Carfra Lawton LLP | Victoria BC

A Plaintiff is Required to Sign Any Reasonable Form of Consent for an IME

The recent decision of Madam Justice Harris in Wee v Fowler 2017 BCSC 545 contains a succinct analysis of the law that plaintiffs can be required to sign any reasonable form of consent for an IME.

While the earlier decisions of Master Harper in Gill v Wal-Mart 2016 BCSC 1176 and Madam Justice Hyslop in Kalaora v Gordon 2011 BCSC 1360 appeared to settle the issue, plaintiff’s counsel in Wee maintained an argument the plaintiff could not or should not be ordered to sign the consent form in question.

The Wee decision contains a copy of the fairly long consent form at paragraph 39, which was found to be reasonable. The plaintiff objected to signing the form for four reasons: it stated the doctor was independent; it stated she was not in a doctor/patient relationship with the doctor; it stated she received an explanation of the nature of the assessment; and it stated that she was there voluntarily or pursuant to a court order. The reference to independent was found reasonable in light of the court rule requiring such experts to comply with their duty to assist the court. A doctor/patient relationship did not exist in the context that the doctor was not a treating doctor and the consent stated this. There was no evidence suggesting the doctor would not explain the nature of the assessment. The plaintiff was attending either voluntarily or pursuant to a court order and this was merely descriptive of the plaintiff’s participation.

In Wee, a prior consent order was made in court for attendance at the relevant IME, with no submissions or order in relation to signing a consent. The Judge found that signing forms necessary for the examination was a thing reasonably necessary to do to comply with the order.

While plaintiffs’ counsel maintain various positions in relation to signing such consents, the law now appears settled on the issue. In the absence of a prior agreement about a consent form, if a doctor presents a reasonable consent form and will not perform an IME without it being signed, a plaintiff is required to sign it as a thing necessary to do to comply with an agreement or order to attend.

Case law summary by Giles Deshon