Nikolakakos v Hoque et al. 2015 ONSC 4738 – This is a motion brought by the Defendants in a personal injury action for an Order compelling the Plaintiff to attend a defence medical examination with an orthopedic surgeon. The Plaintiff agreed to attend on the condition that the Defendants’ counsel provided her with their letter of instruction to the orthopedic surgeon. The Defendants’ counsel refused to provide the letter and they subsequently brought this motion.

At issue before the Court was whether the Defendants were required to provide the Plaintiff with a copy of their counsel’s letter of instruction to the orthopedic surgeon as a term of the Plaintiff’s agreement to attend the proposed medical examination.

Rule 33.06 of the Rules of Civil Procedure requires the examining health practitioner to prepare a report following the examination that must be served on the other party. If the Defendants wish to rely on the opinion expressed by the health practitioner at trial and call that individual as an expert witness, then Rule 53.03(2.1) provides that the medical report must include the instructions provided to the expert in relation to the proceedings.

In his decision, Master Graham held that the requirement that the Defendants serve a medical report under Rule 33.06(2) does not constitute a waiver of privilege with respect to the Defendants’ communication with the health practitioner conducting the examination. He also found that any requirement for the Defendants to disclose their counsel’s instructions to their medical expert does not arise until the Defendants have elected to rely on said expert at trial. Accordingly, Master Graham found that it was premature for the Plaintiff to request the instructions from the Defendants’ counsel prior to the medical examination.

To further assist the parties and the courts generally, though not necessary for this case, Master Graham also provided a ruling on whether the Defendants must produce their counsel’s instructing letter in the event that they do elect to call the surgeon as a witness at trial. On this point, Master Graham held that a Defendant is not obliged to produce its instructing letter to a medical expert at the time of scheduling the examination or at the time of the mandatory service of the report under Rule 33.06(3). However, the Defendants must produce this letter in addition to any further instructing letters for additional reports once the Defendants have elected to call the expert at trial.

Ultimately, Master Graham granted the motion to compel the Plaintiff to attend the medical examination and did not require the Defendants to produce their instructing letter until they decided to call the orthopedic surgeon as a witness at trial. No costs were awarded on the motion.

What the Insurer Should Know

When retaining an expert, the insurer should be aware that while the retaining letter and any instructing letter after that are not producible prior to the expert’s assessment, the communications will have to be produced at the trial if the expert is to testify. This should be in the mind of the individual who drafts the retainer letter and they should be careful when crafting that correspondence.

Mitch Kitagawa	Jennifer Therrien