In the recently reported case of Daggitt v. Campbell[i], the Court reviews the requirements for a Court ordered defence medical pursuant to Section 105 of the Courts of Justice Act and Rule 33 of the Rules of Civil Procedure. In this motion, heard in April of 2016, with the case scheduled for Trial in September, defence counsel sought to have a third defence medical conducted by a psychiatrist. The Plaintiff had already undergone defence medicals by a physiatrist and an orthopedic surgeon. The Plaintiff did not have a psychiatric expert report, but Plaintiff counsel did intend to rely, at Trial, upon the evidence of a psychologist who prepared a report for the accident benefit insurer and a neuropsychologist who treated the Plaintiff flowing from the accident benefits assessment.
The motion was dismissed on the basis that since the Plaintiff did not have a psychiatric expert, the defence was not entitled to a psychiatric examination. The Court clearly indicates that if the Defendant had asked for a psychological or neuropsychological assessment, such would have been ordered, but such assessments were, for some unstated reason, “purposefully not sought” by defence counsel.
In order to obtain a second or subsequent defence medical, the request must be warranted and legitimate and not cause prejudice to the other party. Trial fairness should be the guiding principal, and, generally speaking, “matching reports” will be allowed. Persuasive evidence must be put forward in support of the request, so as to show unfairness to the Defendant if the request is not granted and no undue burden on the Plaintiff in granting same. Prejudice to the Plaintiff is a significant consideration such as, in this case, a possible two year delay in the jurisdiction in question, in getting the case back on for Trial if it did not proceed as scheduled.
Another interesting feature of this case, dealt with by the Court by way of obiter dicta, related to the particular doctor being proposed by defence counsel to undertake the psychiatric examination. The Court reviewed what appeared to be a growing track record on the part of that doctor of failing to live up to the obligation pursuant to Rule 4.1.01 of being fair, objective and nonpartisan. While there is nothing to preclude the use of such doctors when it occurs on consent, the Court indicated in this case that, in a Court ordered defence medical, the name of the health practitioner to conduct the Examination is to be disclosed in the motion material. The Court, in the exercise of its discretion and if convinced by the argument of opposing counsel, could refuse an Order naming a particular health practitioner if that health practitioner has the track record as indicated. The Court indicated that this would be uncommon but worthy of consideration in appropriate circumstances.
[i] 2016 ONSC 2742