It is rare that the court will order any further medical examinations after the 84 expert deadline. It was the court’s view in Falbo v. Ryan, 2015 BCSC 2452 that a physical examination was not necessary in order to provide a responsive report. Master Harper said that,
“These types of orders are discretionary. They ought to be rare. There is, unfortunately in my view, what seems to be an acceleration of these types of applications. They should be extremely rare, and in my view the defendants do not require a physical examination of the plaintiff in order to properly respond to Ms. Craig’s two functional capacity evaluations”
Rule 11-6(4) is not a licence for any party to wait until they have seen the other’s expert reports before deciding what expert evidence they need to obtain or rely on. Where each party has properly prepared its case and used the rights given by the Rules to discover the other party’s, responsive reports under R. 11-6(4) should rarely be necessary and IME’s for the purpose of preparing such reports should be rarer still.
There is always prejudice to the claimant in delayed report production and would be left with no opportunity to respond (Tournier v. Ruckle ,2017 BCSC 308 Master Muir in Chambers).
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.