Written By: Nick Todorovic and Cody Malloy, Summer Student
In a June 14, 2021, Superior Court decision, Master Graham held that the defendant was responsible for the costs of cancelled defence medical examinations of the plaintiffs after the plaintiffs refused to sign the medical consent forms.
After the plaintiffs suffered injuries from a motor vehicle collision, the defendant arranged for the plaintiffs to undergo defence medical examinations by Dr. Erin Boynton, an orthopaedic surgeon. Before arriving at the doctor’s office, plaintiffs’ counsel had advised them not to sign any documentation. Upon arrival at the examining doctor’s office, the plaintiffs were asked to sign medical consent forms. The plaintiffs attempted to contact their counsel but were unable to do so, and the plaintiffs were asked to leave. Defence counsel later received invoices for the cancelled appointments, and the defendant brought a motion to recover these costs from the plaintiff.
The defendant argued that the plaintiffs should not have been surprised by having to sign medical consent forms for the examination.  The defendant further argued that the plaintiffs had previously signed consent forms for accident benefits psychological examinations, the doctor’s form was straightforward, the doctor was required to sign an Acknowledgment of Expert’s Duty (Form 53), and the plaintiffs’ counsel should have advised the plaintiffs they would be required to sign a medical consent form. 
The plaintiffs argued that they had never attended defence medical examinations before, and they thought the examinations were being done for the benefit of the defendant, and they wanted legal advice before signing the medical consent forms.  The plaintiffs felt that the brevity of the doctor’s medical consent form was irrelevant because of their unfamiliarity with the adversarial litigation process, and the examining doctor could have forwarded the consent forms to the plaintiffs’ counsel for review beforehand. 
Master Graham pointed to the relevant section of the Courts of Justice Act for the case:
 The relevant Courts of Justice Act provisions with respect to defence medical examinations are s. 105 (2) and (5):
105(2) Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.
(5) Where an order is made under this section, the party examined shall answer the questions of the examining health practitioner relevant to the examination and the answers given are admissible in evidence.
Master Graham referred to Coll v. Robertson, 2020 ONSC 383, which stated that it is appropriate, for the purposes of a defence medical examination, to require a plaintiff to sign a consent form before the examination because the examination is “intrusive” and it is essential that the consent is reduced to writing. 
Master Graham dismissed the defendant’s argument regarding the plaintiffs previously signing consent forms for accident benefits psychological examinations because the psychological examination would determine “what if any psychological treatment the plaintiffs’ first-party insurer should pay for”, whereas the defence medical examinations were “in the context of an adversarial claim for damages”. 
Master Graham also dismissed the defendant’s claim that the consent form was straightforward due to its brief nature because the consent form contained language that was not clear, and therefore not reasonable to expect the plaintiffs to sign the forms without consulting with their counsel.  The Court also dismissed the defendant’s argument that the examining doctor would be required to sign a Form 53 because the plaintiffs would not have understood the content of the form. 
Importantly, Master Graham placed the onus on the defendant to address the requirement for consent for their medical examinations.  Master Graham stated that the defendant should not “simply assume that the plaintiffs, on arriving at the defence medical appointment, will sign a document prepared by the opposing expert that they have never seen before.” 
Master Graham summarized his conclusion as follows:
 I accept that the plaintiffs’ concerns about being asked to sign documents at the defence physician’s office immediately before their examinations were reasonable. This is not to say that there was anything sinister in Dr. Boynton’s request that the plaintiffs sign the forms, but rather that the plaintiffs should have been given the opportunity to seek the guidance of their lawyer before doing so. If the defence expert was going to require the plaintiffs to sign documents prior to conducting the defence medical examinations, it was incumbent on the defendants’ counsel to give the plaintiffs an opportunity to review those documents with their counsel before signing them.
Master Graham ultimately dismissed the defendant’s motion, holding that the plaintiffs “acted reasonably in refusing to sign Dr. Boynton’s consent forms without the opportunity to consult counsel prior to doing so.” 
 Jajjo and Danno v. Singh, 2021 ONSC 4269 (CanLII) at para 9.
 Ibid at paras 12-15.
 Ibid at para 17.
 Ibid at paras 20-21.
 Ibid at para 27.
 Ibid at para 30.
 Ibid at para 31.
 Ibid at para 32.
 Ibid at para 33.
 Ibid at para 37.