Koerner v. Capital Health Authority, 2011 ABQB 191

Court of Queen ’ s Bench of Alberta Citation: Koerner v. Capital Health Authority, 2011 ABQB 191 Date: 20110322 Docket: 0803 01510 Registry: Edmonton Between: Lisa Koerner Plaintiff/Respondent - and - Capital Health Authority, Royal Alexander Hospital, University of Alberta Hospital, Grey Nuns Community Hospital, Missericordia Community Hospital, Dr. Walter Yakimets, Dr. Todd Mcmullen, Dr. Doug Davey, Dr. D. San Agustin, Dr. Kata Matic, Dr. G.

Sandha Defendants/Applicants Corrected judgment: A corrigendum was issued on March 30, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice D.L. Shelley _______________________________________________________ I This Application [ 1 ] This application is the latest of many I have heard in the course of case management of this action.

[ 2 ] The Defendants apply for: a. a declaration that Ms. Koerner is in contempt, b. an order dismissing her action, and c. costs of this application on a solicitor and own client basis, payable immediately. [ 3 ] If I strike Ms. Koerner’s claim, the Defendants also ask for an order requiring her to seek leave to commence any new action in relation to these matters so as to avoid re-litigating them. [ 4 ] The grounds for the Defendants’ application are that Ms.

Koerner has failed to meet the deadlines set by Court Order for attending to complete the Defendants’ Questioning of her and for producing psychological and psychiatric records. II Background [ 5 ] Ms. Koerner’s Statement of Claim is for damages arising from alleged malpractice by the Defendant Doctors and Hospitals. In general, Ms. Koerner's Claim alleges the following: 1. Dr. Yakimets and Dr. McMullen failed to remove her gallbladder during a gallbladder surgery on October 11, 2006 and to obtain proper consents to perform the surgery; 2. The University of Alberta Hospital, Dr. Agustin, Dr. Matic, Dr.

Sandha and Dr. Davey refused to provide treatment or testing for the personal injuries she suffered as a result of the failed gallbladder removal; 3. University of Alberta Hospital, Dr. Agustin, Grey Nuns Hospital, Royal Alexandra Hospital, and Dr. Matic refused to read MRIs relating to the failed gallbladder removal obtained by Ms. Koerner at American Hospitals; 4. Royal Alexandra Hospital and Dr. Bailey refused to provide a biopsy of cysts or a blood transfusion due to elevated bilirubin and a blood disorder; 5.

University of Alberta Hospital, Grey Nuns Hospital, and the Royal Alexandra Hospital were liable for misdiagnoses relating to elevated liver enzymes and globular red blood cells and other undisclosed particulars; 6. Defamatory statements made by Dr. Davey describing the Plaintiff's need for psychiatric help. [ 6 ] The Claim initially named the “Queen in right of Alberta as represented by the Minister of Health” as a party, but I dismissed the action against the Crown on June 19, 2009. Ms.

Koerner appealed that order, but her appeal was struck as abandoned. [ 7 ] Striking a claim on the basis of contempt is an extreme remedy. Therefore it is important to understand the background of this case management file. Ms. Koerner claims that she is extremely ill and must seek health care outside Canada because the Canadian medical system has failed to assist her. Her claims raise serious allegations of malpractice and negligence.

She says she would like to have a lawyer but is self-represented because she alleges that the doctors have convinced the lawyers not to act for her. [ 8 ] I note that on the date originally set for this application, Ms. Koerner apparently collapsed at the Law Courts immediately before the application was to proceed. She was taken to the Royal Alexandra Hospital, and I adjourned the application for two days. She was released from the Hospital after a few hours and appeared at the re-scheduled application. The Hospital’s chart notes were provided to me.

[ 9 ] As a self-represented litigant, Ms. Koerner has struggled with the litigation process. The Court has endeavoured to explain appropriate procedures and practice, both in case management meetings, in correspondence, and in written decisions.

She has been told on numerous occasions that, if she disagrees with a court order, it must be appealed; that affidavits must contain facts in either her personal knowledge or based on information she has received and that she believes; that exhibits in affidavits must be appropriately identified; that printed internet pages do not constitute expert evidence; and that medical evidence in support of an application for an adjournment (because she repeatedly, usually on the eve of a scheduled application or case management meeting, submits she is too sick to continue) must consist of more than partial copies of unattributed lab results. [ 10 ] Ms.

Koerner’s affidavits, notices of motion, and oral argument use extreme and emotional language, are often disparaging of the Defendants and Defendants’ counsel, and have often reflected a lack of respect for this Court. [ 11 ] Her affidavits make broad allegations of fact without support. For example, Ms. Koerner’s affidavit sworn August 27, 2010 stated: 2. Justice Shelley has endangered my life for over two years. ... 5. August 12/2010 letter from Provincial Health minister Fraudulently Stating he can’t intervene in committees. The Charter gives him Complete control over provincial matters.

The Power and Authority Act see Exhibit C ... Dr. Martin Cole report stating surgery options but this option is never offered to me. I am left to die. Report of Dr GC Andrew confirming DIVERTICULUM. Diverticulum disease can be life threatening. May 16/2006 report Dr. G D Sterling trivial insignificant tricuspid insufficiency. IS IS LIFE THREATENING AND NEEDED TO BE MONITORED DEFINITION OF Tricuspid Insufficiency” is a leakage of blood backwards through the tricuspid valve each time the right ventricle contracts. How can this be trivial? These Alberta doctors are frightening! ECG NOV 19/07CONFIRMS Heart disease.

