In Hein v. Linge, 2018 BCSC 1203 the law is outlined as it pertains to subsequent Independent Medical Examinations. The defence in this case was the applicant seeking a subsequent IME, which was dismissed with costs in the cause.
It is noted that the Judge has discretionary authority to determine whether a subsequent Independent Medical Examination is appropriate. A further consideration is “a just determination of every proceeding on the merits and to ensure full disclosure. The Rules are given a fair and liberal interpretation to meet those objectives.”
One key consideration is whether there is a question or matter that could not have been dealt with at the earlier examination.
Here is a summary of some points to be aware of:
- there should be reasonable equality between the parties in preparation for a case for trial;
- this does does not mean “tit-for-tat” expert reports;
- there is a higher standard and the onus is on the party seeking the subsequent IME;
- the application must be timely;
- the report should be available in sufficient time to comply with the rules of admissibility;
- there should be adequate time for the plaintiff to assess and respond if necessary;
- was the applicant for the subsequent IME aware of the Plaintiff’s injuries;
- when is the impeding trial and when is the request for the subsequent IME being sought;
- was there any attempt by the applicant to seek such an opinion at an earlier date?
- Was the initial IME scheduled in a timely manner – look at the history of the scheduling of the first IME. These details may be relevant;
- Seeking a subsequent IME at the 84 day expert evidence deadline may jeopardize an upcoming trial date – this may weight against an Order for a subsequent IME request;
- Ask – will a fair trial on the merits be impacted ? If so, an Order for a subsequent IME may be dismissed;
The Rules to be familiar with are Rule 7-6(1) and (2):
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.
(2) The court may order a further examination under this rule.
Also be familiar with the decision of Mr. Justice Bracken in Hamilton v. Pavlova, 2010 BCSC 493:
 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,  B.C.J. No. 2304 (B.C.C.A.) at pp. 2-3.
 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.
 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 (CanLII) at para. 17, and Christopherson v. Krahn, 2002 BCSC 1356 (CanLII) at para. 9.
 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 (CanLII) at para. 48, and Norsworthy v. Greene, 2009 BCSC 173 (CanLII) at para. 18.
 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.
 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 (CanLII) at paras. 47-48, relying in part on Goss v. Harder, 2001 BCSC 1823 (CanLII).
 Finally, subsequent independent medical examinations should be reserved for cases where there are some exceptional circumstances: Wildemann v. Webster, supra, at p. 3.
In conclusion, the Court in the subject case stated the following:
It is not a question here of there being no ability to have a fair trial on the merits.
I will repeat what I had said in submissions, which is that too often we are seeing late applications for independent medical examinations which, if granted, would jeopardize trial dates and would jeopardize the just, speedy and inexpensive determination of matters on their merits.
For all of those reasons, the application of the defendants is dismissed.
Costs to the plaintiff in the cause.
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