Can a plaintiff avoid attending discovery or an independent medical examination due to anxiety or an inability to respond to questions appropriately?
In Lalousis v. Roberts, 2013 ONSC 5897 (S.C.J), the plaintiff sought $4 million in two actions relating to two motor vehicle accidents. She alleged that she could not participate in oral discovery or an IME due to medical reasons, including that she was not able to respond to questions, had poor communication and attention, and discovery would increase her anxiety and depression. She sought to avoid the discovery process or have her husband act as a substitute.
Master Muir dismissed the motion. A party has a prima facie right to a full and complete discovery of an adverse party, which includes oral examination and may include a medical examination. The threshold to limit a party's right to discovery is a high one and should be ordered only in the rarest of cases. In the circumstances, an examination for discovery might be unproductive as she may not provide responsive answer, and it could cause anxiety for the plaintiff; however, there was no evidence that it would cause her permanent damage.
In order to permit the defence to fully respond to the claim against it, it makes sense that the threshold for taking away those rights is very high.