Defendants are entitled to a medical exam before a specialist of their choice: court
The Ontario Superior Court has recently ordered the plaintiff in a personal injury case to attend a defence-initiated virtual medical exam.
In Ciubotariu v. Joshi, 2023 ONSC 1155, Andreea Ciubotariu was involved in a motor vehicle accident in Brampton. She alleged that she suffered injuries from the accident, so she filed a claim for damages of $1 million.
The defendants, Dhiraj Joshi and Sushma Joshi, sought leave to compel Ciubotariu to attend a virtual medical assessment with a specialist of their choice, Dr. Berbrayer. Ciubotariu opposed the motion on the ground that the defendants chose a paper review rather than arranging an in-person assessment.
The Ontario Superior Court explained that the Courts of Justice Act permits a party to contest allegations concerning the other party's medical condition when the other party has put that condition in issue. Further examinations might be appropriate to ensure fair adjudication of a matter involving the evidence of medical experts. The court noted that necessity, fairness, and prejudice determine whether the court should compel a plaintiff to attend a further defence medical examination.
The court concluded that the defendants had met the necessity criterion because Dr. Berbrayer had not conducted any real assessment of the plaintiff. The defendants had a right to have an independent medical examination before a specialist they chose. The court also said that trial fairness dictates that both litigants must be given an equal opportunity to present their evidence in the upcoming trial. The court ruled that Ciubotariu would not be prejudiced if she attended Dr. Berbrayer's virtual assessment because it would not delay the trial.
Ciubotariu's counsel argued that the defendants chose a paper review rather than arranging an in-person assessment. In the court's view, the imperatives of trial fairness trump the need to comply with the rule. The court said that the medical report from a specialist selected by Ciubotariu would go unchallenged if the defendants' request were not granted.
The court ultimately granted the defendants' motion to compel Ciubotariu to attend a virtual medical assessment with Dr. Berbrayer.