Tag: responding reports

Permitting Late Expert Evidence in the Interests of Justice a Remedy to be Used "Sparingly"

Rule 11-7(6) discusses the circumstances when the BC Supreme Court can allow expert evidence to be introduced at trial which does not otherwise comply with the Rules of Court.  Reasons for judgement were released last week addressing this section.  In short the Court held that allowing non-compliant expert evidence to be introduced in the interests of justice is a discretion that “must be exercised sparingly, with appropriate caution, and in a disciplined way“.
In the recent case (Perry v. Vargas) the Plaintiff was injured in a collision.  On the last business day before trial the Plaintiff served a ‘supplementary report’ from her expert which bolstered the experts previous views, clarified statements made in the previous report, and lastly critiqued the defence medico-legal report.s
The Plaintiff argued the late report ought to be admitted as a ‘supplementary report’ pursuant to Rule 11-6(6) or in the alternative the Court should exercise its discretion to allow the non-compliant report in through Rule 11-7(6).  Mr. Justice Savage rejected both of these arguments and in doing so provided the following reasons:
[9]             Rules 11-6(6) (a party’s own expert) and 11-6(5) (a jointly appointed expert) are cognate provisions designed to deal with circumstances where an expert’s opinion “changes in a material way”. Rule 11-6(6) contains an election. In the case of one’s own expert, a party must determine whether it still seeks to rely on the expert report notwithstanding the material change. If it does so, the party must promptly serve a supplementary report.
[10]         Rule 11-6(6) was not intended to allow experts to add either fresh opinions or bolster reasons upon reviewing for the first time or further reviewing material under the guise of there being a material change in their opinion. To provide otherwise would surely defeat the purpose of the notice provisions contained in Rules 11-6(3) and 11-6(4) and the requirement of R. 11-7(1)…
[18]         Rule 11-7(6)(b) focuses on whether there is prejudice to the party against whom the evidence is sought to be tendered. Of course there are cases where reports are delivered a few days late where there is no prejudice. This is not such a case. Delivering a new expert report without any notice well outside of business hours on a Friday evening before a trial commencing Monday morning places the opposing party in obvious difficulties. In my view there is some prejudice to the defendants given the untimely delivery of the Late Report.
[19]         More generally, delivering expert reports on the eve of trial is antithetical to the purpose of the Rules regarding expert reports, which seek to ensure the parties have reasonable notice of expert opinions. Compliance with the Rules allows considered review of the expert opinions, the obtaining of important advice, and possible response reports. Under the former Rules, in Watchel v. Toby, [1997] B.C.J. No. 3150, 33 M.V.R. (3d) 115, Kirkpatrick J., as she then was, excluded in its entirety a late report delivered 12 days before trial where there was insufficient time to obtain any opinion evidence to answer the report.
[20]         Rule 11-7(6)(c) allows the court to admit expert evidence in the interests of justice. It is a separate provision so it can apply in circumstances where the relaxing provisions of Rules 11-7(6)(a) and (b) are not met. Effectively, it provides that the court retains a residual discretion to dispense with the other requirements of R. 11.
[21]         Context here is all important. This is the second scheduled trial. There was a trial management conference with comprehensive trial briefs prepared by both counsel.
[22]         In my view the discretion provided for in R.11-7(6)(c) must be exercised sparingly, with appropriate caution, and in a disciplined way given the express requirements contained in Rules 11-6 and 11-7. That is, the “interests of justice” are not a reason to simply excuse or ignore the requirements of the other Rules. There must be some compelling analysis why the interests of justice require in a particular case the extraordinary step of abrogating the other requirements of the Supreme Court Civil Rules. None was provided.
[23]         In the circumstances, the Late Report is not admissible.

More on Responsive Opinion Evidence Admissibility

Reasons for judgement were published recently by the BC Supreme Court, Vancouver Registry, addressing responsive expert reports and the discretion of the Court to adjourn a trial to permit late expert evidence to be introduced.
In the recent case (Lennox v. Karim) the Plaintiff was injured in a 2003 collision.   87 days prior to trial the Plaintiff served a medico-legal report diagnosing the Plaintiff with a meniscal tear.  The Defendant obtained a report addressing this injury and served it on the Plaintiff.  This report was served in less than 84 days before trail.  The Plaintiff objected arguing this report was late and that it was not truly responsive.  Mr. Justice Armstrong disagreed and admitted the report finding that it was responsive, and if not, the trial should be adjourned to allow admission of the report to address the relatively late disclosure of the meniscal tear.  The Court provided the following reasons:

[38] In this case, Mr. Lennox failed to alert the defendant to the central issue of a torn meniscus. His pleadings indicated an injury of both knees without any reference in specific to the torn meniscus. This is significant in this case, because the plaintiff was under the obligation to obtain a court order to permit Dr. Stewart to testify and if that order had been applied for, the defendant would have been put on notice at an earlier time as to the issue which became central to this case.

