the questions posed by Dr. Connell, completed and submitted the 13-page questionnaire referenced in the order, and completed and submitted the Authorization and Consent form and the Governing Law and Jurisdiction Agreement form referenced at para. 4 of the order. In consequence, the respondents say Dr. Wright has now complied with all of the substantive provisions of the order and given that compliance, the appeal should be quashed as moot…
[29]         Items 7 to 11, generally speaking, deal with the consequences of the IME order and seek certain specific relief arising out of that order. For example, item 8 seeks that the expert witness report prepared by Dr. Connell, together with copies of his notes and medical records, be destroyed. These issues give life to the appeal and items 1 and 2 which seek to set aside the order granting the IME. Given that the Insurers may rely on that report at trial, it cannot be said that the issue is moot. If this Court concludes that the IME order should not have been made, it will be necessary to determine what relief, if any, is available to Dr. Wright and that relief could arguably include some prohibition or restriction on the use of Dr. Connell’s report.
[30]         In the circumstances therefore I would dismiss the application to quash.

Wright v. Sun Life Assurance Company of Canada

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ERIK
MAGRAKEN

Personal Injury Lawyer

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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