A recent decision, Chew v Munoz et al, 2016 ONSC 1511,
highlights the importance of requiring defendants to schedule
independent medical examinations (IME) so that the reports will be
served within the timelines mandated by the Rules of Civil
Procedure. A failure to do so can result in the court refusing
to order the plaintiff to attend the IME, even if it is the
defendant's first request for one.
In Chew, the defendant, Intact Insurance, sought an
order compelling the plaintiff to attend an IME with a
psychiatrist, Dr. Lawrie Reznek. The IME was scheduled for 3 weeks
prior to the pre-trial conference, and was the first IME that
Intact had requested of the plaintiff.
The action arose from a motor vehicle accident that occurred on
May 11, 2010. Ms. Chew commenced an action against the defendant
driver and owner, who were insured under a policy with only a
$200,000.00 limit. Ms. Chew therefore also named her own insurer,
Intact, pursuant to the underinsured provisions in her policy.
Ms. Chew claimed damages relating to physical, psychological and
cognitive impairments caused by the motor vehicle accident. She
received treatment from a psychiatric nurse, a psychologist, a
psychiatrist and a neurologist. All of the records from these
treatment providers were served in 2013. Ms. Chew underwent an IME
with a psychiatrist and a neuropsychologist at the request of her
accident benefits insurer. These reports were also served to
Intact. She also underwent IMEs with a psychologist and
neuropsychologist at the request of her own counsel. These reports
were served in compliance with the timelines in Rule 53 of the
Rules of Civil Procedure.
The parties participated in a mediation in November 2015. Intact
indicated that it was only at the mediation that it became apparent
that the parties had assessed the plaintiff's damages
differently, and that trial was likely inevitable. On January 25,
2016, Intact advised the plaintiff of the IME with Dr. Reznek. When
the plaintiff refused to attend, a motion was brought to compel her
attendance at the IME.
The court refused to order Ms. Chew to attend the IME with Dr.
Reznek. J. Rady noted that the timelines for the service of expert
reports in Rule 53.03 are intended to ensure that a trial will
proceed without delays caused by the late service of expert
reports. They are also intended to ensure that a pre-trial
conference is "effective and meaningful because the case is
virtually trial ready."
The statutory provisions permitting the court to order an IME
are permissive, not mandatory. There is authority that a defendant
has a prima facie right to a first examination under the Courts
of Justice Act, and that delay itself was not reason alone to
deny relief. When a request for an IME is made, the court is to
consider the interests of justice and prejudice to the
J. Rady found that no real explanation had been given to
persuade the court to exercise its discretion to order the
plaintiff to attend the IME. Intact had been in possession of the
plaintiff's medical records for a considerable time, and they
had been delivered in a timely manner. She questioned why the
defendant should not be held to the same standard. The prospect of
a meaningful and informed pre-trial conference would be diminished
if the court only had the report of Dr. Reznek, as the plaintiff
would not be able to obtain a responding report in time. There was
also concern that the plaintiff's ability to obtain a
responding report could jeopardize the trial date (on September 26,
2016). J. Rady also noted that Intact was not without any expert
evidence based on an IME, as the evidence of the psychiatrist and
neuropsychologist could be secured by Intact for the trial.
If plaintiff's counsel serves their expert reports in a
timely manner, i.e. in compliance with the Rules of Civil
Procedure, and defence counsel attempts to have an IME that will
not allow for service of the expert report within the timelines of
the Rules, the Chew decision provides strong authority to
refuse the plaintiff's attendance at the IME. It is important
to note however, that in this case, the defendant had available to
it the expert evidence obtained by the accident benefits insurer,
which negated the defendant's prejudice arguments.
J. Rady also made an interesting comment in obiter that
may be useful in refusing a psychiatric defence IME. She questioned
whether a psychiatric opinion is necessary to respond to a
psychological opinion, but left the answer to that question for
Note: the defendant has sought leave to appeal J. Rady's
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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