Canada: A Lawyer's Guide To Discoveries And Timing Of IMEs

BACKGROUND

In bodily injury claims, there are typically two types of examination of the plaintiff that take place: (1) Examinations for Discovery, and (2) Independent Medical Examinations.

The following are issues that typically arise in scheduling examinations for discovery and independent medical assessments.

ISSUES

  1. When should an examination for discovery be scheduled?
  2. When can a second examination for discovery be conducted?

    1. To correct answers
    2. Deterioration in the Plaintiff's condition
    3. After setting the action down for trial
  3. What are some best practices in regards to scheduling Independent Medical Examinations?

    1. When should Independent Medical Examinations be scheduled?
    2. How long does it take to book an Independent Medical Examiner?
    3. Should more than one type of Medical Practitioner be consulted?

ANALYSIS

1. When should an examination for discovery be scheduled?

The examinations for discovery are conducted after the parties have exchanged pleadings. The party wishing to conduct an examination for discovery must first provide the opposing counsel with an Affidavit of Documents.

In situations where the defendant is concerned that the plaintiff intends to push the matter to trial before it is ready, it may be advisable to refuse to schedule examinations for discovery until all relevant documents are produced, or until the defence is satisfied that it has sufficient documents to proceed. Depending on the schedules of all counsel involved, it may be possible or advisable to delay the discovery for up to a year after the claim is issued in order to ensure that the plaintiff does not set the action down for trial too early. On the other hand, proceeding to discoveries typically allows the parties to reach a resolution earlier and so in most cases delay is not advisable.

2. When can a second examination for discovery be conducted?

Counsel is permitted to conduct an examination for discovery of the opposing party only once.1 A second examination for discovery may be permitted in only a few circumstances:

a. To correct answers

Counsel may request the opposing party to re-attend for a second examination for discovery if it becomes apparent that information at the first examination for discovery was incomplete or incorrect.

According to Rule 31.09 of Ontario's Rules of Civil Procedure:

31.09 (1) Where a party has been examined for discovery or a person has been examined for discovery on behalf or in place of, or in addition to the party, and the party subsequently discovers that the answer to a question on the examination,

  1. was incorrect or incomplete when made; or
  2. is no longer correct and complete, the party shall forthwith provide the information in writing to every other party.

...

(2) Where a party provides information in writing under subrule (1),

  1. the writing may be treated at a hearing as if it formed part of the original examination of the person examined; and
  2. any adverse party may require that the information be verified by affidavit of the party or be the subject of further examination for discovery.2

This was discussed in the case Baron v Nguyen.3 In Nguyen, the plaintiff incurred injuries from a motor vehicle accident. The plaintiff's medical reports indicated that the plaintiff should have been able to eventually return to his full activities without permanent disability. However, the plaintiff's medical condition later deteriorated. Subsequent medical reports indicated that the plaintiff had incurred a permanent disability. The defendants brought a motion to the Ontario Superior Court of Justice to obtain permission to conduct a second examination for discovery. The purpose of this second examination for discovery was to verify the contents of the new medical reports. The motion was granted because the court found the information from the initial examination for discovery was no longer correct.

b. Deterioration in the Plaintiff's Condition

Counsel can also conduct a second examination for discovery if there is a deterioration in the plaintiff's condition. This was discussed in Angelov v Hampel.4 In Angelov, the plaintiff's medical condition significantly deteriorated after the initial examination for discovery. The defendants brought forward an application to the court to obtain a second examination for discovery. On appeal, the application for a second examination was allowed. The court stated:

The information was within the knowledge of the plaintiff only and the purposes of an examination are to enable the opposing party to learn what he has to meet. For one reason or another, the trial is delayed and there is some evidence that the condition of the plaintiff has deteriorated substantially. The defendant must be given the right of further examination for discovery so he will be prepared to meet fully the entire complaints of the plaintiff... The granting of a further examination for discovery is a discretionary matter to the Court and that discretion must be liberally exercised where there is some evidence, uncontradicted and of substance, of deterioration in the physical condition of the plaintiff following the examination for discovery5 [emphasis added].

