Analysis of BCSC Rule 7-6 Order For Medical Evidence

In Kenny v. Bateman 2017 BCSC 900, a Master’s decision to Order that the Plaintiff attend a neuro-psychological assessment is appealed on the basis that this is a second IME.

The plaintiff’ position is that the master erred:

“(1) in finding that the medical examination was a first examination and not a further or subsequent examination; and

(2) in finding that, even if the examination was a further examination, the threshold for further examination was still met.”

“The defendant submits that the IME by Dr. Lysak was a first IME under the Rule because the earlier IME was expressly stated to be “voluntary”.

The opinion that was sought here was not redundant, a duplication of an existing opinion or an attempt to improve upon an existing opinion.  Given the complexities of this case, the need to establish the cause of the plaintiff’s psychological condition, and the need to provide the Court with objective information relating to that condition, it was appropriate for the master to order the IME by Dr. Lysak.”


Rule 7-6

[35]         This appeal concerns Rule 7-6 and so it is useful to set it out:

Order for medical examination

(1) If the physical or mental condition of a person is in issue in an action, the court may order that the person submit to examination by a medical practitioner or other qualified person, and if the court makes an order under this subrule, the court may also make

(a) an order respecting any expenses connected with the examination, and

(b) an order that the result of the examination be put in writing and that copies be made available to interested parties of record.

Subsequent examinations

(2) The court may order a further examination under this rule.

Principles for the Exercise of Discretion

[46]         The most commonly-cited starting point for a Rule 7-6(2) analysis is Hamilton v. Pavlova, 2010 BCSC 493 [Hamilton], a case that interpreted the former rule, Rule 30.  In Hamilton, Bracken J., in an oral judgement, said the following:

[10] Rule 30(1) provides discretion to the court to order an independent medical examination, and under Rule 30(2), more than one examination may be ordered.  Counsel, in their helpful submissions, have thoroughly canvassed the relative authorities on this point.  From those authorities, certain principles emerge.  The case law is against a background of the rules of court, and in particular, the principle that the rules are designed to secure a just determination of every proceeding on the merits and to ensure full disclosure, so the rules should be given a fair and liberal interpretation to meet those objectives:  Wildemann v. Webster, [1990] B.C.J. No. 2304 (B.C.C.A.) at pp. 2-3.

[11] Rule 30(2) is a discretionary rule, and the discretion must be exercised judicially.  An independent examination is granted to ensure a “reasonable equality between the parties in the preparation of a case for trial”:  Wildemann v. Webster at p. 11 from the separate concurring reasons of Chief Justice McEachern.

[12] Reasonable equality does not mean that the defendant should be able to match expert for expert or report for report:  McKay v. Passmore, 2005 BCSC 570 at para. 17, and Christopherson v. Krahn, 2002 BCSC 1356 at para. 9.

[13] A second exam will not be allowed for the purpose of attempting to bolster an earlier opinion of another expert.  That is, there must be some question or matter that could not have been dealt with at the earlier examination:  Trahan v. West Coast Amusements Ltd., 2000 BCSC 691 at para. 48, and Norsworthy v. Greene, 2009 BCSC 173 at para. 18.

[14] There is a higher standard required where the defendant seeks a second or subsequent medical exam of the plaintiff:  McKay v. Passmore, supra, at para. 17 and para. 29.

[15] The application must be timely.  That is, the proposed examination should be complete and a report available in sufficient time to comply with the rules of admissibility and to allow enough time for the plaintiff to assess and respond if necessary:  Vermeulen-Miller v. Sanders, 2007 BCSC 1258 at paras. 47-48, relying in part on Goss v. Harder, 2001 BCSC 1823.

[16] Finally, subsequent independent medical examinations should be reserved for cases where there are some exceptional circumstances: Wildemann v. Webster, supra, at p. 3.