[39] In my view the Leith report, in the words of Smith J., is not a freestanding medical opinion that ought to have been served under Rule 11-6(3). It is in its entirety a responsive opinion directed solely to one opinion of Dr. Stewart relating to the plaintiff’s medical condition, that being the torn meniscus…

[42] If I am wrong in this decision, it would have also been my further opinion that in the circumstances of this case the defendant would have otherwise been entitled to an adjournment of the trial to secure the medical report of Dr. Leith if it was not otherwise admissible under 11-6(4). It seems to me that 11-1(2) is purposely directed at requiring the plaintiff and defendant to avoid the last minute introduction of medical evidence in cases which may have proceeded for many years on a different track or a different theory. I note that neither of the experts described in the CPC report have been or are going to be called as witnesses in this case, but I am not required to deal with that issue.

[43] It seems to me that Dr. Leith’s report can simply be admitted and I can ignore those provisions which in my view are not appropriate.

More on the Responding Report "IME" Limitation


Adding to this growing database of caselaw considering the relationship of Rule 7-6 and  Rule 11-6(4), reasons for judgement were recently released by the BC Supreme Court, Chilliwack Registry, demonstrating that “responding” independent medical exams will not be granted as a matter of course.
In the recent case (Godfrey v. Black) the Plaintiff was injured in a motor vehicle collision.  She sued for damages.  Her pleadings specifically identified an alleged TMJ Injury.  In the course of the lawsuit the Plaintiff was examined for discovery with respect to her TMJ pain.  She also served an expert report addressing this injury in compliance with the time-lines set out in the Rules of Court.
The Defendant brought an application for the Plaintiff to be assessed by a TMJ specialist of their choosing.  Their application was brought after expiry of the 84 day expert report service deadline   They argued an exam was necessary in order to obtain a responding report under Rule 11-6(4).   Master Caldwell disagreed and dismissed the motion finding no sufficient evidence was tendered to explain the need for a physical exam.  In doing so the Court provided the following reasons:
[2]  I am told that the pleadings, when they were issued, specifically identified among other things injury to the temporomandibular joint (“TMJ”).  That, it is said, and I agree, put the defence on specific notice that there was an issue relating to the jaw and the TMJ…
[9]  There is no evidence before me to indicate why this particular dental expert believes it necessary for him to do a physical examination of the patient.  In fact, the instruction letter from counsel specifically asks for among other things a critique of the report of the first dentist.  Many of those bullets which appear in the letter which I will not make further reference to appear able to be done on the basis of a criticism of methodology or findings as opposed to requiring an independent examination of the person of the plaintiff…
[13]  I have been referred to several cases, but the one which I find the most helpful is the case of Wright v. Brauer, 2010 BCSC 1282 a decision of Mr. Justice Savage in similar circumstances where he was dealing with a trial date in the near future and an examination such as this where there was no medical evidence as to why a physical examination was necessary in order to provide a truly rebuttal or critical report…
[15]  In my view, the same reasoning applies in this case…
[18]  This application comes late in the day, a year after the defence was well aware that TMJ was an issue that should be looked into.  Had they wished to get a full report, they were well able to make that application or the request earlier.  I am not satisfied on the material that there is a basis for me to infer from the submissions of counsel or the material filed that an independent medical examination of the person of the plaintiff is required in order for this dentist to provide a truly rebuttal report.
These reasons are unpublished but as always I’m happy to share a copy with anyone who contacts me and requests these.

Prejudice To Defendant Not Enough To Compel Plaintiff to Attend "Responding" IME

(Update November 16, 2011The 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:
[6]  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.
[7]  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.