See Exhibit H. Attached to this affidavit were a number of lab reports and letters from doctors to referring doctors. The letters indicate either normal or insignificant results and the lab results, in the absence of an expert

interpretation, have no foundation. [ 12 ] There have been several notable applications in this action. These include: 2010 ABQB 518 : Ms. Koerner applied for an order for “out of country tests, cancer treatments and surgeries,” alleging that Alberta had failed to provide her with adequate medical care and that the Court should order someone to pay for her out-of-country health care expenses. She alleged among other things that: a. The Health Minister has illegally washed his hands of her life, and that he has the authority to override any decision regarding Alberta health care; b.

The Out-of-Country Health Services Committee (OOCHSC) refused to read her appeal (of its decision to refuse to pay for out of country health care);

c. Her right to life has been taken from her and she has been left to die several times and other countries had the humanity to save her life; d. What the medical system has done to her is beyond cruel, and she has been denied pain killers for four years by doctors; e. She has a life threatening blood disorder, and her liver and kidneys are now in failure because she never received blood transfusions; f.

While in the hospital she repeatedly asked for pain killers and was refused; I refused the applications since neither the OOCHSC nor or the Minister of Health and Wellness were parties to this action, and because, even if her motion was tangentially related to the original action, she was effectively seeking damages before her case was proven at trial. [ 13 ] 2010 ABQB 557 : The Defendants applied to have Ms.

Koerner found in contempt for failing to complete her examinations for discovery (as the process was then called) by the deadline, a deadline which had already been extended, with only two of the nine desired examinations completed. Ms. Koerner submitted that she was physically unable to continue discoveries. I noted that Ms. Koerner had been told on numerous occasions in the course of case management that, if she was too ill to meet timelines, she was required to provide evidence of illness.

In her affidavit, she included such things as: miscellaneous portions of medical test reports and medical images, without any information as to the source of these documents or expert medical evidence interpreting them; assorted pages from the internet describing various ailments and illnesses; and copies of newspaper, magazine and journal articles regarding various health related issues. In my reasons, I reiterated what she had been told on other occasions: that these documents do not constitute admissible evidence and that expert evidence is required to establish that she is too ill to proceed. Ms.

Koerner continued to argue that she was entitled to payment of out of country health expenses and, that if I did not order them, I should step down as case management justice; that I had allowed counsel for the defendant doctors to “blatantly perjure herself”; that I should appoint a lawyer to represent her while she was outside Canada seeking medical care; that it was not a breach of a court order if the court order in question is unfair or the person in breach is not able to comply; and that I, as case management justice, was in contempt of Court. I found that Ms.

Koerner was in contempt for failing to comply with the Court’s Orders, but noted that there were a range of penalties available for civil contempt. I did not strike Ms. Koerner’s Statement of Claim, noting that her examination of the Defendants was not crucial to the Defendants’ ability to defend. Instead, I ordered that Ms. Koerner’s examinations were deemed complete and that she had forgone the right to examine any other of the Defendant doctors or employees of the Defendant hospitals.

I also ordered solicitor-client costs for the application. [ 14 ] 2010 ABQB 590 : The Defendants applied (under then Rule 217) to have Ms. Koerner attend for an independent medical examination (IME) by a psychiatrist and a psychologist. The Defendants also applied for an order requiring Ms. Koerner to produce records related to her treatment by psychologists, psychiatrists, and other mental health professionals. The Defendants argued that the pleadings and the records produced to date placed Ms. Koerner’s mental health in issue. They relied on an expert report by a psychiatrist, who had reviewed Ms.

Koerner’s records and concluded that there was a significant probability that Ms. Koerner suffered from a psychiatric disorder. Ms. Koerner argued that it was “illegal” for the Defendants to have shown their expert her records, that the Court cannot force her to see a doctor she is not comfortable with (citing the Mental Health Act ), that her intelligence is completely irrelevant, and that tests by psychologists are “completely illegal” and “completely unethical”. She accused the Defendants of “fraudulence” and said that all the records were lies in a corrupt medical system.

She attempted to rely on a report by the Privacy Commissioner to say that she had no psychiatric condition. In regards to the production of mental health records, Ms. Koerner argued that she had never received a diagnosis of mental illness and therefore her mental health records were irrelevant; that psychologists cannot legally make a diagnosis; and that she had never seen some of the doctors mentioned in the records.

I determined that a psychiatric assessment was necessary to determine, among other things, whether somatization was a cause of Ms.Koerner’s reported symptoms. It would also be relevant to Ms. Koerner’s claim that she has been defamed. I further concluded that therewas nothing inappropriate in releasing the records to the Defendants’ expert; and that the Privacy Commissioner’s report did notdetermine that Ms. Koerner did not have a psychiatric condition, only that there were no psychiatric reports in the records of the Childand Family Services Agency (Area 6).

I also noted that the Court has an obligation to ensure that all relevant evidence is available fortrial and that it has the authority to order an independent medical examination. If Ms. Koerner chose not to attend the IME, the Courtmight then dismiss her claim because the Defendants would then be denied the opportunity to answer and defend the claims againstthem. I also ordered that, since Ms. Koerner’s psychiatric status was central to the action, the records of all previous consultations bypsychiatrists and psychologists were relevant and material and therefore producible. I ordered Ms.

Koerner to request production of thecomplete records of her attendances with the psychiatrists and psychologists, and to produce either the requests for the records, or therecords themselves if she had them in her possession, within one week of my decision. [15] 2010 ABQB 753: Ms. Koerner applied for an order “dismissing” my previous order regarding service of documents; an order “dismissing” my order toprovide “irrelevance reports” (the psychiatric and psychological reports ordered to be produced); an order that the IME assessments bevideotaped; and an order to change the order of testing. Ms.

Koerner argued that the service Order[1] placed an unfair burden on her when she left the country for medical care, that a court couldgrant an adjournment until further notice, and that the action should not proceed until she returns. I refused the application to vary theorder regarding service, noting that her remedy, if she was unhappy with the order, was to appeal. I further noted that Ms. Koerner hadbeen told on numerous occasions that an adjournment for ill health is not automatic, and that she must apply for it and support theapplication with appropriate evidence.

