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Scope of Rule 53.03 > Use of Accident Benefits Experts in Your Tort Lawsuit

After being involved in an Ontario car accident, you will likely apply for Accident Benefits under our no-fault regime.  You may claim for income replacement benefits, medical and rehabilitation benefits (i.e. physiotherapy, chiropractic treatment, massage, acupuncture, prescription medications etc), attendant care, re-training or vocational assessment benefits or other benefits.

After you apply for the benefit, your Accident Benefits insurer may seek to test or evaluate your request, by sending you to be examined at an independent medical examination (i.e. IME) by a medical practitioner of their choosing.  This can happen repeatedly, even under the new Accident Benefits regime introduced on September 1, 2010, depending on the type of benefit you are applying for and the severity of your injury.

If you continue to suffer injury and loss, you may decide to start a lawsuit to sue for damages arising from the accident.  This would include your income loss, future care and health expenses, pain and suffering damages, housekeeping and home maintenance damages and more.

Question:  Can these medical experts, hired by your Accident Benefits carrier, be used against you by the tort defendant in your subsequent tort lawsuit?  That is, usually by the other driver who caused this accident?

The answer, after the recent 2010 Ontario Superior Court of Justice case of Beasley v. Barrand (2010) 101 O.R. (3d) 452 is “maybe”.

In the Beasley case, Mr. Justice Moore dealt with three Accident Benefits independent medical expert reports commissioned seven years prior and before the introduction of the new Rule 53.03.

Given the requirements of experts under Rule 53.03 and the inability of the Accident Benefits medical experts to comply with this Rule, all three medical doctors were not permitted to give expert testimony that the Trial of the tort lawsuit.

It is important to note that the defendant made some attempt to bring the three medical experts into compliance with Rule 53.03 but that the positive signed statements of each of the doctors, that they complied with Rule 53.03, was confusing in that multiple and/or inconsistent sets of statements were signed by the doctors.

Further, the Court invited the defendant to file new reports from these medical experts explaining their compliance with Rule 53.03, which was not undertaken.  It is unknown from the decision whether the defence made application to have any of these three Accident Benefits medical experts to conduct a further medical examination for the tort insurer – thereby submitting a new report which would have complied with Rule 53.03.

As background, readers may wish to review:

Gregory Chang
Toronto Insurance Lawyer