No Right to IME in Absence of Adequate Supporting Evidence

A just-released Superior Court decision reminds us that defendants are not automatically entitled to have a personal injury plaintiff examined by multiple medical practitioners, from various disciplines. They must establish, through evidence, why such examinations are needed.

In Nelson v. Thiruchelvam, the plaintiff had been involved in two MVAs. As is usually the case, each defendant alleged that the plaintiff’s injuries were mostly attributable to the other’s accident.

At the time of this motion, heard by Master Joan Haberman, neither defendant had yet had the plaintiff seen by any doctor. However, the plaintiff had been examined by two psychiatrists retained by her AB carrier, Liberty Mutual, which was also the liability insurer for the defendant in the first accident. (The plaintiff was involved in a third lawsuit in relation to her accident benefits.)

Each of the two tort defendants wanted to have the plaintiff examined by a psychiatrist, a physiatrist and a neurologist. The plaintiff had refused to attend any IMEs at all.

Master Haberman was clearly very unhappy with the quality of the affidavits that had been filed by all three parties (the plaintiff and the two defendants) on the motion. She did not think that either defendant had spelled out just why they needed to have the plaintiff examined by specialists from these three disciplines. She made it clear that pro forma or “boilerplate” language is not enough:

The evidence on these motions is critical, and the results will vary from case to case depending on the nature and quality of the evidence filed. While I am not prepared to go so far as some members of the court have done by requiring affidavit evidence from a physician regarding why a particular examination is needed, it is clear, in my view, that something far more than a boilerplate approach is required. At the very least, the evidence must explain why the particular examination is required (see Abergel v. Hyundai Auto Canada (2003) 28 C.P.C. (5th) 372). This means setting out the nature of the specialty of the proposed physician; indicating the type of evidence they can provide and explaining why it is necessary in the context of the injuries and symptoms complained of and the evidence already tendered by the plaintiff. In other words, what evidence will the plaintiff be calling at trial that must be addressed by this particular defence expert?

It is also important to bear in mind that a defendant’s task at trial is not to “solve the problem” or “get to the bottom” of the plaintiff’s complaints. It is therefore not appropriate for them to expect the court to sanction defence medical examinations by medical practitioners with a view to providing a new medical diagnosis. For the most part, these experts are generally called upon to refute the diagnosis already provided by the plaintiff’s treating or expert witnesses and to provide a much a rosier prognosis.

Because the plaintiff had been seen by two psychiatrists in connection with her AB claim and because her symptoms seemed to be mostly psychological, the Master ordered that the plaintiff undergo examinations by psychiatrists appointed by each of the tort defendants. But she refused to order that the plaintiff be examined by even one neurologist or physiatrist, let alone two.

This case is a cautionary tale. It underlines the importance of not using a “cookie cutter” or “standard form” approach in litigation. Judges are fond of saying that each case turns on its own facts and counsel are well-advised to remember this when preparing their arguments.

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