Timing Matters – Independent Medical Examinations

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Timing Matters – Independent Medical Examinations

Scheduling IMEs late during the process of litigation is never a good idea.  Timing matters.  The most important date to be aware of is the expert evidence deadline outlined in Rule 11-6 (3) which directs that an expert’s report must be served on every party of record 84 days before the scheduled trial date (“84-day deadline”).

Scheduling Independent Medical Examinations well prior to the 84-day deadline is imperative, otherwise the request may be declined.  More problematic are requests for IMEs after the 84-day deadline has passed.  These late requests for IMEs will most definitely be disputed and a chambers application to compel attendance will likely fail.  In this recent decision, a defence application to Court for a late IME request was dismissed with special costs awarded to the Plaintiff. 

The delay in this case was attributed to a “wait and see approach” which is not looked at kindly by the Court.  For example, the defence allegedly “waits” for the expiry of the 84-day deadline for the purpose of receiving the expert reports of the Plaintiff and “sees” whether there are matters of concern that would thereafter require the scheduling of late defence IMEs on the basis that the Defendant(s) are entitled to be placed on an equal footing at trial by seeking opinion evidence.

In this decision, the Court states the following:

One of the concerns that I have on this application, among several, is that the court should not sanction a two‑tier approach where the plaintiff serves their initiating reports and the defence then waits and sees whether there is something of great enough concern to seek an IME. That is not how the rules operate.

The defendant could have set up the two IMEs it now seeks well before the 84‑day service deadline and then used the waiting period to determine whether or not to cancel those IMEs. That never happened.

I will outline a few facts from the BC Supreme Court chambers application seeking an Order to compel attendance at 2 IMEs:

  • Trial date:  Nov 29, 2021;
  • 84-day deadline Sept 6, 2021;
  • 42-day responsive report deadline is extended to Oct 27, 2021 by consent;
  • 2 initiating IMEs were requested by the Defendant after the 84-day deadline had passed;
  • Timeline:
    • 2018 Examination for Discovery
    • Previously scheduled trial date of Sept 2019 was adjourned so that Plaintiff could attend with orthopedic surgeon
    • March 2020 reduced work hours
    • Dec 2020 initial surgery date was cancelled
    • Back surgery was performed on March 1, 2021
    • Surgery resulted in poor outcome
    • Prognosis is uncertain
    • Plaintiff’s counsel informed defence of poor outcome of the surgery in June 2021
    • July 2021 surgery records had been provided to the defence
  • The Plaintirff’s neuro-surgeon opines that the prognosis be postponed until 6 to 12 months following the surgery.
  • The plaintiff wishes to proceed with the trial regardless.
  • The defendant also wishes to proceed with the trial.

Defendant Arguments

The Defendant’s arguments are based on the principles outlined in Hoang v. Dean, 2021 BCSC 537 wherein a request by defence in this application sought to have the 84-day deadline extended for purposes of having the Plaintiff attend IMEs so that the Defendant may be on an equal footing at the upcoming trial.  Although a request to adjourn the trial was made in this application, the Court did not agree to immediately adjourn the trial but did agree to make an Order to compel attendance by the Plaintiff at an IME.  A distinguished fact in this case, however, was that the Plaintiff had previously failed to attend at a scheduled defence IME.

The Court has the discretionary authority under Rule 7-6 (1) to Order that a Plaintiff attend an IME.  Following are important principles the Court will consider, as noted in the Hoang decision:

  • A Rule 7-6(1) order is discretionary. It is designed to balance the plaintiff’s advantage in obtaining expert opinions, by providing the defendant with access to the plaintiff for such prior to trial: Tran v. Abbott, 2018 BCCA 365 at para. 17. The court’s discretion is to be exercised in light of the purpose of an IME: to put the parties on an equal footing with respect to medical evidence so as to ensure a reasonable equality between the parties in the preparation for trial: Kenny v. Bateman, 2017 BCSC 900 at paras. 53-56.
  • Rule 7-6(1) is aimed at securing a just determination of each proceeding on the merits and to encourage full disclosure, and should be given a fair and liberal interpretation to meet those objectives: Tran at paras. 19 and 30.
  • The timeliness of an application is 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: Kenny at para. 67.
  • Where the application is made after the expiry of the 84-day deadline, the court should also consider whether the examination sought will advance the litigation, in the sense of potentially yielding relevant evidence touching on a material issue: Timar v. Barson, 2015 BCSC 340 at para. 18.

Plaintiff Arguments

In the current decision, the Plaintiff put forth the following arguments:

  • that the defence has not shown by way of evidence that a physical examination is necessary;
  • there is prejudice to the plaintiff by a late IME because the defendant would have the benefit of the plaintiff’s expert reports;
  • the defendant cannot say that it is genuinely surprised by the plaintiff’s expert evidence, and
  • if the defendant does have any prejudice by denial of the application, it is minor because the defendant can obtain responsive reports.

Conclusion

The defence knew exactly when the 84‑day deadline was and took no steps whatsoever to even provisionally book IMEs that could later be cancelled. That kind of strategy is incomprehensible. The plaintiff has been put to a great deal of inconvenience on this application close to trial. If special costs are needed to change the practice that Master Muir and others, including myself, deplore, then that is what is required.

The defendant will pay the plaintiff her special costs of this application in any event of the cause but not payable forthwith.

Referenced decision:  Economou v Zoppa, 2021 BCSC 2182 (CanLII)

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