[47]         I have reviewed some of the authorities referred to in the passage above, and have the following comments:

  1.  Wildemann v. Webster [Wildemann] concerned a defence application for an examination of the plaintiff by an inter-disciplinary team comprised of three specialists and a family doctor, who were to examine the plaintiff over a two-day period.  It was in this specific context that the Court of Appeal said such an examination should be reserved for those cases having “exceptional circumstances” or “where it is necessary to ensure reasonable equality between the parties in the preparation of a case for trial”;
  2. referring to paragraph 11 from Hamilton, in Wildemann all three judges agreed with the additional comments of McEachern C.J.B.C. in which he added the phrase “or where it is necessary to ensure reasonable equality between the parties in the preparation of a case for trial”;
  3. the case cited for the proposition that a higher standard applies where a defendant seeks a second or subsequent examination (McKay v. Passmore) involved an application for the plaintiff to be examined by the same orthopedic surgeon who had examined her previously.

[48]         Another example of the latter point is Roberge v. Canada Life, 2002 BCSC 1500, where the court spoke of a “much higher standard” imposed for subsequent IMEs.  In that case the specialty was the same (psychiatry).

[49]         Accordingly, in considering these cases it is very important to note whether the case involves an application to examine a plaintiff by a specialist in the same field as had examined him or her before.  It is obvious that there must be a higher threshold in those cases.

[50]         For these reasons, I conclude that it is too simplistic to say that there is a much higher standard for a second examination, without more, because the question turns in large part on whether the subsequent examination is in the same field.

[51]         To hold otherwise would mean that, in a case involving both an eye injury and a broken foot, in the absence of proof on a higher standard (or, as some cases erroneously suggest, “exceptional circumstances”), a defendant would be limited to one expert and would have to choose between engaging either an ophthalmologist or an orthopedic surgeon.  This is most unrealistic and would likely not meet the overall goal of ensuring “reasonable equality between the parties”.  Such a “one-shot” approach is not supported by the authorities and was specifically rejected by Schultes J. in Barbosa v. Castillo, 2010 BCSC 212, at para. 23 [Barbosa].

[52]         Case authorities considering Rule 7-6 and its predecessor have identified several factors to be taken into account when considering an application under that Rule.  I discuss these under the sub-headings that follow.

Fairness and Equality

[53]         The courts have expressed this objective on numerous occasions.  This was affirmed by the Court of Appeal in Stainer v. ICBC, 2001 BCCA 133:

[8] This Court has repeatedly said that the purpose of Rule 30 is to put the parties on an equal footing with respect to medical evidence. What steps are necessary to achieve that end is a matter of discretion for the chambers judge to assess in the circumstances of each case. …

[54]         This passage was reiterated by the Court of Appeal in Wright (at para. 31), where the court added that Rule 7-6 specifically contemplates more than one IME.

[55]         To similar effect, in Desjardins v. Huser, 2010 BCSC 977 [Desjardins], Joyce J. described the purpose of the former rule as follows:

[10] The essential purpose behind Rule 30 is to put the parties on a basis of equality. The plaintiff is not limited in the number of areas of expertise in which it may present expert evidence. The defendant should not necessarily be denied an examination within a particular area of expertise, even if the plaintiff has not chosen to obtain an opinion within that field (Guglielmucci v. Makowichuk, [1996] 6 W.W.R. 357).

[56]         “Equality” and “equal footing” have been interpreted to mean “reasonable equality”.  It does not mean that a defendant should be able to match expert for expert or report for report: McKay v. Passmore at para. 17; Christopherson v. Krahn, 2002 BCSC 1356 at para. 9; Gawlick v. Lim, 2016 BCSC 526 at para. 22 [Gawlick]; Hamilton, at para. 12.

New, Unforeseen or Different Matter or Issue

[57]         The Court will not exercise its discretion to order subsequent IMEs to simply give the same expert or experts an opportunity to bolster their earlier opinions or to re-explain themselves.  There must be something that was not covered previously.  There are numerous authorities to that effect.

[58]         Barbosa illustrates this point.  There, the plaintiff had suffered shoulder and back injuries in a motorcycle accident.  The plaintiff saw Dr. Loomer, an orthopedic surgeon, for an independent medical examination.  Dr. Loomer was aware from available medical records that the plaintiff had been seen by a neurosurgeon whose nerve conduction studies indicated nerve damage in the plaintiff’s elbow.  At the time of the examination by Dr. Loomer the plaintiff reported that problems with numbness and paresthesia in his left hand had improved considerably since the accident and were not a functional problem for him” any longer. However, Dr. Loomer’s examination took place prior to the delivery of any experts’ reports from the plaintiff, and subsequently the plaintiff delivered a report from a neurologist.

