Walsh v. Newland, 2012 ONSC 2123 (S.C.J.)
Motions to compel a plaintiff to attend at an independent medical examination are often dependent on their facts, as can be seen in Justice Eberhard's decision in Walsh v. Newland.
In this case the plaintiff had previously been assessed by the defendant's neurologist. The defendant sought to have a second neurologist assess the plaintiff. Trial was scheduled for April 2012. In February 2012, the plaintiff served a report which linked the plaintiff's Bell's Palsy to the motor vehicle accident. At the time of the first IME, no link had been made so the first neurologist did not comment on it.
At paragraph 4, Justice Eberhard stated the basic test for compelling additional IMEs:
a) Whether the moving party established a need for the further examination;
b) Any new symptoms or complaints or a change in the landscape of the case as a result of a new medical report from the plaintiff. This is often used as a basis to justify a further defence medical examination; and
c) The overriding test of fairness and both sides having the ability to put the best evidence before the court at trial.
Justice Eberhard concluded that although the trial would be adjourned in order to allow for the examination to take place, the defendant was entitled to the IME. There was no real prejudice and it was important the defence be permitted to assess the new allegation.
- Tara Pollitt