Innocent car accident victims must now face the prospect of a court ordered medical examination conducted by doctors that are potentially unfair, impartial, not credible and not objective.  In a stunning Masters decision of the Supreme Court requiring an ICBC claimant to attend a medical exam, the Master stated,

“Questions of fairness, partiality, credibility, and objectivity of a physician are matters for the trial judge, not the motions judge or master on an application: Sinclair (para. 21). “(Wohlleben v. Dernisky,2016 BCSC 976)

No reference was made to the recent Supreme Court of Canada case establishing a new expert evidence test (White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23).  Sinclair v. Underwood, 2002 BCSC 354 was decided before the 2010 change in the Supreme Court Rules including the concept of proportionality and a new Duty of Expert Certification. Top personal injury lawyers need to know that Sinclair v. Underwood may no longer be good law and has not been considered by the Court of Appeal.
In this personal injury application, however, there was very little in the way of affidavit evidence to support the refusal to attend. In fact the court found it was highly unlikely that the claimant had copies of decisions in which Dr. Dost was a witness. The selection of cases the lawyer for the claimants provided did not include the cases in which Dr. Dost’s evidence was accepted. Importantly,

[7] There is no demonstrated misconduct on the part of Dr. Dost, and indeed, the plaintiff does not suggest there is any. The plaintiff says that she finds herself unable to repose her trust and confidence in Dr. Dost and offer him the level of cooperation necessary for the examination to reach a meaningful conclusion. This evidence is simply a bare assertion and not based on any evidence of misconduct.

Experts are generally retained, instructed and paid by one of the adversaries in a personal injury lawsuit. These facts alone do not undermine the expert’s independence, impartiality and freedom from bias. While the refusal to attend Dr. Dost was not well founded, the Master may have fell into error to suggest an examination cannot be refused in a pre-trial motion based on questions of  fairness, partiality, credibility, and objectivity.

Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

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