Court rules that voluntary attendance at IME does not constitute a "first examination" under Rule 7-6

In reasons for judgment released today, the court in Kenny v. Bateman, 2017 BCSC 900, addressed the issue of whether an IME was a "second IME" under Rule 7-6 given that the plaintiff had voluntarily attended a previous IME.  The court concluded that the second IME was not a "second IME" for the purposes of the Rule.  Mr. Justice Blok said:

[40]         Voluntary attendance at a medical examination does not constitute a first examination under the Rule: Teichroab v. Poyner, 2008 BCSC 1130 at para. 24 [Teichroab].

[41]         In contrast, the express mention of Rule 7-6 in the correspondence between counsel lends support for the plaintiff’s argument that the IME by Dr. Russell must be considered a Rule 7-6 examination.

[42]         The correspondence between counsel leaves the exact nature of the examination unclear.  There is support for both views.  I conclude, however, that the defendant’s argument is the stronger one because the Rule refers to an order being made,  a point mentioned by Barrow J. in Teichroab, where the former iteration of the Rule (Rule 30) was at issue:

[24] In my view, the wording of the Rule and the weight of authority supports the conclusion that the “further examination” contemplated by Rule 30(2) means an examination in addition to one ordered under Rule 30(1).  To the extent that is so, there can be no question but that the examination ordered by the master was a first examination for purposes of the Rule.  The examination carried out by Dr. Laidlow was not ordered under Rule 30(1).

[Emphasis added.]

[43]         In the present case the examination by Dr. Russell was not ordered by the Court, there was no express agreement or reference to the examination taking place as if there were an order from the Court, and there was no mention of the examination constituting a first examination under Rule 7-6.  The absence of that type of language distinguishes this case from Stene v. Echols, 2015 BCSC 1063 [Stene] and Stocker v. Osei-Appiah, 2015 BCSC 2312, both cited by the plaintiff.  The mere mention of the Rule in the correspondence was, in my view, not enough.

[44]         Accordingly, I conclude that the application for a neuropsychological examination of the plaintiff by Dr. Lysak was a first examination under the Rule.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/09/2017BCSC0900.htm