Acts and Regulations

Rule-36 - MEDICAL EXAMINATION OF PARTIES

Table of contents
Full text
Current to 1 January 2024
DISCOVERY
RULE 36
MEDICAL EXAMINATION OF PARTIES
36.01Definition
For the purpose of this rule, medical practitioner means a person licenced to practice medicine or dentistry in the jurisdiction where he practices and includes a medical or dental officer of the Canadian Armed Forces.
36.02Who May be Examined
(1)Where the physical or mental condition of a party to an action is in issue, the court may order him to submit to a physical or mental examination, or both.
(2)Where the initial allegation concerning the physical or mental condition of a party to an action is made in the pleading of an adverse party, an order under paragraph (1) may only be made where the court is satisfied that
(a) there is real substance to the allegation, and
(b) the allegation is relevant to a material issue in the action.
36.03Who May Examine
Where, under this rule, the court orders a physical or mental examination of a party, it shall be conducted by one or more medical practitioners appointed by the court for that purpose.
36.04Order for Examination
(1)An order for a physical or mental examination of a party shall be made only on motion of an adverse party.
(2)The order shall specify the time, place and scope of the examination, and shall name the medical practitioner or practitioners by whom it is to be made.
(3)Unless ordered otherwise, the party obtaining the order shall be liable initially for the expense of the examination but such expense may be included in fixing or assessing the costs awarded to that party.
(4)The court may order a second examination or further examinations on such terms as to costs or otherwise as may be just.
36.05Scope of Examination
(1)Where examined under this rule, a party shall answer any questions put to him by the medical practitioner which are relevant to the purpose of the examination.
(2)Where authorized to do so by an order made under this rule, the examining medical practitioner may
(a) examine hospital records and X-rays previously made or taken in respect of the party being examined,
(b) have samples taken of blood and other body fluids and cause analyses to be made, and
(c) cause any other test recognized by medical science to be made including, without restricting the generality of the foregoing, X-rays, electrocardiograms, electroencephalograms and psychological tests; but a party shall not be required to submit to any test which is unduly painful or potentially dangerous.
(3)Unless ordered otherwise, the party to be examined shall deliver to the party obtaining the order, at least 2 days before the day appointed for the examination, a copy of every report made by every medical practitioner who has treated the party to be examined in respect of the mental or physical condition in issue, and the party obtaining the order shall make a copy of every such report available to the medical practitioner appointed to make the examination, before the examination begins.
36.06Who May Attend on Examination
No person other than the party being examined, the examining medical practitioner, his nurse or assistant and a medical practitioner nominated by the party being examined, if any, shall be present at the examination of a party under this rule, unless the court orders otherwise.
36.07Medical Reports
After conducting an examination under this rule, the examining medical practitioner shall prepare a written report setting out his observations, including the results of any tests made and his conclusions therefrom as well as his diagnosis and prognosis, and shall forthwith deliver the report to the party obtaining the order. Upon receipt, the party obtaining the order shall serve a copy of the report on every other party to the action.
36.08Penalty for Failure to Comply
Where a party fails to comply with this rule or with any order made pursuant thereto, he shall be liable, if a plaintiff, to have his action dismissed or, if a defendant, to have his Statement of Defence struck out.
36.09Examination by Consent
This rule applies to any physical or mental examination conducted by consent of the parties in writing, except to the extent that it has been modified by the parties.