Medical evidence generally plays a key role in any personal injury claim. This is because the injury victim must be able to show that they indeed sustained an injury and that the other person’s negligence caused it. The injured party may be able to satisfy this requirement by obtaining evidence from their treating doctor or another independent medical professional. However, if the case turns litigious, the defence may argue that the injury is not as severe as the plaintiff suggests and/or that the defendant did not cause the alleged injury. Therefore, the defence may want to subject the plaintiff to a further examination by a doctor of their choosing so that they can gather evidence to challenge the plaintiff’s claims.
This blog post looks at the circumstances in which courts may order the plaintiff to attend medical examinations.
In Ontario, the Courts of Justice Act states that:
“Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.”
The term “health practitioner” can refer to a doctor, dentist or psychologist in these circumstances.
The Courts of Justice Act also states that the plaintiff shall answer the questions of the health practitioner as this is admissible evidence.
Additional rules may apply if a plaintiff is required to attend a medical examination. Under Ontario’s Rules of Civil Procedure:
- The court can order a second or further medical examination;
- The party being examined is required to provide the other party, unless ordered otherwise, with any reports and records made by health practitioners that have treated or examined them (unless the report or document was only made in preparation for litigation and will not be used as evidence); and
- After concluding the examination, the health practitioner needs to prepare a report for the parties.
When deciding whether to allow the defence to subject the plaintiff to a medical examination, the court must consider whether the examination is necessary, fair and if it is potentially prejudicial to the plaintiff.
The examination proposed must also be necessary. For example, a defendant is not entitled to examine the plaintiff concerning something that the plaintiff has not placed in issue.
Trial fairness is a key consideration for the court in these circumstances. If the plaintiff has been examined by a particular type of doctor for the purpose of preparing their claim, the general approach is to afford the defendant the same opportunity to have the plaintiff examined. However, this may not be the case if the proposed examination would prejudice the plaintiff.
The recent Ontario Superior Court of Justice decision in Ciubotariu v. Joshi demonstrates the approach taken by the court when deciding whether to order a personal injury plaintiff to attend a medical examination.
In this case, the plaintiff was involved in a motor vehicle accident in Brampton. She commenced court proceedings, claiming that the accident caused serious and permanent physical injuries resulting in neck, back, shoulder, hip, leg, knee and ankle pain.
The defendant sought an order requiring the plaintiff to attend a virtual examination by a physiatrist after the plaintiff had refused to attend.
The plaintiff filed four expert reports, including one from a doctor that concluded that the plaintiff’s pain was a “direct result of the injuries sustained in the accident.” The defendants had previously filed a report from their chosen physiatrist based only on a review of the plaintiff’s expert reports, not an examination of the plaintiff.
The plaintiff argued that the defendant should not be entitled to an examination because they already chose a paper review rather than arranging an examination within the timeframe laid down in the rules for the service of expert reports. Further, the plaintiff claimed that there was no new evidence since their physiatrist’s initial report.
Justice André said:
“I conclude that the necessity criterion has been met by the Defendants given that [the plaintiff’s expert] report was only filed on December 22, 2022 and that [the defendant’s physiatrist] has not conducted any real assessment of the Plaintiff. A Defendant has a right to have an independent medical examination take place before a specialist of his or her choice.”
His Honour explained that trial fairness dictated that both parties be given equal opportunity to present their evidence at the trial. This “trumped” the need to comply with the rules for the service of expert reports. It would be unfair if the plaintiff’s expert report, which concluded the injuries were caused by the accident, went unchallenged.
Justice André also thought granting the defendant’s request would not prejudice the plaintiff or delay the trial. His Honour considered that the defendant’s ability to challenge the plaintiff’s evidence was more important than the fact that the defendant had known about the plaintiff’s claim based on chronic pain for more than three years but waited a substantial amount of time to seek a medical examination of the plaintiff.
As a result, the Court granted the defendant’s request for the plaintiff to attend the medical examination.
The experienced personal injury team at Campbell Litigation has the knowledge and resources to guide you through the entire personal injury process. Bringing a personal injury claim for compensation can be a lengthy and complex process. Therefore, our lawyers provide clients with an assessment regarding the prospects of obtaining compensation for their injuries and help clients navigate the necessary procedural steps in order to pursue a claim. To arrange a free initial consultation to discuss your case, please call us at 519-886-1204 or contact us online.