Dispute Over Defence Medical Exam in LTD Claim

The case of Terra v. Desjardins Financial Security Life Assurance Company, 2022 ONSC 4673, involves a dispute over a defence medical examination in a long-term disability benefits claim.

Prior to the commencement of the action, the plaintiff attended a psychiatric assessment with Dr. Chad at the request of the defendant insurer.  After the litigation was commenced, the plaintiff served an expert report of a psychiatrist. 

After receiving this report, the insurer intended to have the plaintiff again assessed by Dr. Chad.  However, Dr. Chad is not available to conduct independent medical examinations.  The insurer then sought to have the plaintiff assessed by another psychiatrist, Dr. Bloom.  The plaintiff refused.

Under section 105 of the Courts of Justice Act, the court may order a party to undergo a physical or mental examination by one or more health practitioners.  A first medical examination under section 105 is generally granted almost as a matter of right.

Associate Justice Frank referred to a previous decision which indicated that, if a person enters into an insurance contract which provides the insurer with the right to an examination, that right exists separate and apart from the right which the insurer has to a medical examination under section 105 once it becomes a party to litigation.

Therefore, Associate Justice Frank held that the psychiatry assessment with Dr. Bloom would be a first examination under section 105 and that the plaintiff is required to attend it.

Even if it was not a first examination under section 105, Associate Justice Frank would have ordered the plaintiff to attend an examination with Dr. Bloom or another qualified psychiatrist in any event.  There was evidence that the plaintiff had a change in condition.  Moreover, it would be unfair to prevent the insurer from responding to the plaintiff’s expert report.  Lastly, Dr. Chad is not available to conduct an examination.

In conclusion, even though the plaintiff attended a psychiatric examination prior to the litigation at the insurer’s request, she was ordered to attend another psychiatric examination for the purpose of the litigation.