Nielsen J

1.1: What these rules do
5.41: Medical examinations
5.42: Options during medical examination
7.1: Application to resolve particular questions or issues

Case Summary

The Parties attended before Nielsen J. for the Trial of an issue pursuant to Rule 7.1; specifically whether the Defendant had breached the terms of an insurance policy. Pursuant to the insurance policy, the Defendant made arrangements for an independent medical evaluation of the Plaintiff. The Plaintiff wanted the medical examination to be recorded by video, but the independent medical examiner would not allow video to be taken during the medical evaluation. The Plaintiff wrote to the Defendant and stated that she wished to either have the medical evaluation recorded by video, or attend before another medical practitioner who would allow the examination to be video recorded. The Defendant declined both of these options and denied all further benefits to the Plaintiff pursuant to the insurance policy.

Nielsen J. referred to Rule 5.41, which provides that the parties may agree that the mental or physical condition of a person is at issue in an action and may also agree on a health care professional to conduct a medical examination; and Rule 5.42(1)(b), which stipulates that unless otherwise ordered by the Court, a person who is to be the subject of a medical examination by a health care professional may elect to video tape the medical examination.

The Plaintiff argued that Rule 5.42(1)(b) should be incorporated into the insurance policy. Nielsen J. stated that pursuant to Rule 1.1, the Rules govern the practice and procedure in relation to actions in the Court of Queen’s Bench. The Defendant sought the medical examination in the context of the Plaintiff’s Claim pursuant to the insurance policy, and not in the context of litigation before the Court. Nielsen J. noted that there was no evidence to indicate that the Defendant and Plaintiff had intended the Rules to apply to their contractual arrangement. In the result, Nielsen J. held that the Defendant had not breached the terms of the insurance policy when it discontinued coverage for further benefits pursuant to the policy.

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