Canada: Avoiding Costly Cancellations Of Defence Medical Examinations

The decision of Master Graham in Jajjo and Danno v. Singh, 2021 ONSC 4269, addressed the conduct of defence medical examinations and the expectation of experts that plaintiffs attending an assessment sign a consent or other form prior to commencing the assessment.

I will briefly discuss Master Graham's decision and then provide practical tips for counsel to address when retaining experts and communicating details regarding defence medical examination to plaintiffs.

The Decision

Facts

In Jajjo, the expert asked the plaintiffs to sign consent forms.  The plaintiffs refused to do so without consulting with their counsel, who had previously advised them not to sign any documents.  The plaintiffs tried, but failed, to reach their counsel from the expert's office.

As a result, and although there was conflicting evidence on what transpired thereafter, the Court accepted that the expert would not proceed with the examinations. The expert proceeded to send defence counsel invoices for cancellation fees.  The defendant brought a motion to recover the expert's cancellation fees, as well as those of the interpreter that was also in attendance for the examinations.

Reasoning

Master Graham did not find defence counsel's submissions persuasive that, based on the plaintiff's sworn affidavit, he had previously signed consent forms at medical assessments in the accident benefits context, and that the plaintiffs should therefore not have been surprised that they were asked to a sign a consent form at the defence medical examination.

Rather, His Honour appears to have accepted the plaintiffs' concerns that this was a defence medical examination at the behest of the defendant, and so was unlike any assessment in the accident benefits context. Master Graham noted 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.   

Further, and although the consent form was quite brief, Master Graham highlighted some nuances therein that may have been unclear to the plaintiffs. Master Graham stated that it was reasonable for the plaintiffs to seek the guidance of their lawyer before signing the form.

Master Graham indicated that, if the defence expert was going to require the plaintiffs to sign documents prior to conducting the examinations, it was incumbent on defence counsel to give the plaintiffs an opportunity to review the documents with their counsel. His Honour therefore refused to visit the cancellation fees on the plaintiffs.

As a result, the defendant's motion for payment of the cancellation fees was dismissed.

The Takeaway

Looking forward, and when confirming expert retainers, defence counsel would be well advised to obtain copies of consents or other forms that a defence expert may require a plaintiff to execute at a defence medical examination. It would be a best practice to make those forms available for review by the plaintiffs and their counsel well before the date of any defence medical examination.

When dealing with self-represented plaintiffs, it is particularly important that counsel ensure to give sufficient time in order to allow the self-represented litigant to seek independent legal advice as necessary.

That way, if there is going to be a dispute over a consent form, it can be addressed well prior to the examination.  If no objection is made, and if the plaintiff refuses to sign the form when he or she attends the examination, then the plaintiff will most likely be responsible for any cancellation fee.

If parties cannot reach agreement as to the form and content of a consent or other form to be signed by a plaintiff in order to facilitate a defence medical examination, the parties should seek guidance from the Court to resolve the issue.

Rogers Partners LLP is an experienced civil litigation firm in Toronto, Ontario. The firm represents insurers and self-insured companies in numerous areas, including motor vehicle negligence, occupiers' liability, product liability, professional negligence, construction claims, statutory accident benefits, disability benefits, municipal liability, medical negligence, sexual abuse, and insurance coverage disputes.

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