Campbell v Beekman, 2011 ABQB 437

Court of Queen ’ s Bench of Alberta Citation: Campbell v Beekman, 2011 ABQB 437 Date: 20110707 Docket: 0803 14728 Registry: Edmonton Between: Carolyn Lee Campbell and Her Majesty the Queen In Right of Alberta Plaintiffs - and - Dr. Richard Beekman, Dr. Ronald St. Germaine, Dr. Hugo Bertozzi, Dr. Marcus P. Shaw, Dr. Marilise Erasmus, Dr. Femi B. Ayanrino Dr. Yolande Westra, Dr. Suk-Kun Lee, Dr. Robert K. Staples, Dr.

Unknown, Nurse Jane Doe and Peace Country Health Region Owning and Operating The Queen Elizabeth II Hospital Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [1] The Defendants Dr. Richard Beekman and Dr. Marcus David Shaw, with the consent of counsel for the Plaintiffs, seek to have the Clerk unfile the Expert Report of Dr. Nicholas Colapinto filed September 21, 2010 pursuant to Rule 218.1 of the former Alberta Rules of Court .

The Defendants in this medical negligence action essentially apply for an Order to remove from the Court file the Plaintiff’s Expert Substance of Opinion. No specific reason for seeking the unfiling appears in the Consent Order, nor was any specific

reason proffered. [2] I dealt with the filing and unfiling of Affidavits recently from the Court file in written Reasons for Judgment dated July 6th,2011 now reported at 2011 ABQB 435 as follows at paragraphs 3 to 12:– Analysis 3 Neither the Alberta Evidence Act, R.S.A. 2000, c. A-18 nor the Alberta Rules of Court establish specific guidance or direction forwithdrawing affidavits, however case law provides some authority on the subject matter. I conclude that I have the discretion to allow aparty to withdraw a filed Affidavit in certain circumstances. 4 In Boehringer Ingelheim (Canada) Ltd. v.

Pharmacia Canada Inc., 2003 FCA 151 the Federal Court of Appeal dealt with asituation where one party wished to withdraw a filed affidavit and substitute another. The Court held at paragraph 5 that suchsubstitution, which includes the withdraw, is at the Court's discretion but the Federal Court of Appeal refused to interfere with theProthonotary's decision not to allow the substitution. 5 Master Brine in the British Columbia case Gill v.

Gill, 2004, BCSC 518 enumerated a number of factors which may influence aCourt's decision on whether to exercise its discretion to allow the withdrawal of an affidavit as follows at paragraph 36:– In

summary, it appears that there is discretion in the court to order that affidavits filed in the court file may, upon application, bewithdrawn. Among the factors to be considered by the court upon such an application are the following: 1. Was the affidavit filed by mistake? 2. Has the affidavit been used, in the sense of having been before the court, during the course of considering an application? 3. Is there a pending application before the court for which a party has indicated it intends to rely upon the affidavit? 4.

Is the application to withdraw the affidavit made as a strategic or tactical decision to deny the other party access to relevantinformation or the ability to cross-examine the deponent? 5. Would the other party be prejudiced in any way by the withdrawal of the affidavit? 6. Are there policy considerations which would militate against a withdrawal of the affidavit? 7. Would the administration of justice be adversely affected by the withdrawal of the affidavit? 6 Some of these factors appear to carry more weight than others.

It is fairly clear that an affidavit may not be withdrawn if thepurpose of the withdrawal is to prevent the other party from cross-examining a witness: R.O.M. Construction v. Heeley (1982), (AB KB), 46 A.R. 366 (Q.B.). In addition, if the reasons for the withdrawal are tactical or would cause prejudice to theother party, then the withdrawal should not be allowed: Ominayak v. Lubicon Lake Indian Nation Election (Returning Officer) (2000),

(FC), 185 F.T.R. 33 (Fed. T.D.), rev'd on other grounds (2000) 267 N.R. 96 (Fed. C.A.). 7 If however on the other hand the administration of justice is brought in disrepute by not allowing the withdrawal of the affidavit,the Court may wish to consider exercising its discretion in favour of granting the application. See Gill v. Gill at paragraph 38. 8 Based on the facts that I have been given, the Gill case appears to be quite similar to the present application. Gill concerned amatrimonial dispute where both parties had filed inflammatory affidavits in support of and against an application by one party.

