Both the former and the new BC Supreme Court Civil Rules provide parties to a lawsuit with an ability to request an independent medical exam of the opposing party “If the physical or mental condition of a person is in issue in an action“.
Reasons for judgement were released today by the BC Court of Appeal explaining exactly what “in issue” means.
In today’s case (Jones v. Donaghey) the Plaintiff was an infant. He was removed from his home by the BC Ministry of Children and placed into foster care with the Defendants. The Plaintiff alleged that while in foster care the foster parents intentionally assaulted him by “violently shaking the infant“. The Plaintiff sued for damages.
In the course of the lawsuit the Plaintiff argued that the Defendant had anger management issues. In order to explore these the Plaintiff obtained a Court Order requiring the Defendant to be examined by a physician under Rule 7-6(1). The Defendant appealed the order. The BC Court of Appeal set aside the order finding that the Defendant’s mental condition was not “in issue” therefore the Rules of Court did not allow this to be explored through the independent medical exam process.
The BC Court of Appeal provided the following reasons:
 …since the purpose of pleadings is to define the “issues” of material or ultimate fact as between the parties, whether a proposition of fact is “in issue” for purposes of Rule 7-6(1) must be determined from an examination of the pleadings: Astels v. Canada Life Assurance Co., 2006 BCCA 110 at para. 4, 23 C.P.C. (6th) 266.
 “Relevant”, the term used by the chambers judge, belongs to the law of evidence.
 The relationship between relevance and issues of material or ultimate fact was explained in R. v. Watson (1996), 30 O.R. (3d) 161 at 172, 108 C.C.C. (3d) 310 (C.A.):
Relevance … requires a determination of whether as a matter of human experience and logic the existence of “Fact A” makes the existence or non-existence of “Fact B” more probable than it would be without the existence of “Fact A”. If it does then “Fact A” is relevant to “Fact B”. As long as “Fact B” is itself a material fact in issue or is relevant to a material fact in issue in the litigation then “Fact A” is relevant and prima facie admissible.
 This concept is succinctly illustrated, albeit using different terminology, in R. v. White,  2 W.W.R. 481 at 485, 45 C.C.C. 328 (B.C.C.A.), where the Court adopted a passage from S. L. Phipson, ed., Best on Evidence, 12th ed. (London: Sweet & Maxwell, 1922) at 6 that included these words:
The fact sought to be proved is termed the “principal fact”; the fact which tends to establish it, “the evidentiary fact”. When the chain consists of more than two parts, the intermediate links are principal facts with respect to those below, and evidentiary facts with respect to those above them.
 Thus, a material fact is the ultimate fact, sometimes called “ultimate issue”, to the proof of which evidence is directed. It is the last in a series or progression of facts. It is the fact put “in issue” by the pleadings. Facts that tend to prove the fact in issue, or to prove another fact that tends to prove the fact in issue, are evidentiary or “relevant” facts. And, as Professor Thayer said at 197, “Issues are not taken upon evidential matter.”…
 In my view, the chambers judge erred. The test under Rule 7-6(1) is not whether the mental condition of a person is “relevant” to an issue; rather, it is whether the mental condition is itself “in issue”. Moreover, Ms. Donaghey’s mental condition is not put “in issue” by the pleadings.
 The issue raised by Ms. Donaghey’s denial of the allegation in paragraph 16 of the statement of claim is whether she intentionally assaulted the plaintiff by violently shaking him. That Ms. Donaghey suffered from a personality disorder is not a material fact in respect of this issue, that is, proof that she suffered from a personality disorder would not in itself have legal consequences as between these parties.
 The “issue” raised between the plaintiff and Ms. Donaghey in paragraph 27 is whether Ms. Donaghey breached her duty of care to the plaintiff in any one or more of the specified ways. None of these allegations put Ms. Donaghey’s mental condition in issue.
 The issues raised as between the plaintiff and Ms. King and as between the plaintiff and the Director respectively in paragraphs 28(d) and 29(n) of the statement of claim are whether these defendants breached their duty of care to the plaintiff by leaving him with Ms. Donaghey when they “knew or ought to have known” one or more of the particularized facts. Thus, the issue in each case is the state of mind of these defendants. Proof that Ms. Donaghey suffered from a personality disorder would not entitle the plaintiff to success on these issues. Her mental condition is not a “definite proposition of … fact, asserted by [the plaintiff] and denied by [Ms. King/the Director], … which both agree to be the point which they wish to have decided”: Odgers, supra, at para. 5.
 Ms. Donaghey’s mental condition might be an evidentiary fact relevant to the issues raised in the paragraphs under discussion, as the chambers judge concluded. However, as I have said, relevance of the mental condition of a person to an issue is not the test under Rule 7-6(1). Rather, the person’s mental condition itself must be in issue to warrant an order pursuant to the rule and none of these allegations put Ms. Donaghey’s mental condition in issue.
 This situation may be contrasted with the more common situation in which a plaintiff claims damages on the basis that a defendant has negligently caused him or her personal injury. In such a case, the defendant’s denial puts the plaintiff’s condition, whether physical or mental or both, “in issue”. The plaintiff’s injury is a material fact and the failure to prove it will be fatal to the action. Accordingly, the defendant may be entitled to a medical examination pursuant to Rule 7-6(1) to obtain evidence of the plaintiff’s physical or mental condition. However, as I have explained, this is not such a case.
 For those reasons, I would allow the appeal, set aside the order that Ms. Donaghey attend for a psychiatric examination, and dismiss the plaintiff’s application.