Non Disclosed Defence Report Thwarts Request for Second Independent Medical Examination

Reasons for judgement were recently given by the BC Supreme Court, New Westminster Registry, dismissing a defence request for an independent medical examination of a Plaintiff where the Plaintiff already saw an expert of the Defendants choosing but the Defendants have yet to produce a report from that expert.

In the recent case (Khan v. Cabrera) the Plaintiff was involved in a collision and sued for damages.   In the course of the litigation the Plaintiff consented to be explained by a neurologist of the Defendant’s choosing and “that report has not yet been disclosed by the defence to the plaintiff“.

The Defendant requested that the Plaintiff also be assessed by an orthopaedic surgeon arguing that such an exam is necessary to provide an opinion about a pre-accident orthopaedic injury the plaintiff had sustained and also to address collision related injuries.

The Court dismissed the application in large part because it was unclear what opinion the Defendants would already have the benefit of from the first appointment.  In short the litigation ‘playing field’ may already be even.  In dismissing the application Master Keighley provided the following reasons:

[14] Now, as I have indicated, the report of the neurologist prepared at the behest of the defence has not yet been disclosed. I am of course aware of the decision of the Court of Appeal in Tran v. Abbott, 2018 BCCA 365, and that case is helpful in emphasizing the central purpose of the rule, which is to place the parties as close as possible to an equal position with respect to medical evidence to be produced at trial. The case is important, to my mind, in making it clear that there is no longer a requirement to show special circumstances to justify the commissioning of a second report.

[15] The Court has to be satisfied, however, that there is evidence to suggest that the preparation of a further report is necessary to achieve that equality. There are a number of ways in which that evidence might be adduced. Sometimes the applicant may refer to a medical report produced by, in these circumstances, the plaintiff indicating that the party, for example, preparing the report lacked the expertise to deal with a particular issue and suggests that a reference be made to another specialist to resolve that aspect of the plaintiff’s condition.

[16] Sometimes the court has before it an affidavit from a specialist with whom the appointment is sought indicating that an examination is necessary to deal with issues within that expert’s expertise. I do not have either of those here. As was the case with my colleague Master Muir in Gray-Verboonen v. Mandurah, 2019 BCSC 1697, this is, as she noted in the case before her, one of those cases where the defence has the benefit of a recent assessment of the plaintiff but neither the plaintiff nor the Court has the benefit of such.

[17] I am simply not satisfied in this case on the basis of the evidence before me that a referral to an orthopedic surgeon is necessary to achieve the desired equality between the parties. It may well be that (although I appreciate the timeline is now somewhat shortened, not only with respect to the 84-day deadline but also the January trial), if the defence instructions change and the neurologist’s report is produced before the deadline, it may indicates that perhaps with other evidence that a referral should be made. But I am not satisfied on the basis of the evidence before me today that the applications should succeed. The relief sought in paragraphs 1 and 2 of the Notice of Application is, accordingly, dismissed.

To my knowledge this judgement is not reported but as always I am happy to share a copy with anyone that contacts me and requests the reasons.