In the context of insurer examinations under the Statutory
Accident Benefits Schedule ("Schedule"), the
Superior Court has found that for the purpose of trial preparation,
a Plaintiff's consent is not required for Defendant's
counsel to meet with the examiners.
The Plaintiff was involved in a car accident in November 2004.
The Defendant then proceeded with insurer medical examinations
pursuant to s.42 of the Schedule (as it was then). The
examiners concluded that the Plaintiff could eventually return to
work with accommodations and/or retraining. Consequently, the
Defendant discontinued IRB in April 2007, taking the position that
the Plaintiff did not meet the "complete inability"
disability criteria with respect to alternate employment. The
Plaintiff disputed this and claimed to meet the disability
Prior to trial starting on October 14, 2014, Plaintiff's
counsel had corresponded with the s.42 examiners cautioning the
examiners against communicating with Defendant's counsel prior
to the trial (as they did not have the Plaintiff's consent to
discuss her healthcare information).
Subsequently, at the start of the trial, the Defendant brought a
an Order confirming that counsel for
the Defendant is entitled to discuss the subject matter of this
action with certain medical witnesses in advance of those witnesses
being called for Trial; and,
an Order directing counsel for the
Plaintiff to communicate in writing with the witnesses [sic] that
they may discuss the subject matter of this action, including
health information of the Plaintiff, with counsel for the
The Defendant argued that the Plaintiff has a reduced
expectation of privacy by participating in the litigation process.
Further, as is its right to prepare for trial, the Defendant wished
to refresh the memory of the examiner witnesses as many years had
passed since their examinations. The Defendant also asserted that
by obtaining these reports pursuant to s.42 of the Schedule, these
reports belonged to the Defendant. The Defendant also recognized
the distinction between s.42 of the Schedule and s.105 of the Courts of Justice Act,
acknowledging that leave of the Court would be required should any
testimony go beyond the examiner's initial reports.
The Plaintiff took the position that the s.42 reports did not
belong to the Defendant insurer, as a copy must be provided to the
Plaintiff. The Plaintiff alleged that the Defendant's intention
behind meeting with the examiners was to explore information
obtained after the initial report. The Plaintiff argued that there
was no statutory right for ongoing communication with these
examiners; potential unfairness would ensue if one party had access
to more medical information than the other, without the other's
The Honourable Justice Marc R. Labrosse noted that although
s.105 of the Courts of Justice Act would also permit a
"defence medical" if the insured person elected to start
a court action, s.42 of the Schedule may be the insurer's only
opportunity to obtain a report from an examiner of its choice. If
the Plaintiff had commenced a FSCO arbitration instead, the insurer
would be limited to the s.42 reports. There is no suggestion that
the examiner must be neutral. Justice Labrosse went on to note that
s.42 of the Schedule neither limits nor authorizes communications
between the insurer and examiner. The appropriateness of those
communications is determined on a case-by-case basis. Justice
Labrosse noted that the Plaintiff consented to the release of her
medical information in her Application for Accident Benefits
(OCF-1), so there was no concern that the examiner would disclose
confidential information to the Defendant.
Justice Labrosse concluded that no further consent is required
from the Plaintiff for the Defendant's counsel to meet with the
examiners, revisit the report and relevant health information, and
prepare the examiner for cross-examination. It would otherwise be
prejudicial to the Defendant to prevent them from doing so. In
effect, this is considered a part of the normal trial preparation
This is a truly unusual issue as the OCF-1 should be a full
answer to the concern. Had the approach taken by the Plaintiff been
successful, the insurer Defendant would have been deprived of the
ability to prepare their witnesses, which at the end of the day,
would not benefit the court process.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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