Late Defence IME Disallowed

Court considered an application by the Defendants for an order requiring the Plaintiff to submit to an independent medical examination

In the recent case WRIGHT V. BRAUER, 2010 BCSC 1282 (“WRIGHT”), the Court considered an application by the Defendants for an order requiring the Plaintiff to submit to an independent medical examination by an orthopaedic surgeon on September 9, 2010. The trial in WRIGHT was set for November 18, 2010 and the Defendants’ application was made on Short Notice on September 8, 2010.

The Court began its analysis by pointing out that the new SUPREME COURT CIVIL RULES, B.C. Reg. 168/2009 establish that all expert reports must be served at least 84 days before the trial date pursuant to Rule 11-6(3), whereas Rule 11-6(4) requires that “response” reports be served 42 days before trial. Given these time requirements, the expert evidence sought by the Defence in this case could have been admitted under Rule 11-6(4) if characterized as a response report, but the 84-day requirement in Rule 11-6(3) had already lapsed at the time of the application. The Court in WRIGHT ultimately held that the examination being sought by the Defendants was not a response report and was therefore subject to the 84-day requirement.

The Court also referred to Rule 7-6(1), which provides general discretion for a court to order that a party undergo a medical examination where his or her physical or mental condition is at issue.

However, because the 84-day notice requirement had already passed, the Court in WRIGHT was only willing to use its discretion to admit “truly responsive rebuttal evidence” (at paragraphs 17-20):

I would expect that, in the ordinary course, an examination would be ordered under Rule 7-6(1) where a person’s medical condition was in issue in an action, provided it was requested in a timely way.

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”.

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”.

In C.N. RAILWAY V. H.M.T.Q. IN RIGHT OF CANADA, 2002 BCSC 1669, Henderson J. considered the admissibility 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.

After considering what constitutes a rebuttal report, the Court went on to find that simply labelling a report as “responsive” is insufficient where a medical opinion is sought which entails an entirely new examination. The fact that new evidence would inevitably be produced by such a medical examination caused the Court in WRIGHT to find that the Defendants could not bring themselves within the strictures of Rule 11-6(4) and its more lenient 42-day notice period.

The Court declined to exercise its discretion to order the examination, concluding at paragraphs 21-22 that:

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.

In my opinion, the bare assertion reported to a legal assistant in this case is insufficient to support an order under Rule 7-6(1) that the plaintiff attend the Examination, when the defendants are limited to providing response reports under Rule 11-6(4).  In the circumstances, the application is dismissed.  The plaintiff is entitled to costs of the application.

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