Lawlor v. Pennell, 2012 NLCA 32

In 2004, the plaintiff, Pennell, suffered soft tissue injuries as the result of a motor vehicle accident with the defendant, Lawlor. She commenced an action seeking damages for her physical injuries and “ongoing pain, suffering and distress” but later amended her claim to allege that private investigators hired by the Lawlors had harassed and been aggressive to her, causing “severe emotional trauma” and harm to Pennell and her unborn child.

Since the accident, a number of Pennell’s treating physicians had suggested her mental health may be complicating her recovery and recommended that she seek consultation with a psychiatrist or a psychologist. Therefore, the Lawlors requested that she submit to a mental examination, which Pennell refused. They brought a rule 34.01 application requesting an order that Pennell submit to an examination by a designated psychiatrist. The applications judge considered the competing rights, the plaintiff’s right to privacy and the defendant’s right to know the case against them. He gave significant weight to the fact that Pennell had undergone several medical examinations already by consent, finding that the balance was in her favour. He then found that her mental condition was not put “in issue”, as required by rule 34.01.

The Court of Appeal upheld the ruling but clarified the test. An applications judge must first, as a threshold matter, decide whether mental health is in issue. Then they may move on to consider the competing rights. The Court of Appeal noted that mental examinations will be ordered less frequently than physical because they are intrusive and require doctor-patient trust, which is difficult to establish with an unfamiliar psychiatrist chosen by opposing counsel.