Written By: Salvatore Shaw, Partner, and Emily Roti, Summer Student
In personal injury lawsuits, the lawyers for the defendant will often ask the injured person (the plaintiff) to attend a medical examination with a doctor the defence lawyer chooses. This is called a defence medical examination. In Ontario, the defence lawyer will pick the doctor and where the examination will happen, but this isn’t always fair or practical. If the injured person has mental health struggles, physical limitations, or trouble traveling, the court can step in. If the location is too far, hard to get to, or could harm the person’s health, the court might order the examination to happen somewhere else or with a different doctor. The goal is to make sure the defence medical assessment is fair and doesn’t cause more harm to the injured person.
What is a Defence Medical Examination?
A defence medical examination is a medical examination that is conducted by a doctor chosen by the lawyer representing the defendant. The purpose of a defence medical examination is to determine the plaintiff’s injuries and medical condition and providing an unbiased perspective on the extent and nature of the injuries.
Legal Framework
Under Rule 33 of the Ontario Rules of Civil Procedure, a party may move for an order requiring a physical or mental examination of an opposing party whose condition is in issue. The order may specify the time, place, and practitioner. Importantly, the rule and the corresponding section of the Courts of Justice Act (s. 105) give the court discretion to determine these terms based on what is fair and just.
No Fixed Rule on Location
As stated in Woo Seto v. 2041098 Ontario Limited, 2013 ONSC 680, there is no general rule regarding the location of a defence medical examination. While defendants have a presumptive right to select their medical expert, the place of examination must also be convenient and just. The court in McGowan v. Green, 2020 ONSC 686 emphasized that this includes a consideration of adequate transportation and the party’s specific circumstances. For example, if the plaintiff has no way of commuting to the location of the proposed defence medical examination, the court may order the defendant to arrange transportation or arrange the defence medical examination at a closer location to the plaintiff’s home.
The Right to Choose is Not Unfettered
In Bock et al. v. Gudelis, 2023 ONSC 5930, the Ontario Superior Court reaffirmed that while a defendant generally retains the right to select their own medical expert for the purpose of an defence medical examination, this right is not absolute. The Court emphasized that the choice of expert, although significant to the defense, must be balanced against the plaintiff’s individual circumstances. If requiring the plaintiff to attend an defence medical with a particular expert (especially one located far from the plaintiff’s home) would result in unreasonable inconvenience, the Court may exercise its discretion to impose conditions or suggest alternatives. This is particularly true where the plaintiff is elderly, injured, or psychologically vulnerable. In such cases, the Court’s intervention ensures procedural fairness, recognizing that the litigation process must accommodate legitimate health and accessibility concerns, even if doing so may limit the defendant’s ideal choice of expert.
Mental Health Matters
It is important to take the location of a defence medical examination into consideration when a child or a mentally vulnerable plaintiff is involved. Consider a scenario where a minor has witnessed a violent accident involving a family member and is potentially suffering from PTSD. Forcing this child to travel long distances, may worsen their condition. This isn’t just inconvenient; it’s a health risk.
Similarly, the risk of worsening the child’s mental health may in itself become a factor that could negatively affect the reliability of the medical assessment. Placing the burden of long-distance travel on a minor who is mentally suffering and traumatized, may be seen they the court as inappropriate.
Courts have shown sensitivity to these circumstances. In McGowan, the court accepted expert evidence that travel would worsen the plaintiff’s condition and would be detrimental to their health. Subsequently, the court allowed the defendant to arrange another medical examination of the plaintiff in a closer location to their home. In Bock, the court sided with a plaintiff whose health and age made travel to a defence medical examination impractical, ordering the exam to be conducted closer to their home.
Defendants Must Prove Necessity and Proportionality
When a defendant seeks to have a medical examination conducted by a physician located far from the plaintiff’s residence, they must provide clear and compelling evidence that the chosen doctor possesses unique qualifications essential to the litigation. It is the defendant’s burden to show that no other physician, particularly one located closer to the plaintiff, can perform the examination to the necessary standard.
If this necessity cannot be substantiated, the selection will not be deemed justified. In such cases, the court may order the defendant to select a physician closer to the plaintiff’s home. Unless the defendant can demonstrate that the proposed physician offers expertise that is both unique, indispensable and unavailable locally, the court is unlikely to consider the choice proportionate.
Courts prioritize the convenience and well-being of the plaintiff, particularly in cases involving children, over party preference. If local resources can meet the litigation needs, those options will typically be favored.
In Scissons v. Lajoie, 2008 CanLII 114, the court upheld the refusal of a defense medical examination where there was no adequate evidentiary basis for the physician selected by the defendant, emphasizing the importance of fairness and objectivity in the process.
Likewise, in Lue v. TD Bank Financial Group, 2015 ONSC 6288, the court underscored the principle of proportionality, stating that litigation needs, not party preferences, must guide the selection of a medical examiner.
Similarly, in Harris v. Mast Landscaping Limited, 2021 ONSC 3937, the court required the defendant to choose an alternative location for the defence medical examination, noting there was no compelling reason to make the plaintiff travel when equivalent expertise was available locally.
Conclusion
As seen above, the courts in Ontario strive to balance the defendant’s right to select a defence medical expert with the principle of fairness, especially where vulnerable parties are concerned. Geographic proximity, medical necessity, and psychological well-being should all be considered. While a defence medical exam is an important aspect of personal injury litigation, its execution must not harm a party’s mental health or the fairness of the proceedings.
Ultimately, the question isn’t simply where a defence medical examination can be held, but whether it’s reasonable, just, and proportionate to the needs of the case and the people involved.
