The question before the Court was when Expert Medical Reports should be exchanged by the Parties. The Defendant argued that a determination as to whether he would make a Rule 5.41 Application for a Medical Examination of the Plaintiff was not required until the Plaintiff provided his Experts’ Reports pursuant to Rule 5.35—Rule 5.35 provides that if a Party intends to rely on expert evidence at Trial, the Experts’ Reports must be served in a specific sequence. The Party who bears the primary burden of proof must serve their Experts’ Report first, followed by the rebuttal Experts’ Reports of the other Parties. The Party who served the initial Experts’ Report may then serve surrebuttal Experts’ Reports. Master Wacowich noted that no such sequence was required under the former Rules, which provided that each Party had to serve their primary Experts’ Reports not less than 120 days before Trial.

Experts are required to provide their honest opinion as to the state and extent of the Plaintiff’s injuries. It is more likely that the Defendant’s expert will provide a fresh opinion if he or she is not influenced by another expert opinion. As such, there was no reason why the Defendant could not or should not make a determination on the Rule 5.41 Application within a reasonable period of time after Questioning. Master Wacowich held that the old practice should be continued, and that the Plaintiff should not be required to produce its reports until the Defendant has obtained its Rule 5.41 report or waived its right to apply for one. Although Rule 5.41 does not clearly provide for such an approach, it does not preclude it. Pursuant to Rule 5.35(2), Master Wacowich ordered that the Plaintiff was not required to serve his Experts’ Reports without further Court Order.

Master Wacowich also noted that Rule 5.41 does not include a provision for the Court to direct the Defendant to make an election under Rule 5.41. However, Rule 1.2 provides that the Rules are intended to facilitate the quickest means of resolving a Claim at the least expense. Master Wacowich directed that within two months the Defendant was required to either make a Rule 5.41 Application or advise Plaintiff’s counsel that he would not be making such an Application. Failing that, the Plaintiff’s Experts’ Reports would be provided. Should the Defendant thereafter attempt to make a Rule 5.41 Application, Master Wacowich recommended that members of the Court refuse the Application on the basis that such an Application is not in good faith and not in harmony with the preferred and longstanding practice of the Court.