I noted that such evidence could include an affidavit “sworn by a doctor who is or is proposing totreat her, confirming the timing of treatment and where it will be done, and providing a date when she will have completed the proposedtreatment and be available to continue with her obligation to pursue her action.” Ms. Koerner argued that the psychiatrists’ and psychologists’ reports I ordered produced were irrelevant, would violate her children’sprivacy rights, and was in violation of Rule 40 (Alberta Rules of Court, Alta. Reg. 390/1968). I noted that Ms.

Koerner had not appealedthe Order and that I had no jurisdiction to reverse the Order, but that, with the Defendants’ consent, the Order could be varied to permitredaction of personal information regarding her children. I ordered that that any record that contained references to her children besubmitted to the Court within a specified time frame for any necessary redaction before forwarding to the Defendants. Ms. Koerner directed much of her argument towards the alleged bias of the psychiatrist who was going to conduct the IME, because shefelt he improperly relied on a report of another psychiatrist.

She suggested that this report would not stand up at trial because it wasinconsistent, contradictory, and raised a somatoform diagnosis without a factual basis. She further suggested that expert reports arebiassed because they are selected by the parties. I noted that question of the validity of expert’s reports was a question for trial, and thatat trial she would be able to introduce her own expert witnesses, raise concerns about the validity and fairness of tests, and concernsabout the actual interview with the psychiatrist. In regards to video-taping, I had granted Ms.

Koerner’s application to have her interview with the psychiatrist video-taped; she alsowished to have the psychological testing by the psychologist video-taped and wanted to be able to expand upon her answers and explainthem. She cited the decision in R. v.

Mohan, (SCC), [1994] 2 S.C.R. 9, to challenge the testing by the psychologist,suggesting that the case is intended: “... to protect people from the basic evaluation of the norm... if you want to dispute the other party's expert witness, you can apply to thecourts for this hearing before trial and dispute, and um... this is one of the tests that is very commonly disputed, this MMPI test andtherefore the courts, Mohan was put in place, like I said by the one quote I used, I know for a fact, it was definitely on the website, says"Mohan kept the door open to novel science, rejecting the general acceptance" so basically they're giving you the opportunity to statethis test should not be included and because it is evaluated on the norm and again what doctor can state what is the norm.".

The Respondents noted that there were copyright issues and concerns about variations to the administration of the tests invalidating theresults. The Defendants further indicated that they were not opposed to Ms. Koerner having an interview with the psychologist in

addition to the standardized testing. I sought further submissions on this issue. [ 16 ] 2010 ABQB 761 : This was a continuation of the previous application and addressed the questions of whether the psychologist’s tests could be administered orally, whether Ms. Koerner could expand upon her answers in the standardised testing, whether the tests could be video-taped, and whether the raw data from the testing could be released to Ms. Koerner. Ms. Koerner submitted an affidavit that consisted primarily of argument, and which attached a number of documents that were not sourced and were incomplete.

On the basis of this affidavit, she attempted to attack the validity of one of the tests proposed for the IME, the Minnesota Multiphasic Personality Inventory (MMPI), saying that it has "high fake bad scores", is evaluated by the "norm" which fluctuates according to personal views and economic status, and that two Florida judges have barred the test. She further argues that the courts are obligated to "go by proven facts, not scientific opinion" and that many people are wrongfully diagnosed because psychologists can evaluate any way they want to.

She further argued that only relevant information should ever be disclosed, and that it is illegal for the defence to use another doctor’s report as evidence, and that only the expert has a right to view her personal reports, not the defence. She argued that the defence is not entitled to any previous reports. She further asserted that "All Albertans are allowed all Psychologists reports, accrual test by law," and that a psychologist cannot prove information on hearsay. If she is not given copies of the tests, she will obtain them through the Privacy Commissioner.

She accused the psychologist of being “fraudulent” when he said that the MMPI was copyrighted, because she was able to find a copy on the internet. I noted that Ms. Koerner’s concerns about the reliability of the MMPI were not relevant at this point in the proceedings, and that the Order to undergo testing had not been appealed and remained in effect. Relying on the psychologists expert evidence filed by the Defendants, I concluded that the test procedures and protocols must be followed to ensure the test’s validity and that therefore the administration of the tests could not be video-taped.

Further, raw date and test protocols may only be released to a Registered Neuropsychologist or Registered Psychologist. In light of the Defendants’ agreement that there be an additional interview, I indicated Ms. Koerner could explain her answers to the psychologist and that that interview could be video-taped. III This Application A. The Defendants’ submissions [ 17 ] The basis of the Defendants’ application for a Declaration that Ms.

Koerner is in civil contempt is that she has: a. refused, absent medical evidence, to attend the completion of her Questioning as per this Court’s Order that Questioning be completed by December 15, 2010.

That deadline was extended by consent of the parties to January 26, 2011; b. refused or otherwise failed to comply with this Court’s Order that she produce to the Court copies of all records of her prior attendances with psychologists and psychiatrists by, at the latest, December 6, 2010. [ 18 ] The Defendants noted that I had ordered the Defendants to complete Examinations for Discovery (now referred to as Questioning) within three months after the Plaintiff completed her examination of the Defendants’ witnesses. I had also ordered that Ms. Koerner was deemed to have completed her examinations on August 5, 2010.

The parties consented to an Order that Questioning of Ms. Koerner be completed by December 15, 2010, and the parties scheduled dates by consent to complete Questioning within this time period. [ 19 ] At the November 29, 2010 Questioning, Ms. Koerner advised counsel for the Defendants that she would not be able to attend the dates set for Questioning during the week of December 13, 2010, because she expected to be leaving the country and would be unavailable for medical reasons. Therefore the parties agreed, at Ms. Koerner’s request, to

schedule dates during the week of January 24, 2011 to complete Questioning. The Defendants expressly indicated that they would not consent to any further extensions unless Ms.