More Judicial Authority of "Responsive" Independent Medical Exams

One of the New Rules which has received more attention than most is Rule 11-6(4) which deals with responsive reports.  The issue of whether the Court could order a Plaintiff to undergo a physical exam for a responsive report has been considered a good half dozen times.  In short the authorities have held that such an order is possible but the Courts have been conservative in making these orders to date.  Further reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this topic.
In this week’s case (Mahil v. Price) the Plaintiff was injured in a 2007 motor vehicle collision.  The Defendants did not order an independent medical report in the timelines allowed by Rule 11-6(3) and brought a motion for an exam less than 84 days before trial.  They argued that they only wished to obtain a ‘responsive’ report and that the report would comply with Rule 11-6(4).  Mr. Justice Voith held that such an appointment was permitted and allowed the order.  In doing so the Court provided the following reasons:








[21] Rule 7-6(1), formerly Rule 30, allows for the conduct of an independent medical examination. The object of Rule 30 was succinctly described by Finch J.A., as he then was, in Stainer v. ICBC, 2001 BCCA 133 at para. 8:

…the purpose of Rule 30 is to put the parties on an equal footing with respect to medical evidence. …

[22] The object of placing the parties on an equal footing is, however, only achieved in real terms if the parties also adhere to those rules which govern the timely exchange of both initial expert reports and responsive expert reports.

[23] The important relationship of what was Rule 30 and what is now Rule 7-6(1) and those Rules which pertain to the time limits for the exchange of expert reports has been recognized in other decisions. In Wright v. Brauer, 2010 BCSC 1282, Savage J. said at para. 9:

In the context of an action seeking compensation for personal injuries, the parties are on equal footing with respect to medical evidence if they can independently obtain medical evidence and if such evidence is served in accordance with the Rules.

[24] In the case of Mackichan v. June and Takeshi, 2004 BCSC 1441, Master Groves, as he then was, said at para. 11:

… It is not simply a question of putting the parties on a level playing field at this stage, it is a question of really balancing the prejudice which will result to the defendants in not having a report and the prejudice that will result to the plaintiff in having a report prepared late which would no doubt, I expect, cause an adjournment of the trial.

[25] If the defendants have Dr. Gropper prepare a properly responsive report, and if that report is delivered in accordance with the Rules, the interests of both parties are concurrently advanced and safeguarded.

[26] I have, based on a request I made, been advised by counsel for the defendants that Dr. Gropper would be able to deliver his report in advance of the 42 days provided for in Rule 11-6(4).

[27] Notwithstanding some misgivings about some of the issues advanced by the defendants, I do not believe that it would be either prudent or appropriate for me to pre-determine that the specific concerns raised by the defendants will not, in fact, be properly responsive to the Reports.

[28] I have, however, earlier in these reasons, identified with some precision the very narrow issues that the defendants assert they wish to respond to in the Reports. These reasons should provide some safeguard against Dr. Gropper’s report extending or straying beyond its permitted ambit, whether inadvertently or otherwise. I note, as did Saunders J., as she then was, in Kroll v. Eli Lilly Canada Inc. (1995), 5 B.C.L.R. (3d) 7 at para. 7 (S.C.), that truly responsive evidence:

… does not permit fresh evidence to masquerade as an answer to the other side’s report.

[29] I am therefore prepared to grant the defendants’ application. Costs are to be in the cause.









More on Responding Medical Reports and Physical Exams: Reconciling the Cases to Date


As previously discussed, a debate has arisen about if and when a Defendant is allowed to compel a Plaintiff to attend an ‘independent‘ medical exam in order to obtain a ‘responding‘ report under the BC Supreme Court Rules.  Very useful reasons were released this week by the BC Supreme Court, Victoria Registry, addressing and reconciling the various authorities considering this issue to date.
In today’s case (Labrecque v. Tyler) the Plaintiff was involved in three separate collisions.  He sued for damages and all three claims were set for trial at the same time.   In the course of the lawsuit the Plaintiff obtained  a report from his GP and from a physiatrist.  The Plaintiff intended to rely on the physiatrist’s report at trial.  The Defendants intended to rely on the GP’s report at trial.  The Plaintiff never attended a defence medical exam in the course of the lawsuit and as the trial neared one of the Defendant’s brought an application to compel the Plaintiff to attend an examination in order to get a ‘responding’ report.
In support of the application the proposed examiner swore an affidavit explaining that he needs to ‘physically examine the plaintiff and ask him the questions a doctor would ask in order to elicit information upon which to ground my opinions‘.    The application was dismissed finding that this falls short of what is required in order for a physical exam to be ordered as part of a responding report.  In dismissing the application Master Bouck provided the following useful reasons reconciling the authorities addressing this issue to date:

[28] In Wright v. Bauer, the court recognized that Rule 11-6(4) “filled a lacuna” in the Rules governing civil procedure in this province: para. 12. Parties are now specifically governed by a Rule regarding delivery of responsive written expert evidence. Prior to this Rule’s enactment, the delivery of such evidence was governed by common law principles.

