"No Mulligans"- Challenges Faced By Insurers Requesting Multiple Medical Examinations In Personal Injury Cases

Where the physical or mental condition of a party to a proceeding is at issue, a medical examination may be granted by a court of competent jurisdiction. This examination is generally regarded as a defendant's right in personal injury cases. However, there are a number of considerations which affect the availability of multiple examinations for any given case.

Where multiple examinations are requested, the primary consideration will be fairness, and it will be critical to establishing the necessary evidentiary basis supporting the defendant's argument that fairness requires a second or further examination.

Notably, a recent decision of Justice Nicholson of the Ontario Superior Court ^{has highlighted the conflicting considerations applicable to this right and cautioned legal practitioners against seeking "a second kick at the can."}