Mark G. Carter
Personal Injury & ICBC Lawyer in Vancouver

Blog | Personal Injury Lawyer Vancouver

Compelling a Plaintiff to Attend a Second IME

Until recently, the prevailing test used by courts to determine whether to compel a Plaintiff to attend a second medical examination was that provided in Hamilton v Pavlova, 2010 BCSC 493 as follows:

[11]           Rule 30(2) is a discretionary rule, and the discretion must be exercised judicially.  An independent examination is granted to ensure a “reasonable equality between the parties in the preparation of a case for trial”:  Wildemann v. Webster at p. 11 from the separate concurring reasons of Chief Justice McEachern.

[12]           Reasonable equality does not mean that the defendant should be able to match expert for expert or report for report:  McKay v. Passmore, 2005 BCSC 570 (CanLII) at para. 17, and Christopherson v. Krahn, 2002 BCSC 1356 (CanLII) at para. 9.

[13]            A second exam will not be allowed for the purpose of attempting to bolster an earlier opinion of another expert.  That is, there must be some question or matter that could not have been dealt with at the earlier examination:  Trahan v. West Coast Amusements Ltd., 2000 BCSC 691 (CanLII) at para. 48, and Norsworthy v. Greene, 2009 BCSC 173 (CanLII) at para. 18.

[14]           There is a higher standard required where the defendant seeks a second or subsequent medical exam of the plaintiff:  McKay v. Passmore, supra, at para. 17 and para. 29.

[15]           The application must be timely.  That is, the proposed examination should be complete and a report available in sufficient time to comply with the rules of admissibility and to allow enough time for the plaintiff to assess and respond if necessary:  Vermeulen-Miller v. Sanders, 2007 BCSC 1258 (CanLII) at paras. 47-48, relying in part on Goss v. Harder, 2001 BCSC 1823 (CanLII).

[16]           Finally, subsequent independent medical examinations should be reserved for cases where there are some exceptional circumstancesWildemann v. Webster, supra, at p. 3.

However, in Tran v Abbott 2018 BCCA 365 the Court of Appeal did away with the requirements of exceptional circumstances and a higher standard. Writing for a unanimous Court, Mr. Justice Savage held as follows:

[27]         In my view, there is nothing in the language of the Supreme Court Civil Rules, or in logic or reason, that would mandate exceptional circumstances as a requirement for a second IME. As noted by Blok J. in Kenny, a plaintiff displaying multifactorial injuries may appropriately be required to attend IMEs by a number of specialists (at para. 62). There is nothing exceptional in that.

[28]         The summary in Hamilton has been the foundation for the proposition that a higher standard is required to be met by a party seeking a second or subsequent IME. This supposed requirement, in my view, has no support in the language of the Rules. Simply put, different considerations apply to the assessment of whether a party should be granted a second or subsequent IME.

[32]         In my view, it is well-established that the purpose of an IME is to put the parties on an equal footing with respect to the medical evidence, and Rule 7‑6 specifically contemplates more than one IME: Wright v. Sun Life Assurance Company of Canada, 2014 BCCA 309 at para. 31.

[33]         Multiple examinations may be appropriate and necessary where a variety of injuries are alleged, or the etiology of illness is not straightforward. In exercising its discretion on an application pursuant to Rule 7‑6, the court must consider the effect of refusing the order sought on the conduct of the trial.

Mark Carter