Who pays a medical examination “no-show” fee?

Recent Ontario decisions continue to clarify when a court may require a plaintiff to pay cancellation or “no show” fees after failing to attend a medical examination. Recent case law suggests Courts are increasingly willing to award such costs, provided certain conditions are met.

Jerry v. Black, 2023 ONSC 603 (CanLII)

In Jerry, The Divisional Court confirmed that Ontario courts have jurisdiction to order reimbursement of missed examination fees where: 

• the examination was court-ordered under Rule 33 of the Rules of Civil Procedure, or 

• the examination was properly arranged by written consent under Rule 33.08. 

Importantly, Rule 33.08 treats consent-based examinations the same as court-ordered ones unless expressly waived. As a result, a party who fails to attend a consensual medical examination is subject to the same consequences as if the examination had been ordered by the court, including potential cost consequences.

However, the Courts have consistently emphasized that reimbursement of missed appointment fees is not automatic. The assessment must be fair and reasonable in all the circumstances.

The Court laid out that there must be some evidence that the cancellation fee is reasonable having regard to factors such as, but not limited to:

• the type of assessment 
• the length of the assessment; and
• the total amount that would have been charged had the assessment not been cancelled ; 

In Jerry, the court ordered reimbursement of a $1,695 neuropsychological no show fee where: 

• attendance had been agreed to in writing,
• the plaintiff was warned that a cancellation fee would apply, and
• the failure to attend was due to the plaintiff’s forgetfulness. 

The Court held it would have be unfair to require the defence to absorb costs caused by a plaintiff’s non attendance, noting that the no-show fee was reasonable and fair considering the amount.

Following Jerry, two recent Superior Court decisions demonstrate how these principles are applied in practice: 

Yogeswaran v. Ramos, 2024 ONSC 4287 (CanLII) 

In Yogeswarn, plaintiff’s counsel wrote to defence counsel 38 minutes before a half day physiatry examination to cancel the examination, due to illness that they stated had kept the plaintiff off work for the previous week.

The Court rejected the explanation for non attendance due to insufficient supporting evidence (no doctor’s note was provided until 8 months after the cancelled appointment, no additional evidence was tendered to suggest that the plaintiff was unable to work as an affidavit had stated, no explanation was tendered for the fact that the plaintiff had advised the day before the appointment that it needed to be rescheduled and yet the appointment was not cancelled until 38 minutes before).

However, while the Court ordered reimbursement, it reduced the claimed $3,371.92 fee to $1,507.42, finding the original amount excessive. This was mainly due to the plaintiff not being provided with particulars of the amount of the cancellation fee or how many days the appointment needed to be cancelled in advance of the appointment in order not to incur the cancellation fee, as well as the fact that no evidence was provided to outline what percentage of the actual fee charged for the assessment was being sought by way of the cancellation fee. The Court stressed that evidence of reasonableness is required before a full cancellation fee will be awarded.

Kazi v. Gorelle et al., 2025 ONSC 6693 (CanLII)

In Kazi, the plaintiff failed to attend a consensual examination, arguing that transportation had not been arranged and claiming that it was the defendant’s responsibility to inquire into whether the plaintiff needed transportation and to arrange it if so. At no point during the communications between the two law firms did defence counsel offer to arrange or fund transportation. Likewise, plaintiff’s counsel never advised Defence counsel of any expectation regarding transportation.

Plaintiff’s counsel attempted to advance the argument that it is common industry practice for insurers to cover transportation costs for medical examinations; however, the Court stated that this was not a legal obligation, and that in the absence of any communication indicating a need for transportation, it was entirely reasonable for the Defendant to assume that none was required. On the contrary, it would have been incumbent upon the Plaintiff or his counsel to clearly convey such needs.

Ultimately, the Court held there was no legal obligation on the defendant to arrange transportation absent an agreement to do so.

Importantly, although only the existence (not the amount) of the cancellation fee and the fact that the plaintiff would be responsible to cover the fee for a failure to attend was communicated in advance, the court still ordered payment of what it considered a “reasonable fee”, fixing it at $1,200 plus HST, down from $2,800 plus HST that was claimed.

As was the case in Yogeswaran, the failure to communicate a specified amount of the cancellation fee did not preclude an assessment of what would a reasonable fee be in the circumstances, but the amount was lowered based on the factors laid out in Jerry.

Summary 

When determining whether a cancellation fee is payable — and in what amount —Courts look at factors including: 

• whether the medical was properly constituted under Rule 33;
• whether the party was advised that a cancellation fee would apply and what the cancellation fee would be;
• the communications regarding the needs of the plaintiff(s); 
• the reason for non attendance and the quality of supporting evidence;
•  the timing of the cancellation;
• the type and length of the assessment;
• the fee that would have been charged had the assessment proceeded; and 

• whether the claimed cancellation fee falls within a reasonable range in light of comparable cases.

  A key development of the above-noted cases is that Courts will not enforce excessive or unsupported cancellation fees. Parties and counsel are therefore well advised to communicate the terms, timing requirements, and amounts of cancellation fees in advance whenever possible.