Koerner provided evidence that she was unable to attend for medical reasons. This agreement and limitation appear on the record at the conclusion of the November 29, 2010 Questioning. [ 20 ] On January 19, 2011, Ms. Koerner sent counsel for the Hospital Defendants an email advising that she would not be attending the scheduled Questioning, saying she was critically ill. Ms. Koerner’s initial email states (attached as an Exhibit in the Affidavit of the Defendant, Dr. Yakimets), in part: I am unable to attend the up coming discoveries. I have again attempted medical help in Alberta and was abused and lied to.

I am now researching other options. I am nearly bedridden. My heart is in critical shape. There is a very good possibility I may have a heart attack. Today I passed out in my bathroom and I am not willing to have that happen in your office. My country is denying me medical treatment I am entitled to by law and therefore I am forced to reach out to other countries. This abuse will come out in court. [ 21 ] A further email continues: I want to inform you that I did infact want to continue with Case Management but am unable to. I want my Justice more than anyone can imagine.

I was thinking the next doctor I approach in Alberta would not have been a monster! Unfortunately for me he was, no surprise. He refused to review my reports... Yes please get the courts direction, since Justice Shelley has made it clear, she can’t force any doctor to help me. She can rule out of country evaluation, at the expense of Alberta. If I die I would not want to be any of you including Justice Shelley. I hope that Justice Shelley does the right thing this time, before I die. [ 22 ] Ms. Koerner indicated in her email that she would be open to continuing the Questioning by teleconference.

Counsel for the Defendant Hospitals was not prepared to agree to a teleconference because it would not be feasible, given how document intensive the Questioning was. Counsel for the Defendant Hospitals asked for medical evidence to support Ms. Koerner’s request for a further extension. Ms. Koerner’s email response was: I don’t have any new reports or, consults because I don’t have the money. No I don’t want an indefinite adjournment. I want to live. I can’t force any doctor to help me but God help them when they don’t!

If Justice Shelley would have had humanity she would have appointed me a lawyer until, I was able to continue. [ 23 ] The Defendants further note that by Order granted September 1, 2010, Ms. Koerner was directed to produce the following: a. complete records of her attendances with psychologists Dr. J.A. Hammond, Dr. Richard Abidin, and Dr. Theodore Milton (the Psychological Records) to counsel for the Defendants no later than September 22, 2010;

b. complete records of her attendances with psychiatrists, Dr. Klaus Gendemann, Dr. Penelope Sullivan, and Dr. Yakov Shapiro (the Psychiatric Records) to counsel for the Defendants no later than September 22, 2010; and c. complete records of any other attendances with psychiatrists, psychologists or other mental health professionals (further Mental Health Records). [ 24 ] A further Order (granted November 29, 2010) directed that the Psychiatric records and the Psychological records that identified Ms.

Koerner’s children be produced to the Court no later than December 6, 2010, so that the Court could redact any references that identified Ms. Koerner’s children. [ 25 ] Ms. Koerner has never produced complete, unaltered copies of the Psychiatric, Psychological, or Further Mental Health records. [ 26 ] In oral argument, Defendants’ counsel pointed out that, even at this late date, when document production has been ostensibly completed, further documents, that the Defendants have never seen, have been included in Ms. Koerner’s most recent affidavit. For example, Exhibit H to Ms.

Koerner’s affidavit includes a letter from Dr. Zhu, a hematologist, describing an attendance by Ms. Koerner. In Questioning, Ms. Koerner had denied seeing a hematologist. The Defendants argue that they have no confidence that all relevant records have been produced, and that they have been prejudiced by this most recent evidence of non-production. [ 27 ] The Defendants further note that the expert report by Dr. Urness, the psychiatrist who undertook the IME, cannot be completed until Questioning is complete because his report will be based, in part, on the transcripts of the Questioning. B.

The Plaintiff’s submissions [ 28 ] Ms. Koerner filed a an application in response to the Defendants’, entitled: APPLICATION FOR CIVIL CONTEMPT UNJUSTIFIED. PLAINTIFF COMPLIED WITH ALL ORDERS APPLICATION FOR ALBERTA HEALTH TO PAY FOR EMERGENCY MEDICAL TREATMENTS AND MEDICAL TESTS. [ 29 ] In her application, Ms. Koerner seeks a declaration that she is not in contempt.

The application goes on to say that she is critically ill; that two Alberta doctors have lied by saying that her blood was fine, when there are many medical records that indicate that her blood is not fine and further investigations are warranted; that no Alberta doctor will be honest; and that she has thalassemia, which United States hospitals recognize as serious, but Canada has not. She further indicates that she is prepared to continue Questioning, but is too weak to stand or sit for long periods of time without falling or blacking out.

She is not in contempt because she offered another solution - teleconferencing. [ 30 ] Ms. Koerner goes on to ask the Court to postpone discoveries to a later date or order a phone conference. She says that she must go out of country for medical help, and again asks the Court to order out of country medical help.

She argues that there is sufficient medical evidence to substantiate her allegations and that her affidavit filed in support documents her attempts to reach out to Canadian doctors who say she must be referred to them by a family physician, while American doctors will see her without a referral. [ 31 ] As grounds for her application, Ms. Koerner says that she has two or more life threatening conditions. She asserts that she has thalassemia, which causes organ failure, and pancytopenia, which results in bone marrow failure and death. In addition, Ms.

Koerner says she has a stenosised bile duct filled with undiagnosed cysts, gall stone blockage, chronic pancreatitis, jaundice, hip problems, ear problems (including temporary deafness at times), mild scoliosis, several gastrointestinal problems, reflux, irritable bowel syndrome, esophageal tumor, large stomach mass, digestive problems, bruising, constant infections, breast cancer, pelvic cancer, liver cancer, pancreatic cancer, kidney failure, a liver working at 30% capacity, Fanconi anemia, tumors, scattered osteomas, factors indicating multiple myeloma, as well as other symptoms.

