On December 21, 2009, Justice Brooker heard an application, Abbas v. Menhem, for an Order deeming the Plaintiff’s injury a “minor injury” due to his refusal to attend a Certified Medical Examination (“CME”) without reasonable excuse. In support of his application, counsel for the defence relied upon the Minor Injury Regulation (“Regulation”), specifically section 10(3) which states:

10(3) If the claimant, without reasonable excuse,

(a) fails to attend an assessment for which notice has been given under section 9 or 11(3),

(b) refuses to answer any relevant questions of the certified examiner about (i) the claimant’s medical condition or medical history, or (ii) matters referred to in section 1(j)(i) that relate to the claimant,

(c) fails to authorize the release of any relevant diagnostic, treatment or care information in respect of the claimant pursuant to subsection (2)(a), or

(d) in any other way obstructs the certified examiner’s assessment, the claimant’s injury shall be considered to be a minor injury.

Plaintiff's counsel defended his client’s non attendance by stating that the Plaintiff suffered a significant and permanent injury which removed him from the cap and as such the Regulation did not apply. The logic behind this argument is that the Regulation only applies to minor injuries, if there is medical information to establish that one or more of the injuries is excluded from the cap, then the Plaintiff is not compelled to attend an examination.

Justice Brooker held that to accept the Plaintiff’s position would be to enable Plaintiffs to circumvent the Regulation through finding a doctor to opine that the Plaintiff’s injury is exempt from the definition of a “minor injury”. However, despite this finding, Justice Brooker failed to grant the relief sought by the Defendant, mainly an order compelling the Plaintiff to attend a CME and deeming the Plaintiff’s injury as minor for his failure to attend. The justification for Justice Brooker's decision was that he determined that the Plaintiff had a reasonable excuse for his non-attendance, his excuse being that the legal test for attendance at a CME was uncertain. Given the wording of s.10(3) he further determined the an order compelling attendance was unnecessary.

Justice Brooker seems to suggest that the Defence can once again request that the Plaintiff attend a CME, if he fails to do so, then another application could be brought to determine whether failure to attend would result in his injury being deemed “minor”.

While this is the first decision that has considered section 10 of the Regulation and it re-enforces the procedure set out in sections 8 through 13 of the Regulation for obtaining and conducting a CME, it does not actually make any determination with regard to the issues raised.

It is likely that either this decision will be appealed or a similar application will be brought if the Plaintiff once again refuses to attend a CME. McLennan Ross will attempt to keep you advised as matters continue to develop.