A recent decision highlights the importance of wording correspondence when disputes arise over IMEs.
In Caesar v. Griaznov, 2014 ONSC 4329 (S.C.J.), the plaintiff alleged both physical and psychological injuries. Defence counsel arranged IMEs with a psychiatrist and a physiatrist. Plaintiff's counsel advised the plaintiff would attend only one IME of the defendant's choosing. A clerk in defence counsel's office sent a letter stating the defendant "chose" the psychiatrist. She later followed up in an email that read as though the clerk assumed the physiatry IME would proceed as well.
Master Muir ordered the plaintiff to attend the second examination. Since the plaintiff was claiming two distinct types of injury (physical and psychological), fairness dictated the plaintiff be compelled to attend. There would be no overlap between the two examinations. There was little unfairness to the plaintiff since there was no trial date pending and a mediation date was several months away. In contrast, there was the risk of significant unfairness to the defendant who would be required to defend a central element of the plaintiff's claim without the benefit of a current expert assessment.
Master Muir denied the successful defendant costs given the clerk's letter which suggested the defendant had "chosen" only one examination. The decision on costs seems odd given that Master Muir was satisfied the defendant always intended to preserve her right to a second examination. Counsel should be alert to the wording used in correspondence relating to disputed IMEs.