[29] In that case, the application for an independent medical examination was brought nearly one month before the defence would have been required to serve a responsive report.

[30] In dismissing the defendant’s application, the court found that the applicant had not met the necessary evidentiary threshold justifying an order under Rule 7-6: para. 21.

[31] The same result is found in Boudreau v. Logan and Crane v. Lee, supra.

[32] In contrast, the court in Luedecke v. Hillman was satisfied that an order should go requiring the plaintiff’s attendance at an examination…

[35] In my view, the principles enunciated in Luedecke and Wright are consistent and entirely reconcilable. The difference between the outcomes in these two cases lies in the facts.

[36] In both cases, the court concerned itself with the evidence presented to support the necessity of an examination as well as the question of prejudice.

[37] Here, the evidence from Dr. Piper as to the necessity for an examination is rather general in nature. Dr. Piper refers to the reports of both Dr. Grimwood and Dr. MacKean when in fact the responsive opinion would concern only the latter’s report. Unlike the evidence from the proposed examiner in Luedecke, Dr. Piper does not specifically identify the “medical evidence” (other than the reports themselves) that can only be addressed if a physical examination of the plaintiff occurs. Rather, Dr. Piper’s evidence suggests that an examination is necessary to respond generally to the subject matter of the plaintiff’s case and, as such, is no justification for the order sought: Luedecke at para. 52.

More on The New Rules of Court, IME's and "Responding" Medical Reports


Precedents addressing whether an independent medical exam can be ordered to permit a Defendant to obtain a ‘responding‘ report are still being worked out by the BC Supreme Court.  (You can click here to read my archived posts addressing this topic) Reasons for judgement were released today by the BCSC, Victoria Registry, further addressing this issue.
In today’s case (Hamilton v. Demandre) the Plaintiff was involved in 2 separate motor vehicle collisions.  She claimed she was injured in the first and that those injuries were aggravated in the second crash.  Both lawsuits were set for trial at the same time.   One of the alleged injuries was “visual vestibular mismatch with associated dizziness, motion sickness, balance problems and double vision“.
The Plaintiff submitted to medical exams with a neurologist and an orthopaedic surgeon at the request of the Defendant in the first crash.  The Plaintiff also attended an examination with a psychiatrist at the request of the Defendant in the second crash.
In support of her claim, the Plaintiff served reports from various experts including an ENT specialist.    These reports were served in compliance with the time lines set out in the Rules of Court.  The Defendant in the second crash then asked that the Plaintiff attend a further exam with an ENT of their choosing.  The examination was to take place less than 84 days before trial.
The Defendant argued that this exam was necessary in order to obtain a ‘responding‘ report.  The Plaintiff opposed arguing a further exam was not necessary.  Master Bouck agreed with the Plaintiff and dismissed the application.  In doing so the Court provided the following useful reasons:

[33] In a nutshell, the defendant submits that an ENT examination is required to rebut the opinion that the plaintiff’s ocular vestibular problems have worsened as a result of the second accident.

[34] Dr. Longridge’s report predates the second accident; as such, it is not of assistance to the defendant’s argument. If anyone were to rely on this report to obtain a rebuttal examination, it would be the defendants in the First Action.

[35] In any event, the complaints of ocular vestibular problems are of longstanding. This is not a case of a new diagnosis or even a suggestion that a referral to such an ENT specialist is medically required. Dr. Ballard merely opines that a referral to such a specialist is a possibility if the plaintiff’s symptoms continue. Moreover, Dr. Moll, whose opinion was clearly available to the defendant for some time, discusses these symptoms in his report of January 21, 2009.

[36] As submitted by the plaintiff, the defendant chose to pursue a psychiatric, rather than ENT opinion, knowing that the ocular vestibular complaints formed a significant part of the plaintiff’s claim.

[37] As for the other opinions offered, the experts are in agreement that the plaintiff’s condition has worsened, but that treatment may yet alleviate or reduce those symptoms.