She insists that every time she has asked for an adjournment, she has provided medical evidence of her condition. She contends:

Court orders must be followed unless there is a justified reason. If a person is physically unable to proceed until a later date, that is their constitutional right. [ 32 ] Ms. Koerner’s application further states that she is not in contempt for refusing to produce her mental health records, noting that at the last case management meeting the defence stated on the record that it was not necessary to produce the records until a later date. She further argues that she has produced all her diagnoses to the defence in discoveries, and that the law requires all physicians to protect their clients’ privacy.

Moreover, she asserts that, since neither of the Defendants’ counsel are doctors, they have no entitlement to her personal information. She indicated that she authorized Dr. Mrazik, the psychologist who conducted the IME testing, to obtain any educational or medical records he needed, and he is the only person other than the trial judge who has a “legal right to invade my [her] privacy”. [ 33 ] Ms. Koerner’s affidavit in support of her application attaches a number of exhibits. I will review them in detail as they are similar to the kinds of attachments she has included in other Affidavits.

Exhibit A: an appointment confirmation with Dr. Sawisky and a letter of complaint by Ms. Koerner to “his superiors”. The complaint letter is lengthy and includes a complaint that Dr. Sawisky said all her lab work was normal, when doctors in Mexico and at Mount Sinai Hospital in New York made diagnoses of serious illnesses. The affidavit does not include either the Mexican or Mount Sinai diagnoses.

Other complaints include that she told him she also had kidney failure, but he said her kidneys were ‘great”; she told him she had a small bowel blockage and he replied that she could not have or she “would be on the floor screaming in pain”; she told him that she said that she had cysts on her bile duct which could be malignant, and he replied that it is not necessary to remove cysts and they might not be malignant. Exhibit B: Email to and response from Seattle Cancer Care Alliance that it does not have financial assistance programs for patients outside of Washington state.

Exhibit C: email to Massachusetts General Hospital seeking medical assistance; Ms. Koerner deposed that the hospital never responded. Exhibit D: Email to American Cancer Society, who responded that financial assistance is usually dependent upon a three month residency in the United States. Exhibit E: Email to Fanconi Canada, in which Ms. Koerner suggests that she has pancytopenia, which she says raises a strong possibility that she has Fanconi Anemia. She asks where she can be tested for the disorder.

The Exhibit has a handwritten response, apparently purporting to be the email response from the President of Fanconi Canada. According to Ms. Koerner this response was that if she was unable to get the necessary expertise from a hospital in Calgary, she could approach the Vancouver General Hospital or the Princess Margaret Hospital in Toronto. Ms. Koerner deposes that in the past she attended at Vancouver General and was assaulted, and further that she cannot afford to go back and forth to Vancouver. Exhibit F: Email to Dr.

Yigal Dror, Associate Professor of Paediatrics, Division of Hematology/Oncology , The Hospital for Sick Children, the University of Toronto. Ms. Koerner’s email states, among other things: “I have many serious health problems...I have passed 240 gallstones and as a result my Bile Duct is stenosised and filled with undiagnosed cysts...I have chronic pancreatitis and jaundice...I have confirmed Thalassemia trait, although I was told if you have an absence of Iron, this will obstruct a diagnosis of Thalassemia beta.

I had a bone marrow biopsy which confirmed pancytopenia.” There follows a lengthy list of other symptoms and complaints. Dr. Dror responded by email that if she wanted to be tested, she would have to contact the doctor who is treating her. Mr. Koerner complains in her affidavit that Dr. Dror should not have turned her away and should have tested her. Exhibit G: CT Scan Report from Diagnostic Imaging at the University of Alberta hospital. The report lists as the Reason for Exam: “METASTIC TUMOR CA STAGING TUMORS ON KIDNEY, LIVER ESOPHAGUS BOWELS, OVARY”.

The findings in the report state that the chest and abdomen are normal. Ms. Koerner’s affidavit states that CT scans from other countries “show tangible evidence” and that “Either the Alberta radiologist is incompetent or the scanner at the university hospital is faulty.” Exhibit H: Letter from Dr. Zhu (referred to earlier in these reasons) in which Dr. Zhu noted an “Antithrombin level “slightly above the normal cutoff”, which the doctor concludes is “clinically not significant.” The report goes on to say that the physical exam revealed no abnormalities. Ms.

Koerner, in her affidavit, insists that this constitutes “negligence at its best” because the doctor ignored the blood

elevation. She goes on to refer to a report from the Mount Sinai Hospital, also included in the exhibit, a note in which states: “Hgb A2 levels may be decreased in iron deficiency states”. A further note in the report states: “This may obscure the diagnosis of beta thalassemia”. Ms. Koerner then refers to a report from Ramathibodi Hospital that she says states that she has 0% Iron and this could have obstructed the correct diagnosis of Thalassemia Beta. [ 34 ] In her oral submissions, Ms. Koerner said that she had already provided all the records in her possession to the Defendants. Further, Dr.

Zhu’s report could not be relied on because she told Ms. Koerner that she could not have sickle cell anemia because she was white and refused to re-test her blood. She indicated that she was doing the best she could, but was critically ill and waiting for someone to save her life. [ 35 ] Ms.

Koerner went on to indicate that she would have problems providing out of country records, such as those from Holland, because they only send them by registered mail and, if she is too ill to pick them up or is out of country, Canada Post will just send them back. [ 36 ] As to the Psychiatric and Psychological Records, she authorized Dr. Mrazik to obtain her records. Further, she insisted that she has a right to keep her personal information private by law, and the Defendants are not entitled to it. She argued further that there is no Dr. Milton, and therefore she cannot get a record from him. [ 37 ] Ms.

