ICBC has requested that I attend an independent medical examination to be conducted by a medical specialist of their choice. Can I refuse to attend this medical examination by refusing to sign the medical specialist’s consent form?
Today’s case, Gil v Wal-Mart Canada Corporation / La compagnie Wal-Mart du Canada (2017 BCSC 135), is an appeal of a Master’s decision regarding the court’s authority to order an individual’s signing of a consent form required for the purpose of performing an independent medical examination.
In the previous decision, delivered by Master Harper, the Plaintiff refused to sign the consent form provided by a medical specialist appointed by ICBC for the purpose of performing an independent medical examination. In turn, the medical specialist refused to perform the examination until the consent form was signed, resulting in ICBC’s application to the court for an order that the Plaintiff sign the consent form. Upon review of the past jurisprudence, Master Harper decided that the court did not have authority to order a person’s signature on a consent form. Further, Master Harper also decided that even if the court did possess this authority, he would not make the order as he viewed the consent form itself as unreasonable.
On appeal, Mr. Justice Funt determined that that the court did in fact possess the authority to order a person’s signature, so long as the consent form was reasonable. After making this determination, Mr. Justice Funt turned his attention to the consent form which he found to be reasonable, again differing from the previous decision of Master Harper. Mr. Justice Funt concluded by ordering that the Plaintiff sign the consent form and attend the medical examination, or be at risk of having the claim struck upon application by ICBC to the court.
[28] In Kalaora, Justice Hyslop ruled that the court can order that a plaintiff sign a medical examiner’s reasonable form in order for an IME to be conducted by the medical examiner: paras. 75 and 83. In Kalaora, the plaintiff refused to sign a form of consent for an IME of the plaintiff. At the hearing before Justice Hyslop, no argument was raised that the form of consent was not reasonable. Justice Hyslop ordered the plaintiff to sign the form of consent. The rule is that where an IME is to be conducted, the court will order a reasonable form of consent to be signed by the examinee.
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[34] In sum, I must follow the rule in Kalaora.
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[40] Although not necessary having regard to the binding authority of Kalaora, I note that the case at bar is readily distinguishable from Peel where our Court of Appeal set aside an order requiring particular parties to endorse a “consent order”. Ordering endorsement of a “consent” court order is not consent. In the case at bar, in context, the court is not forcing the plaintiff to sign the form of consent. If the plaintiff chooses not to sign the form of consent, the plaintiff’s claim may be struck. It is the plaintiff’s choice.
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[50] The appeal is allowed except with respect to the payment by the plaintiff of cancellation fees related to the scheduled March 2, 2016 IME.
[51] The plaintiff is ordered to attend an independent medical examination to be conducted by Dr. Travlos at a time and location arranged by counsel.
[52] The plaintiff is ordered to sign the subject form of consent used by Dr. Travlos. If the plaintiff refuses to sign the form of consent, the defendant, Mr. Pandher, is at liberty to apply to have the plaintiff’s claim struck.
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