Prejudice To Defendant Not Enough To Compel Plaintiff to Attend "Responding" IME
(Update November 16, 2011 – The case discussed in the below post has now been published and full reasons for judgement can be found here)
One of the patterns that is becoming very clear under the New Rules of Court is that Parties ignore the 84 day requirement for exchange of expert evidence at their peril.
Often times Defendants apply for an order compelling a Plaintiff to attend an Independent Medical Exam beyond this deadline. Numerous cases have considered such applications with the argument that an assessment is necessary in order to obtain a ‘responding‘ report under the more generous 42 day deadline of Rule 11-6(4). Reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, considering and rejecting such an argument.
In today’s case (Scott v. Ridgway) the Plaintiff was injured and sued for damages. In the course of the lawsuit the Plaintiff served the report of a vocational consultant. The Defendant applied for an order to compel the Plaintiff to attend an independent exam in order to obtain a responding report. The Defendant brought the application after the 84 day deadline. Madam Justice Kloegman dismissed the application finding that prejudice is not enough to compel an IME for the purpose of a responding report. The Court provided the following useful reasons:
 I am not persuaded that the plaintiff is required to attend before Dr. Banks in order for the defendant to file a responsive report. I am aware of the prejudice claimed by the defendant that their expert’s opinion may be given less weight because of lack of examination of the plaintiff. However, if they are prejudiced, it is of their making and not the result of any conduct of the plaintiff.
 The rules are clear. They must be obeyed in the absence of special circumstances. There are no special circumstances here that would allow the defendant to file a report containing fresh opinion. The defendant will be restricted to analyzing and respond to the plaintiff’s report.
I should note that some previous cases have ordered physical examination for responding report purposes, however, in such cases the Court was presented with affidavit evidence from the proposed expert explaining why such an examination is necessary.
In today’s case the Defendant did provide an affidavit from a doctor but the court placed no weight in it and criticized it for being “lifted from another affidavit sworn by another expert in another case with other expertise than that of Dr. Cook”.
Today’s reasons are unpublished but as always I’m happy to share a copy with anyone who contacts me and requests these.