Koerner noted that she has proved in her affidavits that she is critically ill. In particular she notes that hospitals in other countries have admitted her, and that this proves her illness. [ 38 ] Ms. Koerner indicated that her time at the Royal Alexandra Hospital following her collapse on the day originally scheduled for this application was “horrific”, as she spent four hours in the waiting room with paralysed legs. While I will limit my reliance on the Hospital’s charts, in the absence of expert evidence interpreting them, I do note that the chart only refers to leg weakness, not paralysis.

She indicated that it was scientifically impossible for her blood reports to come back normal (which is what is indicated in the Hospital Records), since she is in liver and kidney failure. Therefore, she concluded the fact that reports came back normal is proof of fraud. She said that she pleaded with the doctors for a full body CT scan, but the doctor refused. She was upset that the woman in the bed next to her received an ultra-sound that day, but she had to return the next day for one. IV Analysis A. Civil Contempt Principles [ 39 ] R. 10.52 of the new Rules ( Alberta Rules Of Court , Alta.

Reg. 124/2010) provides: 10.52

(3) A judge may declare a person to be in civil contempt of Court if (

a) the person, without reasonable excuse, (

i) does not comply with an order, other than an order to pay money, that has been served in accordance with the rules for service of commencement documents or of which the person has actual knowledge, [ 40 ] I discussed the nature and purpose of the Court’s civil contempt powers in 2010 ABQB 557 (at paras. 30-32 ) dealing with the old Rules, which provided: 703

(1) Every person is in civil contempt who (

a) fails, without adequate excuse, to obey any order of the court, other than an order for the payment of money

[ 41 ] In my view, there is no appreciable difference between the new and old Rules dealing with civil contempt, at least as it relates to the failure to obey a Court Order. [ 42 ] At para. 30 of 2010 ABQB 557 , I noted that the purpose of a court’s civil contempt power is to achieve compliance with court orders and to uphold the court’s authority (Dreco Services Ltd. v. Wenzel , 2004 ABQB 517 at para. 66 ; S.W. v. K.T. , [2005] A.J. No. 479 (A.B.Q.B.) at para. 17 ; McInroy v. Burnstad , 2010 ABQB 375 at para. 11 .

I noted: The central idea is that courts have a right to protect the dignity of their own proceedings, and they are entitled to discipline any conduct that they feel tarnishes, undermines, or impedes the court’s role in society as administrator of justice. The Court of Queen’s Bench has an inherent power to find a person in contempt of court if they feel the proceedings are being disrespected. [ 43 ] The requirements for finding civil contempt were outlined in Point on Bow Development Ltd. v.

William Kelly & Sons Plumbing Contractors Ltd. , 2006 ABQB 775 , 405 A.R. 1, where Rooke J. (as he then was) noted (at para. 19) that there must be: 1. An existing requirement of the court; 2. Notice of the requirement to the person alleged to be in contempt; and 3. An intentional act (or failure to act) that constitutes a breach of the requirement. This should be without adequate excuse, in accordance with Rule 703(1)(a). [ 44 ] A judge must be satisfied beyond a reasonable doubt that each of these elements have been met in order to make a finding of contempt.

Moreover, the decision to find a party in contempt is within the court’s discretion ( Metropolitan Life Insurance Co. v. Hover , 1999 ABCA 123 at para. 10 ). [ 45 ] I noted in 2010 ABQB 557 (at para. 35 ) that lack of compliance is often coupled with a lack of respect for the proceedings, but intention to disrespect the court is not required for a court to find contempt. [ 46 ] R. 10.53 of the Rules of Court outlines the penalties available to a court for civil contempt. It is essentially the same as the penalties set out in Rule 704 of the old Rules.

The Rule provides: 10.53(1) Every person declared to be in civil contempt of Court is liable to any one or more of the following penalties or sanctions in the discretion of a judge: (

a) imprisonment until the person has purged the person’s contempt; (

b) imprisonment for not more than 2 years;

c) a fine and, in default of paying the fine, imprisonment for not more than 6 months; (

d) if the person is a party to an action, application or proceeding, an order that (

i) all or part of a commencement document, affidavit or pleading be struck out,

(ii) an action or an application be stayed, (iii) a claim, action, defence, application or proceeding be dismissed, or judgment be entered or an order be made, or (iv) a record or evidence be prohibited from being used or entered in an application, proceeding or at trial.

(2) The Court may also make a costs award against a person declared to be in civil contempt of Court.

(3) If a person declared to be in civil contempt of Court purges the person’s contempt, the Court may waive or suspend any penalty or sanction.

(4) The judge who imposed a penalty or sanction for civil contempt may, on notice to the person concerned, increase, vary or remit the penalty or sanction. B. Is Ms. Koerner in contempt? [ 47 ] There is no doubt that Ms. Koerner is in contempt. This Court’s Orders clearly set out that Questioning was to be completed by December 15, 2010. The Defendants, at Ms. Koerner’s request, agreed to extend the time to the week of January 24, 2011. I do not fault the Defendants for this breach. They were attempting to accommodate Ms. Koerner and avoid the necessity of returning to Court.

Review of the Questioning transcript for December 13, 2010, makes it clear that the parties placed on the record their agreement to extend the Defendants’ time to complete Questioning until January 26, 2011, “subject to any medical evidence provided by Ms. Koerner that she requires a longer extension.” [ 48 ] Ms. Koerner did not provide any medical evidence to the Defendants to justify a longer (or any) extension. This is confirmed in her email to Defendants’ counsel, wherein she advised that she did not have “any new reports or consults.” Nor is the evidence provided in Ms.

Koerner’s affidavit sufficient to establish that she was unable to continue the Questioning. Ms. Koerner has been told in correspondence, in court, and in written reasons by this Court, what constitutes adequate evidence to establish that she is too ill to continue.

