Defence Medical Examinations and Obligations

In the recent case of Nikolakakos v. Hoque, 2015 ONSC 4738, the Court addressed the issue of whether the defendant had to provide the plaintiff with a copy of their instruction letter to their medical examiner who was scheduled to examine the plaintiff, prior to the examination taking place. In court actions, where the physical or mental condition of a party is in question, a party can seek the medical examination of the other party.

Rule 33.01 of the Rules of Civil procedure states: A motion by an adverse party for an order under section 105 of the Courts of Justice Act for the physical or mental examination of a party whose physical or mental condition is in question in a proceeding shall be made on notice to every other party.

In Nikolakakos, the plaintiff refused to attend at a defence medical examination until the defendant produced a copy of the letter providing instructions regarding the examination written to the expert. The plaintiff was seeking a copy of the instructing letter before the defendant had made any decision as to whether or not they intended on relying on the expert’s report at trial.

Decision: Master Graham held that a party arranging a medical examination under the Rules is not obliged to produce a copy of its instructing letter to the examining health care provider until the party formally elects to call that health care provider (physician) as a witness at trial. Where a party intends to call an expert at trial, Rule 53.03(2.1) requires the expert to include in his or her report any instructions provided such as letters of instruction.

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