The test in Angelov was later discussed in the 2006 case, Suchan v Casella.6 In Suchan, the plaintiff's prognosis had worsened after the examination for discovery. The defendants sought an order allowing a second examination for discovery, citing Rule 31.09 of the Ontario Rules of Civil Procedure. The court referred to the test in Angelov and stated:

The norm is a single examination for discovery by each adverse party, subject to proper follow-up questions on answers to undertakings where appropriate. In my view, exceptional circumstances such as a substantial deterioration in the plaintiff's condition are necessary before the court will allow a further examination of a plaintiff for the purpose of updating the plaintiff's condition. If this were not the case, the court would be sanctioning a practice of allowing counsel to fully examine an adverse party in the normal course, sit back and wait to see how "things turn out" and then update their evidence as the trial date approaches. This would in effect be giving parties a second "kick at the can"7 [emphasis added].

Ultimately, the defendants in Suchan were not successful in obtaining an order to conduct a second examination for discovery. The court found that the condition of the plaintiff had not worsened since the initial examination for discovery. Rather, it was the plaintiff's prognosis that had changed.

c. After the Action Has Been Set Down for Trial – Rule 48

In Suchan, the action had already been set down for trial. According to rule 48.04 of Ontario's Rules of Civil Procedure, all examinations must be completed before the action has been set down for trial. In its reasoning, the Court referred to Justice Macdonald in the 1992 case, Hill v. Ortho Pharmaceutical (Canada) Ltd.,8 where he stated:

The authorities make it clear that setting a matter down for trial is not a mere technicality of procedure. Before it can be vacated to permit any further discovery or other interlocutory proceedings, there must be a substantial or unexpected change in circumstances such that a refusal to make an order under Section 48.04(1) would be manifestly unjust9 [emphasis added].

3. What are some best practices in regards to scheduling Independent Medical Examinations?

Can medical examinations be conducted?

According to s.105 of the Courts of Justice Act,10 where a party has put into question their physical or mental condition, the court may order that party to undergo a physical or mental examination by one or more health practitioners.

105 (1) In this section,"health practitioner" means a person licensed to practise medicine or dentistry in Ontario or any other jurisdiction, a member of the College of Psychologists of Ontario or a person certified or registered as a psychologist by another jurisdiction, s. 105 (1); 1998, c. 18, Sched. G, s. 48.

(2) 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.

(3) Where the question of a party's physical or mental condition is first raised by another party, an order under this section shall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe that there is substance to the allegation.

(4) The court may, on motion, order further physical or mental examinations.

(5) Where an order is made under this section, the party examined shall answer the questions of the examining health practitioner relevant to the examination and the answers given are admissible in evidence11

Best practices regarding the scheduling of an Independent Medical Examination are very case specific.

a. When should Independent Medical Examinations be scheduled?

Independent Medical Examinations can be booked at any time; however, for practical reasons, it is not advisable to book the IME's until much later in the litigation.

The IME's should not be scheduled until the defendant has all of the pertinent information from the plaintiff regarding his or her injuries. The information will typically be made available in the affidavit of documents, testimony of the plaintiff at discoveries, and undertakings arising from the discoveries.

In a jurisdiction where mediation is required, independent medical examination might be advisable if there is a very discrete issue that can be addressed by a medical practitioner that could resolve the issues in the litigation (e.g. the ongoing impact of an unrelated condition to the plaintiff's current functioning such as cancer, COPD, or pre-existing medical issues). However, if the defendant has a good picture of the plaintiff's medical history and current complaints and treatment from the treating medical reports, it may be advisable to delay independent medical assessments until after the mediation due to the significant costs associated with the examinations. Further, the outcome of the independent medical examination cannot be guaranteed, and it may not be favourable to the defendant's position.

Overall, it is tactically best to schedule the IME as close to the pre-trial as possible. This is to ensure the accuracy of the contents of the medical report, and to make sure the selected medical practitioner has the most up to date information possible.

b. How long does it take to book an Independent Medical Examiner?

