In the case of Jaji and Danno v. Singh, Master Graham of the Superior Court of Justice concluded that the plaintiffs acted reasonably in refusing to sign a consent form without the opportunity to consult their counsel prior to doing so. The defendant’s motion for an Order that the plaintiffs pay the cancellation costs of the defence medical examination was dismissed.
The plaintiffs claimed damages arising from personal injuries sustained in a motor vehicle accident that occurred on August 27, 2016. The defendant arranged for both plaintiffs to undergo defence medical examinations on January 13, 2021, with Dr. Erin Boynton. Plaintiffs’ counsel confirmed their attendance in writing on November 24, 2020, and requested that an interpreter be present.
When the plaintiffs arrived at Dr. Boynton’s office on January 13, 2021, they were provided with a medical consent form and were asked to signed it. As they had been advised by their counsel to refrain from signing any documents, they attempted to contact their counsel to speak with him regarding the consent form. The plaintiffs were unable to contact their counsel and the examination was cancelled. Dr. Boynton then sent defence counsel an invoice for cancellation fees in the amount of $2,260.00, which the defendant paid. The defendant also paid for the interpreter, which totaled $166.62.
Submissions of the Defendant
The defendant submitted that the plaintiffs should not have been surprised that they were asked to sign a consent form at Dr. Boynton’s office, based on the fact that they had previously signed consent forms for the medical assessments that were arranged as part of their Accident Benefits application.
The defendant further stated that Dr. Boynton’s consent form was simple and straightforward and that there was no reason that the plaintiffs should have hesitated to sign it.
The defendant also submitted that Dr. Boynton would be required to sign and submit with her reports an Acknowledgement of Expert’s Duty (form 53), which would address the issue of her impartiality such that the plaintiffs’ concerns that their defence medical examinations were part of an adversarial process were unfounded.
Finally, the defendant stated that plaintiffs’ counsel should have told the plaintiffs before the date of their defence medical examinations that they would be required to sign consent forms so that they would have been prepared to do so upon arrival at Dr. Boynton’s office.
Submissions of the Plaintiffs
The plaintiffs submitted that the defendant is entitled to require the plaintiffs to attend defence medical assessments and that as a result, the doctor is retained by the defendant.
Further, the plaintiffs were not previously informed by anyone that they would be required to execute an authorization form for the defendant’s doctor of choice.
Plaintiffs’ counsel also submitted that the plaintiffs have provided a reasonable explanation for their refusal to sign the consents presented to them at Dr. Boynton’s office. This was the first defence medical that the plaintiffs had attended, and the involvement of Dr. Boynton was in the context of the adversarial process of litigation, and unlike the circumstances of their previous Accident Benefits assessments. The plaintiffs believed that they had a right to be represented and did not want to sign anything without their lawyer’s input.
With respect to the consent form of Dr. Boynton, plaintiff’s counsel submitted that they were not aware that they would be asked to sign anything and that they were justified in refusing to sign an unfamiliar document in the context of an adversarial process. Further, if the consent form was provided to plaintiffs’ counsel before the date of the assessment, they could have reviewed it in time and avoided this issue.
The decisions of Valin J. in Chapell v. Marshall Estate,  O.J. No. 3009 and Tanguay v. Brouse,  O.J. No. 4711 and the more recent decision of Grace J. in Coll v. Robertson, , 2020 ONSC 383. address the issue of whether a plaintiff about to undergo a defence medical examination is required to sign a consent.
In Chapell, the court held that “the plaintiff is not required to sign any authorization, consent or agreement presented” by the defence medical examiner. In Tanguay, the court came to the same conclusion both with respect to a consent and a document titled “Background Information”.
Grace J. in Coll noted that the court “has the inherent jurisdiction to control the discovery process”, which includes defence medical examinations, and that plaintiff’s counsel acknowledged that this included jurisdiction to require the plaintiff to sign a consent in relation to an examination by a health care practitioner. In ordering that the plaintiff execute a consent if requested by a defence medical examiner, Grace J. commented: “[I]t is entirely appropriate to document the parameters of the relationship of persons involved in an “intrusive” examination – whether as examiner or patient. In fact, I would go further and say it is essential that same be reduced to writing” (Coll, para.31).
Grace J. in Coll also noted that on two occasions, Ms. Coll’s solicitors declined the request that M. Coll execute documents requested by the health practitioners proposed by the moving party. Further, no explanation was given.
Master Graham accepted Grace J.’s ruling in Coll that the court may order that a plaintiff sign a consent prior to a defence medical examination, however, the issue in this case is whether the plaintiffs refusal to sign the consents presented to them, without being able to review them with their counsel, should result in any cost consequences to them. Master Graham concluded that just because the plaintiffs signed forms in relation to their Accident Benefits assessment, it does not mean that they should have been expected to unquestioningly sign Dr. Boynton’s forms. Master Graham makes note of the difference between a psychological assessment to determine what, if any, psychological treatment the plaintiffs’ first party insurer should pay for, and an examination with Dr. Boynton, which was in the context of an adversarial claim for damages.
With respect to the complexity of the consent form, Master Graham outlines a handful of issues. To begin, the form identifies the individual signing the form as a “client,” but the plaintiffs are only clients of their counsel in this action. Second, the form authorizes Dr. Boynton to release the report to and communicate with “the referred agency” without identifying who or what “the referring agency” is. Third, the form refers to Dr. Boynton collecting personal health information, but it is unclear whether Dr. Boynton will be doing this on her own initiative or will simply be relying on the information that is provided to her. Master Graham stated that the consent form is not as straightforward as the defence makes it seem.
With respect to the defendant’s argument that Dr. Boynton would be required to sign a “Form 53 – Acknowledgement of Expert’s Duty,” Master Graham accepts that this is the case, however, the plaintiffs could not be expected to be aware of the intricacies of rule 53.03 or the content of an Acknowledgement.
Further, Master Graham concluded that it is the defendant arranging the defence medical examination who requires the consents to be signed, and therefore, it is the defendant who should make the consents available for review by the plaintiffs and their counsel before the date of the appointment.
Master Graham accepted the plaintiffs’ concerns with respect to signing the consents immediately before the examination and stated that the plaintiffs should have been given the opportunity to seek the guidance of their lawyer before doing so. Master Graham stated that “if the defence expert was going to require the plaintiffs to sign documents prior to conducting the defence medical examinations, it was incumbent on defendant’s counsel to give the plaintiffs an opportunity to review those documents with their counsel before signing them.”
Finally, with respect to costs, Master Graham concluded that the defendant shall pay to the plaintiffs the costs of the motion fixed at $5,000.00 payable in any event of the cause. Based on the parties’ costs outlines, fair and reasonable costs of the motion were fixed on a partial indemnity basis at $5,000.00 inclusive of all fees, disbursements and HST.