Responsive Report Rule "Is Not a Licence" For Failing to Prepare Expert Evidence
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, criticizing and restricting the practice of allowing late defense medical examinations in the guise of obtaining ‘responsive’ reports.
In last week’s case (Timar v. Barson) the Plaintiff was injured in a 2011 collision and sued for damages. The alleged injuries included a concussion. In the course of the lawsuit the Plaintiff served a psychologists report which found the plaintiff suffered from a variety of cognitive issues. As the 84 day deadline approached the Plaintiff served the balance of his reports which included a psychiatric opinion that the Plaintiff suffered from an ongoing concussive injury from the collision. The Defendant applied for an independent medical examination beyond the 84 day deadline arguing they needed a responsive opinion in the face of these new reports. Mr. Justice Smith disagreed and in doing so provided the following reasons criticizing the ‘wait and see’ approach in defendant’s exercising their rights for independent medical exams:
 Rule 11-6(4) establishes a notice requirement for responsive evidence, but it does not exempt any party from the basic notice requirement in R. 11-6(3). In other words, it is not a licence for any party to wait until they have seen the other’s expert reports before deciding what expert evidence they need to obtain or rely on. Where each party has properly prepared its case and used the rights given by the Rules to discover the other party’s, responsive reports under R. 11-6(4) should rarely be necessary and IME’s for the purpose of preparing such reports should be rarer still.
 A party seeking an IME after expiry of the deadline in R. 11-6(3) must, as stated in Luedecke, satisfy the court that the examination is necessary to properly respond to an expert report served by the other party and not simply to respond to the subject matter of the plaintiff’s case.
 However, other factors beyond the meeting of that evidentiary threshold must be considered. The principle one that emerges from virtually all the cases is the extent to which the party seeking the examination can claim to be truly surprised by the expert evidence served by the other party: Jackson at para. 27; Compton v. Vale (4 June 2014), Kelowna M95787 at para. 11 (B.C.S.C.). Defendants who delay obtaining or serving expert evidence until after the plaintiff’s evidence is received, then attempt to introduce all of their expert evidence as response, do so at their peril: Crane v. Lee, 2011 BCSC 898 at para. 22; Gregorich v. Gregorich (16 December 2011), Victoria 09-4160 at para. 11 (B.C.S.C.)…
 A defendant in a personal injury action must therefore know that the plaintiff will have to rely on medical evidence if the matter proceeds to trial. Knowing that, the defendant must consider whether an IME is required in order to obtain a report that can be served at least 84 days before trial pursuant to R. 11-6(3). In order to determine that and to identify the type of medical expert to involve, the defendant must determine what the plaintiff is saying about his or her condition. An examination for discovery is the obvious, most effective and most important way to do that.
 The defendant in this case chose not to exercise its rights under the Rules. It did not conduct an examination for discovery and made no effort to obtain a timely IME. In the absence of such efforts, I must hold that the Master erred in permitting the defendant to use R. 11-6(4) as a means of obtaining its first medical evidence. In the limited time she had to deal with the application, the Master failed to fully and properly consider the limited purpose of R. 11-6(4) and its interaction with other rules as they affect actions of this kind.