[59]         Mr. Justice Schultes said:

[20] In this case, I think that the report of Dr. Hashimoto is necessary in order to ensure reasonable equality between the parties in their preparation for trial.  In this regard, I draw a distinction between situations in which the defendant seeks to have a further examination performed by a particular kind of specialist for no other apparent reason than that the plaintiff has had himself examined by one, and cases in which a report by a medical expert for a plaintiff provides critical evidence that was not within the expertise of the first defence expert to provide and that was unknown to the defendant at the time of that first examination.

[21] I am mindful of the fact that the plaintiff raised concerns with respect to his left arm and hand, which have a neurological component, in his examination for discovery prior to being examined by Dr. Loomer, and that Dr. Loomer himself considered and gave an opinion with respect to those symptoms and the plaintiff’s back symptoms in his report.

[22] No doubt orthopedic surgeons are required to have an excellent understanding of the nervous system as it impacts upon the practice of their specialty, but at the end of the day, an orthopedic surgeon is not a neurosurgeon or a neurologist and it is not correct to say that Dr. Loomer had or would have at trial the knowledge base to respond to Dr. Hunt’s detailed findings with respect to the injuries to the fibres and nerves of the plaintiff’s spine.

[60]         Again, however, the burden on an applicant may be lighter if the second IME involves a different specialty or subject-matter.  For example, in Garford v. Findlow, 2014 BCSC 2404, Master Bouck found that a further IME was appropriate, since it would explore an area in need of comment rather than impermissibly bolster an earlier opinion of another expert.  While the plaintiff doctors had commented on the plaintiff’s mental health condition, they had made no diagnoses and their assessments focused on the plaintiff’s physical condition.  Master Bouck concluded that a psychiatrist would be in a better position to opine on the plaintiff’s mental health than the other doctors.

[61]         Similarly, in Gawlick Master Muir found that, because the plaintiff had been newly diagnosed with thoracic outlet syndrome (TOS), a neurological condition, after the defendant’s orthopedic surgeon had assessed her (and where evidence suggested that TOS was not within the expertise of an orthopedic surgeon), the defendants were entitled to a subsequent IME.

[62]         Where experts have overlapping expertise the situation is more difficult and nuanced.  In Samad v. Schisler, 2007 BCSC 1670, Slade J. found the disciplines of physiatry and neurosurgery to overlap to such a degree that, given the particular circumstances of that case, a further IME was not warranted.  That is not to say that a single IME can always respond to a plaintiff’s multi-faceted claim based on a “mixed picture” injury, even if the expert who conducted the first IME has a specialty related to that of the proposed expert for a second IME.  In Stene, Holmes J. found that while the plaintiff had already attended an IME with Dr. Dost, a neurologist, the plaintiff had since served eight reports, all but one of them medical, some of which described injuries in a manner manifestly outside the scope of Dr. Dost’s expertise. She found that where:

[17] … the injuries in question are multi-faceted, creating a “mixed picture”, the “matter” in issue is more nuanced than this submission assumes. The matter is not simply the fact of the injuries. It also encompasses their medical characterization. This is particularly so in circumstances where, as here, causation is an issue, and where Ms. Stene claims in respect of two separate accidents. …

[63]         Similarly, in Desjardins, Joyce J. found that while there was some overlap between three defendant IMEs carried out by different professionals, each was necessary since each approached the plaintiff, who had sustained a brain injury resulting in permanent cognitive deficits as well as multiple permanent orthopedic and soft tissue injuries that have resulted in emotional and psychological problems, from different angles.


[64]         In Stocker v. Osei-Appiah, 2015 BCSC 2312, Pearlman J. discussed the principle of proportionality:

[25] … Further, proportionality was a relevant consideration under Rule 1-3(2)(a). The court held that where the amount involved was likely to be significant and the issues in dispute were important to both parties, proportionality supported the defence orthopedic examination.