For example, in 2010 ABQB 753 , this Court noted that appropriate evidence could include (at para. 10): ... an affidavit sworn by a doctor who is or is proposing to treat her, confirming the timing of treatment and where it will be done, and providing a date when she will have completed the proposed treatment and be available to continue with her obligation to pursue her action. [ 49 ] Ms. Koerner knew that what she had provided was not sufficient. In the previous contempt application, 2010 ABQB 557 , I noted (at paras. 24-25): In response to the Applicants’ submissions, Ms.

Koerner said that she was physically unable to continue. Ms. Koerner has repeatedly asserted that her health has prevented her from complying, but despite repeatedly having been informed by this Court that she must provide evidence that she is too ill to meet her deadlines, she has not done so.

She has, however, filed affidavits that attach as exhibits: a. miscellaneous portions of medical tests and medical images without adequate information as to the source of these documents, or evidence identifying the documents, or expert medical evidence interpreting them; b. assorted pages from the internet describing various ailments and illnesses; and

c. copies of newspaper, magazine and journal articles regarding various health related issues. I must reiterate for Ms. Koerner that these are not properly admissible or relevant evidence of anything if they are not appropriately attached as exhibits with a declaration as to their source, if they are not complete, and if they are not accompanied by expert evidence that interprets them. [ 50 ] I reiterate again - lab reports, without expert evidence to interpret them, are not proof of illness. As Ms. Koerner has repeatedly noted, I am not a doctor and I am not qualified to interpret lab reports.

Moreover, incomplete and partial records have questionable weight, and internet pages are not admissible as expert evidence of symptomology and diagnosis. [ 51 ] I note also that many of the exhibits Ms. Koerner relied on indicate that she is, in fact, well and that her test results are normal. Ms. Koerner does not believe these are accurate, but she has not provided any admissible evidence that contradicts these reports. [ 52 ] The evidence is even stronger in relation to the failure to produce the Psychiatric Records and Psychological Records. Ms.

Koerner relies on Defendants’ counsel’s statement in the November 25, 2010 case management meeting. At that time, I had not yet issued my reasons in relation to production of records that referenced Ms. Koerner’s children ( 2010 ABQB 753 , Reasons released November 29, 2010). In that context, Ms. Roberts, counsel for the Defendant doctors, noted that Ms. Koerner had not yet provided the Psychological and Psychiatric Records and was still maintaining her opposition to doing so. Ms. Roberts noted (Transcript, p. 13, ll. 32- 40): Ms.

Roberts: ...She’s currently in contempt of that portion of your order, but we have asked you to give us some advice as to whether you think you are the appropriate person – The Court: That will be dealt with in the order that I am hopeful will be ready by tomorrow, depending on what happens today. Ms. Roberts: So perhaps we’ll just set that aside for the moment. [ 53 ] It is clear from the entire context of this exchange that Ms.

Roberts was not suggesting that the records need not be produced, but that the Defendants would not pursue contempt proceedings until after my decision dealing with the records that referenced Ms. Koerner’s children. [ 54 ] Further, Ms. Koerner continued to make the same arguments in this application as she had in the previous two applications dealing with production of these records – that the Defence had no right to see her personal information, that she had a constitutional right to not produce them, and that there was no Dr. Milton. I rejected those arguments and she did not appeal that decision.

The Order clearly required her to produce those records that referenced her children to the Court for redaction by December 6, 2010, and all other records were to be produced or sought within seven days of that September 15 decision – September 22, 2010. She did not do so. [ 55 ] Ms. Koerner’s assertion that she has produced all her diagnoses to the Defence in the course of Questioning is irrelevant. The Order was not to provide diagnoses, but to provide all records of attendances with specific psychiatrists and psychologists and any other mental health professionals.

While all physicians are required to protect their clients’ privacy, plaintiffs whose claims raise serious questions regarding mental health must provide consent for their release and produce these kinds of records so that the Defence can fully defend against the action. If plaintiffs refuse, they run the risk that their claim will be dismissed. [ 56 ] Further, there is no merit in the argument that, since neither of the Defendants’ counsel are doctors, they have no entitlement to her personal information. Nor is there any basis for refusing to obey the Order because she authorized Dr.

Mrazik to obtain any educational or medical records he might require in connection with his testing. C. What is the appropriate remedy?

[57] The Defendants ask that I dismiss Ms. Koerner’s action. A number of cases have addressed when it is appropriate to dismissan action as a remedy for civil contempt. In Jervis v. Nendze, 2002 ABQB 673, 318 A.R. 293, Veit J. refused to strike out the plaintiff’sclaim because the disclosure was not crucial to the defendant’s ability to defend. In Michel v.

Lafrentz, 1998 ABCA 231, 219 A.R. 192,the Court of Appeal refused to strike the appeal, because the failure was the result of inadvertence, misunderstanding, or simple neglect,and because by the time of the application, the contempt had been purged. [58] Here, the Defendants cannot properly defend the action if they cannot complete their Questioning of Ms. Koerner. I agreewith the Defendants that in this case teleconferencing is not an adequate alternative. There are many documents that Ms. Koerner will bequestioned about. Ms.

Koerner has not numbered her production, and the process of identifying which documents are being referred towould be unduly cumbersome and time-consuming. [59] I am most concerned by Ms. Koerner’s failure to provide (or request records where she is not in possession of them) thePsychiatric and Psychological Records. The Defendants are asserting that Ms. Koerner’s damages are not caused by their actions, but bya mental illness. These records are essential to pursuing that defence. Ms. Koerner’s continuing response is that she does not have toproduce them because she has a privacy interest in the records.

