In Nikolakakos v. Hoque, 2015 ONSC 4738, the Plaintiff refused to attend at a defence medical examination until defence counsel produced a copy of the letter of instruction to the expert. It was noted that the plaintiff is seeking production of the instructing letter before the defendants have made any decision as to whether they will be relying on the expert's report at trial.
Master Graham held that a party arranging a medical examination is not obliged to produce its instructing letter to the examining physician until the party elects to call that examining physician as a witness at trial. In addition, a party must also produce any further letters of instruction, such as providing additional medical records or surveillance. It is important to note that Rule 53.03(2.1) still requires the expert to include in his or her report any instructions provided.
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