Henderson (Estate) v. Arnett, 2011 ABQB 198

Court of Queen ’ s Bench of Alberta Citation: Henderson (Estate) v. Arnett, 2011 ABQB 198 Date: 20110323 Docket: 0403 23225 Registry: Edmonton Between: Grace Henderson, Administrator of the Estate of Warren John Henderson, Deceased, Grace Henderson, and Her Majesty the Queen In Right of Alberta Respondents (Plaintiffs) - and - Dr. Gordon Arnett, Dr. Dennis Y. Wong, Dr. Ahmed S. Hussain, Dr. Alhassen Asiri, Dr. Amar Suchak, RAH Dr. Unknown, Leduc Dr.

Unknown, Capital Health owning and operating a Hospital known as the Leduc Community Hospital, Capital Health owning and operating a Hospital known as the Royal Alexandra Hospital, RAH Nurse Jane Doe, Leduc Nurse Jane Doe and RAH Employee Applicants (Defendants) _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M.A. Binder _______________________________________________________

Background [ 1 ] The Defendants in this medical negligence action (Applicants) apply for an order for removal from the court file of the Plaintiffs’ seven expert Substances of Opinion. [ 2 ] The Plaintiffs (Respondents) filed the Substances of Opinion in 2009 and served the same reports upon counsel for the Defendants, pursuant to Rule 218.1(1) of the old Alberta Rules of Court . They intend to call the authors of these reports as witnesses at trial, and therefore have not filed Notices pursuant to Rule 218.1(2) of the old Alberta Rules of Court or Rule 5.39 (1) of the new Alberta Rules of Court .

Issue [ 3 ] The parties frame the issue as follows: Is it improper for a party to have filed an Expert Report without the consent of an opposing party, and if so, should the offending filed Expert Report be purged from the Court file by Order? Parties’ Positions [ 4 ] The Applicants argue that the information upon which the Plaintiffs’ experts have relied has been obtained in part through the discovery processes associated with the litigation.

They submit that without the consent of all parties to an action, expert reports must not be filed with the court, as the Rules require only that such reports be served on the parties. Since the Respondents have not filed or served notice of an intention to enter the expert reports as evidence without calling the authors as witnesses, the Applicants have not yet had to communicate any objection to the contents of the reports pursuant to Rule 5.39(2) or otherwise. [ 5 ] The Applicants state that the Respondents have tainted the court file with “evidence” which has not yet been ruled admissible.

They submit that such filing amounts to an abuse of process and renders Rules such as 5.39 and 5.40 meaningless. They note that the new Rules have also dispensed with the requirement for filing an Affidavit of Records. They request that the Court cure this “contravention, noncompliance or irregularity” under Rule 1.5. The Applicants also opine that the filing may result in or breach the implied undertaking of confidentiality regarding information obtained through discoveries. [ 6 ] The Respondents submit that filing and serving expert reports is permitted by the Rules, and is routine.

They point to Civil Practice Note No. 4 , in effect at the time of the filings, which prescribed a Certificate of Readiness which asks regarding expert reports: 6(f) “Copies filed for Courts use? Yes___ No___”. Further, filing the Substances of Opinion does not render them evidence at trial, and would not taint the file as only admissible evidence will be relied on during motions and trial. The purpose of old Rule 218.1 was to avoid surprise expert opinions at trial.

The courts have typically encouraged counsel to frame the issues in dispute for the court well in advance of trial and to let the record reflect who the expert witnesses will be at trial in order to prevent conflicts. Any rebuttal opinion may also be filed. [ 7 ] The Respondents acknowledge that Rule 5.32 now precludes the filing of affidavits of records, transcripts of questioning, etc., but argue that the lack of a similar specific prohibition on the filing of Substances of Opinion suggests the practice of filing them is not offensive.

Filing and serving of expert reports long before applying for a trial date is not an abuse of process; rather, it enhances the opponent’s opportunity to obtain rebuttal opinion. If the Applicants’ position is that this information should not be disclosed on the record due to the implied undertaking, then the proper remedy would be a sealing order, which is not justified in the circumstances. Finally, the Respondents submit that filing the Substances of Opinion is consistent with Foundational Rule 1.2(2)(

d) to “communicate honestly, openly and in a timely way”, and Rule 1.2(2)(a) “to identify the real issues in dispute”. By refusing to allow Substances of Opinion to be placed on the court file, especially where expert opinions are at the centre of the dispute, counsel frustrates rather than facilitates the purpose and intent of the Rules.

Analysis [ 8 ] Rule 1.2 sets out the purpose and intention of the Rules, including to identify the real issues in dispute, facilitate the quickest means of resolving a claim at the least expense, encourage the parties to resolve the claim themselves as early in the process as practicable, and oblige the parties to communicate honestly, openly and in a timely way.

Parties are to refrain from filing applications or taking proceedings that do not further the purpose and intention of these rules, and are to use publicly funded court resources effectively. [ 9 ] Rule 5.32, under Division 1 - How Information Is Disclosed , provides that documents under Division 1 must not be filed. These include the transcript of questioning, including exhibits, an affidavit of records, affidavits and answers to written questions, and correcting affidavits.

They are not be put before the court except during an application, proceeding or at trial, and may be filed and put before the court only as permitted by the Rules . [ 10 ] Old Rule 212(4) also prohibited filing the examination for discovery transcript. This position reflects the fact that discovery is a private process, and that invasion of privacy should generally be limited to the level of disclosure necessary to satisfy that purpose of the civil action: Juman v.

Doucette , 2008 SCC 8 , [2008] 1 S.C.R. 157. [ 11 ] It is interesting to note that the Alberta Law Reform Institute in its Documentary Discovery and Examination for Discovery - Consultation Memorandum No. 12.2 at paras. 44 and 45 considered whether the affidavit of records must be filed with the clerk, noting that the affidavit of records is rarely in issue, and filing it simply results in a waste of scarce storage space. The ALRI recommended that it not be filed unless an issue arises as to its contents. [ 12 ] Rules 5.34 to 5.40, in Division 2 - Experts and Expert Reports deal with expert reports.

They contemplate service between parties, but no mention is made of filing such reports with the court. [ 13 ] Finally, in Division 4 - Filed Documents, Subdivision 2 - Form and Contents of Affidavits and Exhibits , Rule 13.26 refers to exhibits “filed with the court clerk in a hearing or trial”. [ 14 ] In my view, the new Rules reflect a policy of efficiency and economy. Restricting filing to essentials promotes those goals. Unnecessary filing wastes court resources in terms of clerk’s time and storage space. Counsel should communicate honestly, openly and in a timely way amongst themselves.

Expert reports should only become part of the court record by consent or with the approval of the court. Counsel should advise the trial coordinators of the names of the experts at the time of setting down the matter for trial, in order to avoid conflicts between experts and the judge hearing the matter. Conclusion [ 15 ] Expert reports should only become part of the court record by consent or with the approval of the court.

Accordingly, the Court grants an order to remove the Substances of Opinion from the court file. [ 16 ] As the rules are silent as to filing expert reports this is a matter that required clarification by the Court and therefore each party shall bear their own costs. Heard on the 22 nd day of March, 2011. Dated at the City of Edmonton, Alberta this 23 rd day of March, 2011.

M.A. Binder J.C.Q.B.A. Appearances: William B. Hembroff, Bennett Jones LLP for the Defendants Edward M.A. Robinson, Frieser Robinson Mackay LLP for the Plaintiffs