The Court of Appeal addressed the test to be applied under Rule 5.44(5) which permits the Court, on application, to impose limits on an examination by a health care professional.

The Action related to a claim by the minor Plaintiff/Respondent for damages arising from permanent physical injury which included loss of vocational potential, general shock and nervous upset. Defendants/Appellants sought an Order under Rule 5.41 requiring the minor Respondent to undergo a vocational assessment with a psychologist. A psychologist is a health care professional as defined by the Rules. The Respondent opposed the Application. The Chambers Judge granted the Order requiring the minor Respondent to attend for an examination but imposed restrictions on: the length of the examination (7 hours), the length of the interview the psychologist could conduct on the minor Respondent (1 hour), on certain questions the psychologist proposed to ask, and on the number of tests which could be conducted. The Chambers Judge further ordered that there could be no standard psychological tests unless agreed to by the Respondent.

The Court of Appeal noted that a basic principle underlying the analysis was that “Courts should be able to rely on the professional integrity and responsibilities of health care professionals, absent evidence which should override such trust”.

The Court of Appeal held that the appropriate standard the party seeking to limit the examination had to meet, was demonstrating “a compelling reason for limiting the test”. The Panel noted that a compelling reason could include, but was not limited to, risk of injury. This burden is both legal and evidential and is borne by the party seeking to limit the examination.

A compelling reason to limit the examination will exist if the reason for limiting the examination “(a) significantly overrides the objectives of full pre-trial discovery, and (b) does not unfairly prevent the [party seeking the examination] from responding to the claim”.

In the present case, the Court of Appeal found that the Respondent failed to present the required evidence to demonstrate a compelling reason to limit the examination, relying solely on the cross-examination transcript of the psychologist which itself did not set out any compelling reason to limit the examination. The Respondent argued that the psychologist was equivocal about whether they would ask the minor a certain question, which indicated this information was therefore unnecessary and intrusive. The Panel noted that the Court must rely on the health care professional’s expertise and judgment as to whether the information is necessary.

The Court of Appeal noted that Rule 5.42 provides for other mechanisms for a party to protect themselves when undergoing an examination, outside of seeking limits to an examination. Those mechanisms include including nominating their own health care professional to be present, videotaping and/or making a word-for-word recording of the examination.

The Appeal was allowed.