Test for Ordering Plaintiffs to Attend Defence Medical Examinations

In Chandrababu v. Tharmalingham, 2021 ONSC 4885, the court ordered the plaintiffs the attend defence medical examinations even though the trial was less than three months away. The reason was that the plaintiffs had recently served several expert reports and had recently provided the records of a treating psychiatrist.

One plaintiff had already attended a defence physiatry examination, while the other plaintiff had not attended a defence medical examination.

A defendant is entitled to one defence medical examination of a plaintiff as of right. Additional examinations can be arranged on consent. If consent is not provided, the defendant can bring a motion.

Further, disputes may arise if the examination is sought outside of the timelines in the Rules of Civil Procedure (90 days prior to the pre-trial conference for an originating expert report and 60 days prior to the pre-trial conference for a responding expert report). The court has discretion to extend or abridge the time for serving an expert report.

Master McGraw outlined the applicable principles in determining whether a plaintiff should be ordered to attend a defence medical examination:

• A defendant’s right to respond to a plaintiff’s expert report is a substantive right.
• Defence medical assessments are an integral part of the discovery process.
• The purpose of a defence medical examination is to achieve trial fairness and a level playing field by putting the parties on a basis of equality as near as it is possible.
• Allowing a plaintiff to adduce expert evidence of damages while denying the defendant the ability to test and challenge that evidence through its own expert is inconsistent with trial fairness, unduly restricts the defendant’s pre-trial preparation, and risks creating a perceived imbalance.
• A defendant seeking an order for a plaintiff to attend a further medical assessment must demonstrate that the assessment is warranted and legitimate and not made with a view to delaying the trial or causing prejudice to the other party.
• A request may be legitimate where there is evidence that: (1) the party’s condition has changed since the date of a previous examination; (2) a more current assessment of the plaintiff’s condition is required for trial; (3) the plaintiff served specialist reports after the defendant conducted its assessment; or (4) some of the party’s injuries fall outside of the expertise of the first examining doctor.
• The court may also 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.

Master McGraw concluded “that the recent reports and documentation delivered by the Plaintiffs demonstrate, in timing, volume and substance, that there have been material, unexpected changes in the Plaintiffs’ conditions and that trial fairness requires that the Plaintiffs attend the medical assessments so that the Defendant can properly respond”. Master McGraw was satisfied that the trial date would not be jeopardized.