Plaintiff ordered to attend IME with defence psychiatrist

In reasons for judgment released today, the court in Huang v. Bertelsen, 2015 BCSC 2650, ordered the plaintiff to attend an independent medical examination with a defence psychiatrist.  The plaintiff in Huang objected to the attendance on the basis that she had a trip booked to Las Vegas that conflicted with the examination date.   The court was not impressed with this argument, as the plaintiff had prior knowledge the IME would take place on that day.  In ordering the plaintiff’s attendance (and awarding the defence its costs), Madam Justice Fenlon said as follows:

[6]             The only issue is the convenience of the plaintiff. She says she will be greatly inconvenienced by having to attend the IME. She is starting a new business, a store which sells items to adults. It has been described as an exotic or erotic boutique, and she says that in order to get back on her feet (and although the words were not used also in order to mitigate her losses), she needs to attend this conference in order to make contacts to figure out how best to run this kind of business and to succeed. She says that it will help with her depression to get her boutique underway, and this conference is going to help her do that.

[7]             The convenience of a plaintiff is one of the factors the court considers in determining whether an order should be made directing a plaintiff to attend an IME. In this case the defendants have already accommodated the plaintiff and her objections once. This is a situation in which the plaintiff, faced with knowledge of the date for the IME, subsequently booked flights and hotels in disregard for the commitment she already had to see a busy specialist.

[8]             The competing interests I must balance on this application are the defendants’ right to have a level playing field for trial, the right to have an independent medical specialist, a psychiatrist, examine the plaintiff; and on the other hand the plaintiff’s desire to attend a conference to help her with her business.

[9]             I conclude that my discretion should be exercised to compel the plaintiff to attend the IME. This is not a situation in which she will have no other opportunity to attend such a conference. In fact, she attended one in September 2014. She will be attending another one from January 14 to 17 in Las Vegas. This would be her third such conference in the space of a number of months. Although they are described as rare, the sheer number that have occurred in the last four months suggests that they are not quite as rare as the plaintiff is suggesting them to be.

[12]         The defendants have been successful on this application. In my view the application should not have been necessary. The defendants are entitled to their costs of the application at Scale B. It is probably clear but that is not forthwith. That is at the end of the proceeding.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/15/26/2015BCSC2650.htm