Plaintiff Required to Attend Defence Medical Examination

An Ontario court has affirmed that a defendant has wide latitude to choose the doctor who will perform a defence medical examination of a plaintiff.  In Ofori v. De Oliveira et al., the plaintiff Josep Ofori”s main complaint was that he suffered from chronic pain syndrome.  However, Mr. Ofori also alleged in his Statement of Claim that he suffered from “injuries to his shoulders, neck, upper torso, hips and lower extremities, as well as a general spraining straining and tearing of the muscles, tendons, ligaments, discs, nerves and vessels throughout his entire body.”

The defence brought a motion for an Order that Mr. Ofori attend a defence medical examination with Dr. Hugh Cameron, an orthopaedic surgeon.  Mr. Ofori opposed the motion on the basis that Dr. Cameron was not qualified to diagnose or treat chronic pain syndrome.    The Court noted that Mr. Ofori’s lawyers had themselves commissioned a report by an orthopaedic surgeon and granted the defence motion.  He wrote the following passage regarding a defendant’s right to choose his or her own expert witness:

Parties in the position of the moving defendant should be given considerable latitude in their choice of expert witnesses they wish to use in order to defend actions like the present one.  It is inappropriate for a plaintiff to dictate now a defendant should defend an action. The fact that the plaintiff’s solicitors had the plaintiff examined by an orthopaedic surgeon leads me to the conclusion that the proposed examination by Dr. Cameron will not be a complete waste of time.  Dr. Cameron has qualifications relevant to at least some of the plaintiffs’ alleged injuries.

For all these reasons, an order will issue that plaintiff undergo a medical examination by Dr. Cameron pursuant to section 105 of the Courts of Justice Act.

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