[38] The defence clearly has a theory:  the plaintiff is malingering and/or suffers a somatoform disorder. To have the plaintiff examined by an ENT specialist for an assessment that will either be diagnostic in nature and thus not true rebuttal; or merely to prove a negative, that is to confirm that there is no physiological cause for the balance and visual disturbances, would be inconsistent not only with the authorities cited to me, but also with the purposes of Rule 7?6 and 11?6 (4).

[39] On the material before me, I conclude that any report forthcoming from Dr. Bell would be fresh opinion evidence masquerading as answer to the plaintiff’s reports.

[40] In short, the defendant has failed to meet the necessary evidentiary threshold which might support an order for the examinations requested. The application is thus dismissed with costs in the cause.


Caselaw Update: Independent Medical Exams and Responding Reports


As previously discussed, Rule 11-6(3) of the new BC Supreme Court Civil Rules requires expert reports to be served 84 days prior to trial.  Rule 11-6(4) requires “responding” reports to be served at least 42 days prior to trial.  The issue of whether a Defendant is able to force a plaintiff to attend an independent medical exam” for the purpose of obtaining a responding report is currently being worked out by the BC Supreme Court.
Two further cases have been brought to my attention addressing this topic and with these the bulk of the judicial authorities to date demonstrate that it may be very difficult for a Defendant to force a late ‘independent‘ examination to obtain a responding report.
Both of the recent cases (Crane v. Lee and Boudreau v. Logan) involve ICBC injury claims.  In both the Plaintiff served expert reports discussing the extent of their accident related injuries.  The Defendants applied to compel the Plaintiff to attend an independent exam inside the 84 day deadline in order to obtain responding reports.  Master Caldwell presided over both applications and dismissed them both.  In doing so the Court relied on Mr. Justice Savage’s reasoning in Wright v. Brauer and ruled that that precedent was “on all fours” with the present applications.  Master Caldwell repeated the following reasons from Mr. Justice Savage:

[18]         However, at this point in time in the action, the defendants are limited to what Mr. Justice Williamson referred to in Kelly, supra, as “truly responsive rebuttal evidence”.  The application must be considered in that light; the question on this application is not one of notice, but whether the Examination should be ordered to enable the defendant to file responsive evidence.  The authorizing Rule, 7-6(1) uses the term “may”.

[19]         In Kroll v. Eli Lilly Canada Inc. (1995), 5 B.C.L.R. (3d) 7, Sanders J., as she then was, noted that “true response evidence, does not permit fresh opinion evidence to masquerade as answer to the other side’s reports”.

[20]         In C.N. Railway v. H.M.T.Q. in Right of Canada, 2002 BCSC 1669, Henderson J. considered the admissability of “reply reports” holding that only the portions of the reports that provided a critical analysis of the methodology of the opposing expert were admissible as responsive evidence.  The portions of the reports describing the authors’ own opinions on the matters in issue were not admitted.

[21]         In this case, the defendants do not explain why an examination is required in these circumstances, other than a statement by a legal assistant that counsel says such is “necessary to properly defend this action and to respond to the reports of Dr. Weckworth and Dr. O’Connor”.  Master McCallum in White v. Gait, 2003 BCSC 2023 declined to order an examination where it had not been shown why such was required to produce a responsive report.

These cases, in total, seem to stand for the proposition that a Defendant needs to have sworn evidence from the proposed medical examiner explaining why physical examination is required in order to provide a responding report (which is what happened in Luedecke v. Hillman).  Absent this, late independent medical exam applications are being dismissed by the BC Supreme Court.

As of today’s date the Crane and Boudreau decisions are unpublished.  As always I’m happy to provide a copy of these cases to anyone who could benefit from them.  You can request a copy by filling out the form on this link.

