Is a plaintiff entitled to a defence medical examination pursuant to section 258.3 of the Insurance Act?

Ontario, Canada

The following excerpt is from Baron v. Kingsway General Insurance Company, 2006 CanLII 8463 (ON SC):

As Gillese J. noted in Tsegay v. McGuire at paras. 4 and 5, In my view, an insurer's right to require the plaintiff to undergo a medical examination pursuant to s. 258.3 of the Insurance Act is separate and independent from the right of a defendant to bring a motion for a medical examination pursuant to s. 105 and Rule 33.01. To hold otherwise would be to undermine the operation of the two regimes. The purpose of s. 258.3 of the Insurance Act is to give an insurer the right to an independent medical [page301] examination so as to provide early disclosure to all parties, thus facilitating prompt settlement of claims without the need for an action. The purpose of s. 105 and Rule 33 is to ensure that a defendant has full rights of production and discovery, once an action has been commenced and pleadings exchanged. These latter provisions ensure that if a party puts his or her medical condition in issue in a civil proceeding, the opposing party can test that allegation under fair conditions. A defendant is entitled to complete discovery in order to properly defend and to assess the allegations in the pleadings. Medical reports are critical to the resolution of personal injury disputes. The choice of physician to conduct the defence medical examination is a matter of importance to the defence. Medical reports contribute to settlements and constitute the crucial expert evidence on which a court relies to do justice between the parties, if the matter proceeds to trial. The policy behind the defence medical exam is to uphold the right of the defendant to conduct his or her defence and to assist the court at trial by furnishing expert evidence that is subject to the adversarial process. The timing of the medical examinations is also different. The nature of the claim may have changed from the time the insurer exercises its right under s. 258.3 to the time the action is brought. It appears that this is the case in the within action.

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