More on Court Ordered Medical Exams and Travel


Further to my previous posts on this topic (which you can find here and here) further reasons for judgement were released by the BC Supreme Court, Vancouver Registry, addressing defence medical exams and the issue of travel.
In today’s case (Breberin v. Santos) the Plaintiff was injured in a motor vehicle accident.  The Defendants wished to send her for a medical exam.  The Plaintiff lived in Edmonton and argued that the exam should take place there.  The Defendants applied for a Court order to compel an exam in Vancouver.  In opposing the application the Plaintiff produced evidence from her doctor stating that “she is unable to travel….at the present time or in the forseeable future“.
Mr. Justice Willcock was not satisfied with this medical evidence and ordered that the exam take place with the Defendant’s chosen expert in Vancouver.  In doing so the Court provided the following reasons:




[5] The argument made by the parties is, first, for the defendants, that the defendants are entitled pursuant to Rule 7-6 to obtain an order requiring the plaintiff to attend at a medical examination and that the test to be addressed by the court in determining where and when the examination should take place is fully and accurately described by Master Bouck in the decision of Parsons v. Mears, 2011 BCSC 397.  In that case, the court says that the following principles are applicable to the question whether a plaintiff should be examined within British Columbia:

a.         The purpose of an independent medical examination is to put the parties on a basis of equality. It is not for the plaintiff to decide which doctor can examine him or her on behalf of the defendant …

b.         Nonetheless, an independent medical examination is an examination conducted by a person appointed by the court. The convenience of the plaintiff is to be considered in appointing such a person …

c.         Convenience to the plaintiff is but one of several factors for the court to consider in exercising its discretion under Rule 7-6: …

d.         It may be appropriate for the court to consider appointing a specialist other than the proposed examiner but only where the plaintiff demonstrates, on a preponderance of evidence, sufficient grounds to justify the court in concluding that its discretion should not be exercised in favour of the appointment of the defendant’s nominee …

[12] In my view, the logic of Master Bouck set out in the Parsons case is applicable both in relation to independent medical examinations within and outside British Columbia.  I am of the view that the plaintiff’s convenience should be considered in determining where the independent medical examination should take place.  I am also of the view, however, that the onus should fall upon the plaintiff to show that there is a reason to depart from the general rule that the defendants are entitled to choose the expert who should conduct the independent medical examination on their behalf.  Here, the plaintiff should be required to show some justification for requiring that the independent medical examination should take place in Edmonton.

[13] As I noted when I referred to the affidavit filed by the plaintiff in response to the application, there is very little evidence with respect to the nature of the medical problem that will prevent the plaintiff from attending at an independent medical examination.  The independent medical examination is scheduled in the relatively distant future, on July 8, 2011.  There is, in my view, sufficient time for the plaintiff to prepare and make careful arrangements to attend at that examination in July.  This is not a case where the independent examination is set late in the day or in circumstances that prevent the plaintiff from making appropriate arrangements so as to make it convenient for her to attend.

[14] I am not satisfied on the evidence that the plaintiff has established that there is any reason that justifies an order that she should be examined in Edmonton as opposed to Vancouver.  There is, on the other hand, considerable advantage to the parties in having the independent medical examination being conducted in Vancouver in that the expert will be available to attend at trial if required to do so and readily available for cross-examination.  Because the case is set for trial in Vancouver, I am of the view that it is in the interests of justice in this case to order that the independent medical examination take place here.  I am not satisfied on the evidence there is any reason to depart from the Rule that the defendant should be entitled to choose an appropriate expert to conduct the examination so as to put the parties on an equal footing.




bc injury law, Breberin v. Santos, Mr. Justice Willcock, Rule 7, Rule 7-6, Rule 7-6(1)

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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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