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July 2017

A Lawyer's Guide to Discoveries and Timing of IMEs

Sabrina Lucibello
Annette Uetrecht-Bain,
Associate

Priya Chopra
Priya Chopra,
Law Student

By Annette Uetrecht-Bain and Priya Chopra
First presented at a Client Seminar

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.

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,
(a) was incorrect or incomplete when made; or
(b) 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),
(a) the writing may be treated at a hearing as if it formed part of the original examination of the person examined; and
(b) 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.

Counsel can also conduct a second examination for discovery if...

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 hasĀ 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.

Independent Medical Examinations can be booked at any time; however...

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.

A second medical examination is not lightly ordered...

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

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].


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