The Debate Goes On… Independent Medical Exams and "Responsive" Expert Evidence


Rule 11-6(3) of the new BC Supreme Court Civil Rules requires expert reports to be served 84 days prior to trial.  Rule 11-6(4) requires “responding” reports to be served at least 42 days prior to trial.  The issue of whether a Defendant is able to force a plaintiff to attend an “independent medical exam” for the purpose of obtaining a responding report is currently being worked out by the BC Supreme Court.  Reasons for judgement were released last week demonstrating this matter remains a live issue.
Earlier this year, Mr. Justice Savage declined a defence motion to compel a Plaintiff to attend a doctor’s examination to obtain a responding report finding that an independent examination of a Plaintiff is not necessarily required since responding reports are to be strictly limited to “a critical analysis of the methodology of the opposing expert”
In a case released last week the Court reached a seemingly opposite result with a finding that an independent medical exam can be compelled to allow a Defendant to obtain a responding report in a personal injury claim.
In last week’s case (Luedecke v. Hillman) the Plaintiff was injured in a BC motor vehicle collision.  He served his expert reports in the timelines required by the Rules of Court.  The Defendant sought an order for an independent medical exam to obtain a responding opinion.  The Plaintiff opposed arguing that a medical examination is not necessary to obtain a truly responding opinion.  Mr. Justice Cullen disagreed and upheld a Master’s order compelling the Plaintiff to see the Defendant’s doctor.  In doing so the Court noted as follows:

[49]        Although the plaintiff submits that Dr. Reebye should be limited in his report to “criticizing the methodology or the research or pointing out facts apparent from the records which the other examiners may have overlooked” based on Justice Savage’s apparent reliance on C.N. Rail, supra, I do not take from Savage J.’s judgment that responsive opinions are invariably limited to “a critical analysis of the methodology of the opposing expert.”

[50]        In C.N. Rail, supra, Henderson J. was dealing with rebuttal evidence in the classic sense described by Southin J.A. in Sterritt v. McLeod, supra, as simply evidence responsive to some point in the oral evidence of the witness called by the defendant.

[51]        What is at issue in the present case is a different form of responsive evidence, recognized in Stainer v. Plaza, supra, as distinct in paragraph 15, where Finch J.A. ( as he then was) noted:

The third condition in the order is directed to the third party calling an independent medical examiner “for rebuttal evidence” I understand from counsel that this refers not to rebuttal evidence as generally understood, but to evidence that is purely responsive to medical evidence which the plaintiff has led as part of her case.  It would not apply to opinion evidence offered by the third party on subject matters not adduced in the medical evidence adduced by the plaintiff. [underlining added]

[52]        I thus conclude that what is referred to in Rule 11-6(4) is not akin to rebuttal evidence such as that called by a plaintiff in response to a defendant’s case, with its consequent limitations.  Nor is it akin to expert evidence that responds generally to the subject matter of the plaintiff’s case.  Rather, it refers to evidence that is “purely responsive” to the medical evidence which the other party has called.

[53]        As such, it has inherent limitations, but not necessarily the same limitations that Henderson J imposed on the true rebuttal evidence he was dealing with in C.N. Rail, supra.

[54]        I agree with the conclusion of Mr. Justice Savage in Wright v. Brauer, supra, to the effect that there is an evidentiary threshold to be met before an order under Rule 7-6(1) should be made in contemplation of an expert’s report under Rule 11-6(4).  That threshold is different from that for ordering an expert’s report under Rule 11-6(3).  To reach the requisite threshold under Rule 11-6(4) the applicant must establish a basis of necessity for the examination to properly respond to the expert witness whose report is served under subrule (3) by the other party.  It is not simply a matter of demonstrating a need to respond to the subject matter of the plaintiff’s case.

[55]        Clearly, that threshold was not met in the case before Savage J.  In the case before me there is an affidavit from Dr. Reebye setting forth a basis for the examination sought, although ultimately what Dr. Reebye may regard as purely responsive may be different from that which the trial judge eventually concludes to be so.  That issue must await another day.  Here I am dealing with a more limited issue, and I am satisfied that on the basis of Dr. Reebye’s affidavit the evidentiary threshold is met and the order of Master Scarth should be upheld.

[56]        I am alive to the concern expressed by the plaintiff’s counsel that Rule 11-6(4) may be seen as a means for defendants to circumvent the more onerous notice provisions of 11-6(3) and routinely seek to obtain reports that more properly should be sought under that latter rule.  I conclude, however, that such a concern can be met as it was with the practice of having opinion evidence without notice under the old Rule 40A.  In that regard, the words of Williamson J. in Kelley v. Kelley (1995), 20 B.C.L.R. (3d) 232 (S.C.) are apt:

I would restrict, of course, as courts I think must, the practice of having opinion evidence without notice strictly to truly responsive rebuttal evidence, and I think if that rule is carefully observed, there should be no difficulties.

As with judicial precedents developed under the former rules, I expect there will be some seemingly inconsistent judgements dealing with the issue of independent medical exams under the current rules and eventually the BC Court of Appeal will likely weigh in on the issue to bring some clarity to the law.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer