Independent Medical Examinations (IMEs) in Wills & Estate Litigation

In a recent Wills & Estate Litigation case: McCulloch v Nociar, 2021 BCSC 1328, the Defendant applied to send the Plaintiff to an independent medical examination (“IME”) with respect to her “alleged allergies, disabilities, and other medical conditions which she alleges requires her to live in specialty housing, in particular a suite (the “Suite”) on property in Surrey, B.C. (the “Property”) owned by the applicant, and to allow access to that Suite to Total Safety Services Inc. to report on the character and conditions which establish it as specialty housing”.

The Court noted the rarity of IME applications being brought in cases outside of personal injury law.

BREAKING NEWS:

Plaintiff ordered to an IME in a Wills & Estates Litigation case.

The plaintiff and the applicant in the case are both children of John Nociar Sr., who died in January 2014; they are half-siblings. The plaintiff has lived in the Suite since July 1, 2009, with no requirement to pay any rent or costs.

Upon the Deceased’s passing and as a result of the right of survivorship - based on a 2008 Joint Tenancy agreement - the Property automatically vested to the applicant in 2014.

The applicant described the 2008 Transfer as a gift to reflect that over the years he attended to the maintenance and improvement of the Property, and paid the Deceased approximately $69,000 to cover the capital gains that John Sr. had to pay from the 2008 Transfer. In addition, further capital gains were paid by him upon John Sr.’s passing when the remaining 1/2 interest vested under the right of survivorship.

The plaintiff and the defendants, John Nociar Jr. and Ronald Warren Nociar, are the three children of John Sr. and a previous spouse (“Annie”). Annie owned a 40-acre parcel of land in Langley, and died intestate (aka without a Will) on May 4, 2014, leaving her estate, primarily those lands valued at approximately $2,000,000, to her three children, including the plaintiff.

The applicant deposes that in his discussions with John Sr. regarding estate matters, John Sr. made it clear that in deciding to make the 2008 Transfer John Sr. took into account the fact that his other children would be equal beneficiaries to Annie’s estate, which he considered to be sizable. The subject cause of action is one of various proceedings that have now been brought as between the plaintiff and the applicant, and others, in respect of John Sr.’s estate, the Property and the rights of the plaintiff to occupy the Suite.

On August 27, 2014, the plaintiff commenced these proceedings by Notice of Civil Claim seeking, among other things, an Order that the 2008 Transfer be set aside and the Property returned to the estate of John Sr., and that she had a life estate in the Property. The applicant filed a counterclaim on November 13, 2015 seeking, among other things, an order for possession of the Property.

On October 7, 2015, the plaintiff filed a petition under action no. S174579 (the “Petition Proceedings”) against the applicant and his wife, as well as the City of Surrey, BC Hydro and the Fraser Health Authority. In the Petition Proceedings, the plaintiff deposed that the Suite had been built for her because of her disabilities, specifically auto-immune disease, and allergies to common chemicals, such as those used in manufacturing construction materials.

 The plaintiff has not tendered any expert reports as of yet. While it was not specifically stated by plaintiff’s counsel, I understand the theory of the plaintiff’s case to be that it is not necessary as the plaintiff’s position is that Mr. Justice Schultes found, as a matter of fact, that she was disabled when he rendered his decision.  As, their primary argument will be that the issue is res judicata.

Ultimately, the Court ordered that the Plaintiff attend the IME based upon the facts alleged in the Plaintiff’s own Notice of Civil Claim pertaining to her health and well-being, among other things.

In reviewing the law, Master Robertson noted as follows:

Applicable Law

[31]      These applications are brought pursuant to Rule 7-6 of the Supreme Court Civil Rules which provide for both a medical examination and an inspection and preservation of property:

Order for medical examination

(1)        If the physical or mental condition of a person is in issue in an action, the court may order that the person submit to examination by a medical practitioner or other qualified person, and if the court makes an order under this subrule, the court may also make

(a)        an order respecting any expenses connected with the examination, and

(b)        an order that the result of the examination be put in writing and that copies be made available to interested parties of record.

…

Questions by examiner

(3)        A person who is making an examination under this rule may ask any relevant question concerning the medical condition or history of the person being examined.

Order for inspection and preservation of property

(4)        If the court considers it necessary or expedient for the purpose of obtaining full information or evidence, it may

(a)        order the production, inspection and preservation of any property, and

(b)        authorize

(i)         samples to be taken or observations to be made of the property, or

(ii)        experiments to be conducted on or with the property.

Entry on land or building

(5)        For the purpose of enabling an order under this rule to be carried out, the court may authorize a person to enter on any land or building.

[32]      With respect to the medical examination the leading case and that relied upon by the applicant is Tran v. Abbott, 2018 BCCA 365 (“Tran”) in which the Court of Appeal noted:

[17]            Rule 7‑6 is a rule of discovery. It is designed to balance the plaintiff’s advantage in obtaining expert opinions, by providing the defendant with access to the plaintiff for such prior to trial.

[18]        The rule is consistent with the “modern philosophy” that procedural rules should work to promote settlement before trial, and to ensure the speedy and inexpensive determination of each dispute on its merits.

[33]      The Court further noted that the making of an order under Rule 7-6 is discretionary, with the Court considering the effect of refusing an examination on the conduct of the trial (at para. 40).

[34]      The Court has considered Tran more recently in Anderson v. Steffen, 2021 BCSC 252, confirming that Tran remains the starting point of such an application (at para. 32).

[35]      For the most part, the cases considering Tran have centered around a request for a second or further medical examination. That is not the case here.

[36]      The applicant bears the burden of establishing that the examination is necessary:  Stocker v. Osei-Appiah, 2015 BCSC 2312; Gennings v. Lum, 2020 BCSC 1196.  While those decisions discuss Rule 7-6(1), the same burden applies to 7-6(4) concerning property inspections.

[37]      With respect to Rule 7-6(4), this Court noted in 1034026 B.C. Ltd. v. D.A. Lennox Developments Ltd., 2018 BCSC 155 (”D.A. Lennox”) as follows:

[16]        There is very little jurisprudence addressing the application of this rule. At the very least, the applicant must demonstrate that the inspection is necessary and expedient if the results will be of assistance to the court (presumably the trial judge, here): Martel v. Canada (Attorney General), [2004] B.C.J. No. 2065 (S.C.).

[38]      In D.A. Lennox, Master Bouck found that the onus had not been met to grant as broad an order as being sought, saying that the request for a geotechnical inspection amounted to a “fishing expedition”. As such, she narrowed the scope.

[39]      In that case, the issue in dispute was whether the defendants had trespassed on the plaintiff’s property to create an embankment and road access, with that work resulting in potential damage to the plaintiff’s property including from a redirection or interruption of the flow of a natural watercourse. The plaintiff had obtained a geotechnical engineering report based on a viewing of the slope. In the application, the plaintiff was seeking access, and soil samples. Master Bouck noted that nowhere in the affidavit material did the plaintiff depose to having suffered any actual damage to its property. As such, the order made was to allow access to a defined area, but not the carte blanche access which had been sought.

[40]      Ultimately, making an Order under Rule 7-6, whether Subrule (1) or (4) is at the discretion of the court.