SABS Insurer Examination Doesn’t Preclude IME

Ottawa Case Management Master Robert Beaudoin recently clarified the law relating to the effect that an insurer examination under the SABS has on the right to an IME under s. 105 of the Courts of Justice Act .In La Forest et al. v. De Vouge, Federation Insurance et al.(http://www.canlii.org/on/cas/onsc/2004/2004onsc12088.html), the plaintiff was injured in a car accident. He sued the tortfeasor in negligence and also sued his accident benefits insurer, Federation Insurance. The plaintiff settled the tort claims, leaving only the AB claim to be litigated.

Prior to the commencement of the plaintiff’s action, Federation had had an insurer examination of the claimant pursuant to s. 42 of the SABS. Once the litigation had gotten underway, IMEs under s. 105 of the Courts of Justice Act were also arranged by the insurer for the tortfeasor. But Federation had never had its own IMEs under s. 105.

Counsel for the plaintiff argued that Federation ought not to be able to have the further examinations it sought, because (a) it had had an insurer examination under the SABS; and (b) it was entitled to make use of the IME reports that the tort defendant had obtained before settling.

The Master rejected both arguments. He ruled that “the fact that the Federation has conducted examinations pursuant to Section 42(1) of the SABS-1996 does not preclude a further examination under the Rules and section 105”. He also held that each defendant, adverse in interest and separately represented, is entitled to its own IME.

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