In Bishop v Minichiello, the Court ordered a Litigation Guardian to attend an independent medical exam with the Plaintiff. Although there is nothing in the Rules of Court addressing this issue, the Court invoked its’ “inherent jurisdiction”.
[17] The silence of Rule 7-6 on the question of ordering the litigation guardian to attend an independent medical examination, does not, in and of itself, preclude the making of such an order, if it otherwise makes sense to do so in order to advance the speedy, just and inexpensive determination of the proceeding on its merits.
[18] Whether such an order is appropriate requires the court to weigh the plaintiff’s objection against the defendant’s rationale for the request…
[19] I should note that the problem arises almost entirely due to the ambiguity created by Charlotte Bishop’s status as a litigation guardian. The confusion is reflected in what has happened so far with Examinations for Discovery, where both Charlotte Bishop, as litigation guardian, and Brandon Bishop, himself, have been examined. This accords with the practice respecting infants, but not with the practice respecting persons described in Rule 7-2(9) as “mentally incompetent”. Rules 7-2(8) and (9) read as follows:
(8) If a party to be examined for discovery is an infant, the infant, his or her guardian and his or her litigation guardian may be examined for discovery.
(9) If a party to be examined for discovery is a mentally incompetent person, his or her litigation guardian and his or her committee may be examined for discovery, but the mentally incompetent person must not be examined without leave of the court.
[20] The plaintiff’s objection to the attendance of the litigation guardian is primarily that a conversation between the litigation guardian and the examining physician creates a form of statement that is not controlled within the process and that might well lead to conflict or confusion later, if the guardian and the Doctor do not agree as to what was said.
[21] The defendant’s point is, primarily, that in a case where the defence is guessing as to the mental status of the plaintiff, it would be prudent to have the person who knows him best, and who is also the litigation guardian, available to answer questions about his condition, especially where it is suggested that, among the effects of the injuries suffered in the accident, is a lack of insight or appreciation on Brandon Bishop’s part of the harm that has occurred.
[23] I think that as long as the case continues to be conducted by Charlotte Bishop as litigation guardian, the implication that, for reasons related to his injuries Brandon Bishop is unable to conduct the litigation will remain, along with the implication that talking to him will not yield the whole story. The plaintiff’s concerns about possible confusion do not outweigh the defendant’s interest in the appointed examiners getting accurate and complete information. Accordingly, Charlotte Bishop, as litigation guardian, must attend and answer the questions posed by the examiners as they require.
