Defence medical examinations are a key procedural mechanism to ensure fairness by enabling defendants to respond meaningfully to the plaintiff’s claims.
Defendants in personal injury actions in Ontario have a recognized right to obtain medical examinations of the plaintiff, under certain conditions. Recent caselaw provides clarity on the scope, limits, and justifications for such examinations, and the role of prejudice and trial fairness in establishing whether further examinations are warranted.
Statutory Framework and Legal Test
Section 105(2) of the Courts of Justice Act permits the Court to order a party to undergo a physical or mental examination where their condition is in issue. Rule 33.02 supports this authority and allows for further or second examinations on just terms, including cost allocations.
The purpose of defence medical examinations is to “level the playing field”. These examinations are not merely procedural, but rather a core principle of ensuring trial fairness by allowing the defendant to respond to the allegations raised within the claim.[1] [2] Denying the defence an opportunity to address the claim allegations could result in expert testimony going unchallenged.[3]
The Ontario Superior Court has formalized the three-part legal test known as the Godin Test for compelling an examination :
- Necessity of the examination;
- Fairness in the context of the proceeding; and
- Avoidance of prejudice to the opposing party.[4]
The Requirement for Leave
It may be argued that defendants require leave under Rule 48.04 to bring such motions once the action is set down for trial. However, the Courts have clarified that leave is not required where the defendant was not the party to set the action down: a defendant’s completion of the certification form does not waive substantive rights to seek further medicals.
Even where leave might arguably be required, the Court has held that motions for further medicals should be evaluated on their merits if doing so is in the interest of justice.[5] [6]For example, if a plaintiff has refused to attend defence medical examinations, this may constitute a change in circumstances that would justify further examination requests.[7]
Application of the Factors
The moving defendants must establish that the requested examination is likely to produce information relevant to the action.[8] The factor of necessity may be satisfied when a plaintiff has served an expert report from a specialist whose opinion goes to key issues such as pain, prognosis, or limitations in which case a corresponding assessment by a defence expert may be considered warranted and the request therefore legitimate.[9]
The Court has also emphasized that there is no fixed limit on the number of examinations permitted. Rather, it is the nature of the injuries and the complexity of the issues to be adjudicated at trial that determines the defendant’s entitlement to expert assessment.[10] [11]
It may also be determined necessary to conduct examinations from experts in different fields to address distinct aspects of the claim: where a plaintiff has raised both physical and psychological claims, the Court has supported the defendant’s right to corresponding assessment, even by multiple specialists.[12]
Further, a defendant is not bound to mirror the plaintiff’s expert selection: Courts have consistently rejected the notion that plaintiffs can dictate how the defence presents its case.[13] [14]
Defendants must demonstrate that their requests are not motivated by delay or prejudice or simply corroborating an existing medical opinion. The Court is certainly alert to tactics that could postpone trial dates unnecessarily. The Court will also consider whether the request could pose an undue burden on the plaintiff in light of the number of examinations already conducted by the defence.
It appears that timing of the trial is central to the analysis of prejudice: when defence examinations are scheduled well in advance of the trial, the Courts are unlikely to find delay or prejudice.[15] Further, where a plaintiff has not yet attended any defence medical assessments, arguments of undue burden or overreach are unlikely to succeed.[16] Ultimately, the Court’s concern appears to be with proportionality.
Conclusion
Ontario Courts have consistently affirmed that trial fairness is the paramount consideration. The right of a defendant to test the plaintiff’s medical evidence through its own experts is a substantive right, not a procedural luxury. Without such assessments, the defence could be seriously prejudiced, leaving the plaintiff’s evidence effectively unchallenged.
However, as recent cases make clear, there are limits: the Courts will continue to weigh each motion on its own merits, guided by the principles of necessity, fairness, and proportionality. Provided the request is legitimate and does not jeopardize trial timelines, the right to a defence medical examination remains a cornerstone of procedural fairness in civil litigation, weighed against any legitimate prejudice to the Plaintiff, to ensure that both parties can fully and fairly present their case.
[1] Jeffrey v. Baker, 2010 ONSC 5620 at para. 12.
[2] Girao v. Cunningham, 2010 ONSC 4607, [2010] O.J. No. 3642, at para. 18
[3] Pulford v. Clarke, 2022 ONSC 1908 at para 7.
[4] Godin v. Goncalves, 2014 ONSC 7297 at para. 29.
[5] Louis v. Poitras, 2020 ONSC 5301, at para. 22
[6] McGlinchey v. MacKay, 2025 ONSC 1046 at para 15
[7] Moore v Jacob 2022 ONSC 10 at para 8.
[8] Lakdawala v Lipton, 2022 ONSC 7381 at para. 69.
[9] Lakdawala v Lipton, 2022 ONSC 7381 at para. 71.
[10] Moore v Jacob 2022 ONSC 10 at para 20 & 24.
[11] D’Eon v. Hosseini, 2022 ONSC 4397 at para 15.
[12] Girao v. Cunningham, 2010 ONSC 4607 at paras. 23-24
[13] Moore v Jacob 2022 ONSC 10 at para 20
[14] D’Eon v. Hosseini, 2022 ONSC 4397 at para 15.
[15] D’Eon v. Hosseini, 2022 ONSC 4397 at para 39.
[16] McGlinchey v. MacKay, 2025 ONSC 1046 at para 28.