The timeline to book a medical examiner depends on the injury requiring examination. The more severe or unique an injury, the further in advance a medical examiner should be scheduled. This is because severe and unique injuries should be examined by a specialist. Appointments with specialists usually take six to eight months to secure. Medical examiners can be obtained for injuries that are less severe in approximately one to two months.

c. Should more than one type of Medical Practitioner be consulted?

Under the Courts of Justice Act, the defendant is only entitled (as of right) to obtain one independent medical report. However, the Act contemplates further examinations to be ordered by the court under certain circumstances.

The following questions can be asked when the defendant is assessing the need for further examinations:

  1. Has the defendant obtained an expert to respond to all of the plaintiff's medical-legal reports?
  2. Did the plaintiff complain of an issue consistently in the medical records and at discovery that has not been addressed by the plaintiff's lawyer? If yes, you may want to obtain a medical expert to rule out that this complaint causes legitimate functional issues or whether it was caused by the accident.
  3. Is there a pre-existing issue or unrelated medical issue that could impact the plaintiff's functioning and that has not been addressed by way of medical assessment?

Often, opposing counsel will agree to have the plaintiff attend more than one examination particularly if the plaintiff has numerous medical-legal reports. If the plaintiff's lawyer does not agree, then the defendant will need to bring a motion to compel the plaintiff to attend the assessment.

The onus is on the moving party to satisfy the court that a further medical examination is warranted. A second medical examination is not lightly ordered because it is considered extremely intrusive to the plaintiff.

The following are factors considered by the court (see Bonello v. Taylor):12

  1. The party seeking the order for a further examination must demonstrate that the assessment is warranted and legitimate, and not made with a view to delaying trial, causing prejudice to the party, or simply corroborating an existing medical opinion;
  2. A request may be legitimate where there is evidence that (a) the party's condition has changed or deteriorated since the date of a previous examination, (b) a more current assessment of the plaintiff's condition is required for trial, (c) the plaintiff served specialist reports from new assessors after the defendants had conducted their medical assessments, or, (d) some of the party's injuries fall outside the expertise of the first examining health practitioner;
  3. Some cases take the view that the need for a "matching report" – i.e. a report from a defence expert witness in the same specialty as a plaintiff's expert – is not, in and of itself, a sufficient reason to order a further defence medical... [T]rial fairness should operate as the guiding principle... [I]f the plaintiff has decided that expert evidence from one specialty based on an examination of the plaintiff is relevant to the adjudication of her claim at trial, courts should be loath to deny the defence a fair opportunity to respond with expert evidence from the same specialty based on an assessment of the plaintiff...
  4. Where the request is for the examination of the plaintiff by a person who is not a health practitioner, such as a rehabilitation expert, the defendant must demonstrate that the proposed examination is necessary as a diagnostic aid to the health practitioner who is conducting the defence medical examination;
  5. A request for a second examination must be supported by sufficient evidence to persuade a court of the need for the further examination...
  6. While fairness, or "creating a level playing field", may constitute a legitimate reason for ordering a second examination, someone with knowledge of the evidence in the case must provide evidence of unfairness for the court to consider; and,
  7. A court should consider whether the request for a further examination would impose an undue burden on the plaintiff in light of the number of examinations already conducted of her by the defence.13

Footnotes

1. R.R.O. 1990, Reg. 194, r. 31.03 (1); O. Reg. 438/08, s. 28 (1).

2. R.R.O. 1990, Reg. 194, r. 31.09 (1-2).

3. 1991 CarswellOnt 396, 29 A.C.W.S. (3d) 756 [Nguyen].

4. 1965 CarswellOnt 599, [1965] 2 O.R. 178 [Angelov].

5. Ibid at para 5.

6. 2006 CarswellOnt 3775, [2006] O.J. No. 2467 [Suchan].

7. Ibid at para 55.

8. 1992 CarswellOnt 351, [1992] O.J. No. 1740.

9. Ibid at para 10.

10. R.S.O. 1990, c. C.43.

11. Ibid at s. 105 (1-5).

12. 2010, ONSC 5723.

13. Ibid at para 16 [footnotes omitted].

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions