Carfra Lawton LLP | Victoria BC

Trio of IME Cases: New Test Applied to get Plaintiffs to Attend Medical Examinations

A trio of recent decisions by Judges of the Supreme Court of British Columbia have emphasized the new test for getting opposing parties to attend medical examinations. These are known in different provinces as IMEs (independent medical examinations) or DMEs (defence medical examinations).

The new test was decided by the Court of Appeal in Tran v Abbott 2018 BCCA 365:

  1. The primary purpose of an IME is to put the parties on an equal footing with respect to the medical evidence; and
  2. In exercising its discretion, the court must consider the effect of refusing the order sought on the conduct of the trial.

The Court in Tran specifically rejected the notion that a higher standard is required to be met by a party seeking a second or subsequent IME. Multiple examinations may be appropriate where a variety of injuries are alleged or the cause of the injury is not straightforward. The three cases from 2020 which apply the decision of Tran are:

  • Broumand v McEdwards 2020 BCSC 803 where Mr. Justice Nathan Smith allowed an IME by a neurologist after an earlier orthopedic IME where concussion was pleaded and the plaintiff had an earlier relevant pain complaint. The orthopedic report was not available to the Court on this application.
  • Chahal v Sandhu 2020 BCSC 879 where Mr. Justice Jenkins allowed an IME by a physiatrist when an appointment with a neurologist for an IME had already been arranged but had not yet occurred. The pleaded injuries included concussion and injuries to shoulder, leg and foot and the variety of injuries alleged founded the decision to allow the second IME.
  • Usmon v Masi 2020 BCSC 958 where Mr. Justice Riley allowed an IME with a physiatrist within 84 days of trial due to COVID-19 where the plaintiff had previously agreed to attend two prior IMEs (which were only cancelled due to COVID-19). The Court allowed the service of the report inside the 84 days and changed the 42 day deadline for responding reports to five weeks after the service deadline for the initial report.

In all three of these cases the test in Tran was used, without much reference to earlier lower court decisions which appeared to set other restrictions on getting IMEs.

The take away for insurers is that it appears courts are now more willing to order IMEs to ensure necessary and appropriate evidence is available to the Court at a trial, while leaving issues of overlap or admissibility to the trial Judge.

Case law summary by Giles Deshon