[65]         In that case the plaintiff had a potential claim for four years’ past wage loss in the amount of $200,000 and a claim for loss of future earning capacity for eight years from the trial date to retirement at age 65.  Pearlman J. found that, given the significant amounts claimed, proportionality weighed in favour of granting the defendant a further examination (at para. 31).

[66]         Accordingly, if the claimed damages are significant, courts will be more likely to exercise their discretion to order further IMEs: see also Gawlick at para. 25; Wright at para. 10.

Timeliness of the Application

[67]         Although this is not an issue in this case, for completeness I include timeliness of the application as a factor to be considered in the exercise of the Court’s discretion.  The ability to respond to any new report and the effect that a new report may have on trial preparation or on the trial itself, are factors properly taken into account on applications of this sort.


Application of Principles

[68]         The focus of the master’s reasons was on whether the then-proposed examination by a neuropsychologist was a first examination in a particular field.  This approach was consistent with the authorities I have reviewed earlier in these reasons: see, e.g. Teichroab and Barbosa.

[69]         The master noted that psychiatrists and neuropsychiatrists have different approaches, with the latter performing objective testing as part of their examinations.  He noted that all of the psychiatrists who had examined the plaintiff considered that a neuropsychological examination would be helpful.  He concluded that the approaches used by the two disciplines were sufficiently different that the examination by a neurologist would be a first examination in a field and not a second examination in the same field.  This analysis was a necessary step in assessing whether the proposed IME would amount to a mere bolstering of an existing report and, as such, is consistent with the authorities: see, e.g. Stene and Desjardins.  I conclude that there was a sound basis in the evidence on which the master could conclude the two disciplines were sufficiently different.

[70]         The master also concluded that in the event he was incorrect and that there is greater overlap between psychiatric and neuropsychological examinations and opinions, he was satisfied that a neuropsychological examination would be helpful to the psychiatrists involved, as well as to the Court and to both parties in cross-examining the other’s experts because it would provide further, objective information.  The taking into account of these matters is consistent with such authorities as Garford, Stene, Barbosa and Desjardins.

[71]         To be more specific, the master had, in the evidence before him, the report of Dr. Russell, who noted concerns about the validity of the history provided by the plaintiff and the consequent difficulty he had in providing an accurate opinion concerning her current psychiatric diagnosis without a neuropsychological assessment.  In fact, all four psychiatrists who have seen the plaintiff recommended, in some fashion, that neuropsychological testing be done.  Dr. Ghandi, who saw the plaintiff in 2010, reportedly expressed concerns about the plaintiff’s self-report of cognitive impairment and recommended that she undergo a neuropsychological assessment to assess her cognitive functioning.  The plaintiff’s psychiatrist, Dr. Anderson, said in 2010 that neuropsychological testing should be done “if cognitive difficulties continue in future” to document the plaintiff’s cognitive strengths and weaknesses.  Obviously, the plaintiff’s reports of cognitive difficulties have in fact continued.  In 2012 Dr. Anderson said neuropsychological testing would be needed “to better understand her cognitive strengths and weaknesses”.  The plaintiff’s treating psychiatrist, Dr. Mistry, said in 2014 that it “would be best” for the plaintiff to undergo a neuropsychological assessment before he considered changing her medication.

[72]         Although he did not mention this in his reasons, it is relevant to note that the plaintiff herself has delivered an expert’s report from a psychologist (Dr. Jung) though I would hasten to add that this was not a neuropsychological assessment.

[73]         I am satisfied that there was a proper basis in the evidence on which the master could conclude that a neuropsychological assessment would provide additional and useful information relevant to the issues in the case, and that this was a proper basis on which he could exercise his discretion in favour of ordering that assessment.

[74]         It must be remembered that the master’s decision involved an exercise of discretion that ought not to be overturned unless shown to be clearly wrong.  In my view, all of the matters considered by the master in his reasons were properly considered.  I can discern no error of principle.  The plaintiff has therefore failed to demonstrate that the master was clearly wrong.


[75]         The appeal is dismissed with costs.

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