This is not a case of inadvertence, misunderstanding, or simple neglect.She has repeatedly refused to produce them despite this Court’s Orders. [60] This is not the first time that Ms. Koerner has failed to comply with Court Orders in this action. Despite numerousopportunities to produce records and to attend to the Questioning of the Defendants, she repeatedly failed to do so. In the latter instance Ideclined to strike her claim. Her failure to Question the Defendants did not impede their ability to defend the action. Instead, I terminatedMs. Koerner’s ability to

schedule any further Questioning of the Defendants or their representatives. However, Ms. Koerner’s continuingfailure to fully produce relevant records and to allow the Defendants to complete their Questioning of her does seriously impede theirability to defend the action. [61] I therefore dismiss the Plaintiff’s action against all the Defendants. D. Out-of-country health funding [62] As this action has now been dismissed, it is not necessary to address Ms. Koerner’s application that the Court order AlbertaHealth to pay for out-of-country health care.

In any event, I have already refused a similar application (2010 ABQB 518), becauseAlberta, Alberta Health, and the Minister of Health are not parties to this action. E. Costs [63] The Defendants have sought solicitor and own-client costs (otherwise known as full indemnification costs), rather thansolicitor-client costs. [64] Lee J., in Georgia Pacific Canada Inc. v. International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths,Forgers and Helpers, Local Lodge No.

D513, 1999 ABQB 182, 243 A.R. 219, pointed out that solicitor-client costs are routinelyawarded in civil contempt proceedings, but are not punishment for the contempt (at para. 226): As stated in Zelazo (No. 1), supra, at page 333, "[t]he costs merely serve to indemnify the . . . plaintiff for expenses which he hasincurred coming to court.

They are not really punishment as such." This same point is made again in Zelazo v Masson (No. 2) (1992) (AB KB), 129 A.R. 388 (Q.B.), at pages 391 and 392, where it is noted that "[n]ot to award such costs would be topunish the plaintiff". [65] Solicitor and own-client costs are, however, different and are awarded only in exceptional circumstances. In Jackson v.

Trimac Industries Ltd. (1993), (AB KB), 8 Alta. L.R. (3d) 403, (AB KB), 138 A.R. 161 (QB) Hutchinson J. noted (at p. 417 of Alta. L.R.): In order for costs to be awarded on an indemnity basis or even on a solicitor-client basis, as opposed to a party-party basis the court mustconclude that the case fits within the parameters of a rare and exceptional or unusual case.

Examples from the above cited cases resultingin the identification of a rare and exceptional case include 1. circumstances constituting blameworthiness in the conduct of the litigation by that party; 2. cases in which justice can only be done by a complete indemnification for costs; 3. where there is evidence that the plaintiff did something to hinder, delay or confuse the litigation, where there was no serious issueof fact or law which required these lengthy, expensive proceedings, where the positively misconducting party was "contemptuous" of theaggrieved party in forcing that aggrieved party to exhaust legal proceedings to obtain that which was obviously his; 4. an attempt to deceive the court and defeat justice, an attempt to delay, deceive and defeat justice, a requirement imposed on theplaintiff to prove facts that should have been admitted, thus prolonging the trial, unnecessary adjournments, concealing materialdocuments from the plaintiffs and failing to produce material documents in a timely fashion; 5. where the defendants were guilty of positive misconduct, where others should be deterred from like conduct and the defendantsshould be penalized beyond the ordinary order of costs; 6. defendants found to be acting fraudulently and in breach of trust; 7. the defendants' fraudulent conduct in inducing a breach of contract and in presenting a deceptive statement of accounts to thecourt at trial, 8. fraudulent conduct; 9. an attempt to delay or hinder proceedings, an attempt to deceive or defeat justice, fraud or untrue or scandalous charges. (Citations omitted) [66] Kenny J., in Belzil v.

Bain, 2002 ABQB 388, commented favourably on this

summary, noting that the list was not exhaustive,but provided a good framework (at para. 12). [67] I do not find that Ms. Koerner’s conduct of this action falls at the extreme end of this framework. She was not deliberatelydelaying the action; she wanted to get to trial. Nor did she attempt to deceive the Court. She was undoubtedly misguided in what sheconsidered to be the law and often exaggerated and embellished her statements to the Court, but she was not acting fraudulently.

I do notfind that this is an appropriate situation in which to award solicitor and own-client costs, and instead order solicitor-client costs. F. Order to seek leave before commencing another action [68] At this time, I decline to grant the Defendants’ application for an order requiring Ms. Koerner to seek leave of this Courtbefore commencing any new action in relation to these matters. The Defendants raised this request in oral argument. It was not includedin their Application materials and Ms. Koerner had no notice of it. [69] Given Ms.

Koerner’s history of attempting to re-litigate the same matters before this Court, the Defendants’ request is notunreasonable. However, an application for this type of remedy ought to be brought on proper notice. V. Conclusion [70] I dismiss Ms. Koerner’s claim against all the Defendants and order that she pay solicitor-client costs immediately.

[ 71 ] The Defendants are at liberty to bring an application for an Order requiring Ms. Koerner to seek leave of this Court before commencing any new action in relation to matters already dealt with in this action, upon providing appropriate notice to her. Heard on the 18 th day of February, 2011. Dated at the City of Edmonton, Alberta this 21 st day of March, 2011. D.L. Shelley J.C.Q.B.A. Appearances: Lisa Koerner Self-represented Plaintiff S. Roberts J. Janz for the Defendants _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Madam Justice D.L.

Shelley _______________________________________________________ _______________________________________________________ The year in the citation line has been changed from 2010 to 2011 as follows: Koerner v. Capital Health Authority, 2011 ABQB 191

[1] The Order provided that Ms. Koerner must advise the Defendants in advance if she was leaving the country and provide the name and phone number of a contact person in the Edmonton region. The Defendants could then serve Ms. Koerner by leaving a voice mail at that phone number advising that documents were available for pick-up; this would constitute adequate service.