Further to my recent post on this topic, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating that ICBC may face an uphill battle when they apply for a Defence medical exam when the trial of the action is imminent.
In this week’s case (Agesen v. ICBC) the Plaintiff was injured in 2 separate motor vehicle accidents. The Plaintiff sued and both cases where scheduled to be heard at the same time. In support of his case the Plaintiff served medico-legal reports from a psychiatrist, a psychologist, an occupational therapist, his GP and a vocational assessment. The Plaintiff attended a defence medical exam with a neurosurgeon and a report was served by the Defendants.
The Defendants then requested that the Plaintiff be assessed by an orthopaedic surgeon. The Plaintiff would not consent and a court motion was brought. The Master who presided granted the motion and ordered the Plaintiff to be assessed by the orthopaedic surgeon. This appointment was to take place less than one month before trial. The Plaintiff appealed and succeeded. In overturning the Master’s decision Madam Justice Morrison reasoned that the late application would be prejudicial to the Plaintiff. Specifically, on the topic of timing of defence applications for medical exams the Court stated as follows:
 In Benner v. Vancouver (City), Mr. Justice N. Smith refused an application for a medical examination that came three weeks before trial. The application was three weeks before trial and the examination itself would have been less than two weeks before trial. In paragraph 19 of his judgment, Smith J. confirmed that the purpose of Rule 30 was “to place the parties on an equal footing in their ability to obtain medical evidence in a case where injuries are alleged.” He also referred to Rule 40A which requires service of expert opinions 60 days before trial, where a report delivered less than 60 days before trial is inadmissible unless the court were to order otherwise. In that case, the court found that the plaintiff’s physical condition was clearly put in issue by the pleadings. The defendants had full advantage and protection of routine production of medical records. I find that decision is applicable to this appeal.
 In dismissing the application for a medical examination at that late stage, at paragraph 35, Smith J. stated, “… the Rules of Court are intended to level the playing field as between the plaintiff and the defendant, a defendant who takes no timely steps to exercise its rights under the rules does so at its peril.”..
 In my view, it would be prejudicial to the plaintiff at this date to order an IME four weeks before a ten day jury trial. That the plaintiff has serious injuries is not a surprise to the defence. That his claim is substantial should certainly not have been a surprise. Any advantage to the defence at this point in time would be outweighed by prejudice to the plaintiff, not only because of his problems in dealing with examinations, depositions and preparation for trial, but also because of the very real possibility that a late medical opinion could well result in plaintiff’s counsel having to seek an adjournment of this trial, in order to meet unexpected or opinion evidence that may be prejudicial to the plaintiff. In this case, the balancing of prejudice must be in favour of the plaintiff, given the chronology of events.
As readers of this blog know the BC Supreme Court Civil Rules are being overhauled in July 2010. Some of the biggest changes in the new Rules relate to expert evidence and you can click here to read my article discussing these changes. The Court will continue to have the power to order multiple medical exams in particular circumstances but one thing that will change is that the concept of ‘proportionality’ will be introduced into the analysis. I will continue to post about these decisions as the new Rules is developed in its application by the BC Supreme Court.