Throughcounsel, the parties settled the matter that was the subject of the application and then applied to have the inflammatory affidavitswithdrawn. The parties argued that keeping the affidavits on file would harm the goodwill generated by the agreement and could hamperefforts to resolve the remaining issues. Master Brine addressed these factors, and allowed the affidavits to be withdrawn for thefollowing reasons at paragraphs 37 and 38:– 37 In the application before me the affidavits in question have not been "used" in the sense referred to above.

Neither is therecurrently a pending application before the court for which notice to rely upon the affidavits has been given. There are no apparentstrategic or other inappropriate reasons for the request. There is clearly no prejudice to either party by the withdrawal as both partiesconsent to the relief sought. Finally, there can be no substantive policy reasons for denying the request.

To the extent that a court filemight be considered a "public" record, a matrimonial file cannot be accessed by members of the public in any event - at least without acourt order. 38 Here, it might also be argued that a denial of the order sought might result in bringing the administration of justice into disrepute.The submissions, which I accept, clearly indicate that the continued presence of the affidavits in the court file might adversely affect theongoing settlement discussions between the parties.

Considering that one of the objects of the Court's Rules and procedures is toencourage the resolution of disputes, particularly in matrimonial actions, the court's discretion ought to be applied in such a way toencourage, as far as may be possible, that end. 9 However the Master's analysis of the public policy factor may not be applicable to this case given that in Gill the matrimonialcourt file was not a public record because rule 60(41) of the British Columbia Supreme Court Rules in force at the time, prohibited thepublic from accessing matrimonial court files without leave of the Court. B.C.

Reg. 221/90 as repealed by C.C. Reg. 168/2009 There isno analogous provision in Alberta. Conclusion 10 There are policy reasons against allowing the Affidavit to be withdrawn, primarily not to allow someone to remove documentsfrom a Court file which is a public record. There is also no evidence that refusing the withdrawal could or would create additionalhostility between the parties so that there is no public policy reason to allow the Affidavit to be withdrawn.

In this particular case there isalso no evidence that the Affidavit in question was mistakenly filed. 11 However in this case but there is also no evidence that the Affidavit had been used since the application had not yet been heard.Since the parties settled the matter, the application is no longer pending before the Court. The application to withdraw the Affidavit isnot for any tactical purpose, or to prevent the other side from cross-examining the deponent.

There is no indication that any party will beprejudiced if the Affidavit is withdrawn, and both sides have consented to having the Affidavit withdrawn. 12 I have decided to allow the filed Affidavit to be withdrawn or unfiled in these particular circumstances, although the rather casualmanner in which this application was applied for belies it's serious nature in my respectful opinion. [3] This matter however deals with the removal of an Expert’s Report which the Rules of Court are also essentially silent as to aswell, although there are some general rules applicable to the filing of Reports.

[4] Binder, J in Henderson (Estate) v Arnett , 2011 ABQB 198 dealt with a situation where the applicant doctors argued that the information upon which the plaintiff’s experts relied on had been obtained in part to the discovery process associated with litigation, and as such they should not be filed with the Court, as the Rules only require that such reports be served on the parties. The applicant argued that the respondents had tainted the Court file with “evidence” which had not yet been ruled admissible.

The respondents in Henderson (Estate) v Arnett argued that the filing and serving of expert reports was permitted by the Rules , and was in fact useful to avoid surprise by expert opinions at trial, and enhanced the opponent’s opportunity to obtain rebuttal opinions. The respondents argued that the filing of Substances of Opinion was 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”.

The respondents also pointed to the Civil Practice Note in effect at the time of the filings which prescribed a Certificate of Readiness which asked regarding expert reports and whether they have been filed for the Court’s use. [5] My colleague Binder, J decided the issue as follows at paragraphs 8 to 15 in Henderson (Estate) v Arnett :– 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. Conclusion

[6] The Rules are essentially silent with respect to the unfiling of Expert Reports, but the Court has the general discretion to unfile, which it may exercise in appropriate circumstances. Given that the issue is non-contentious at least with respect to the unfiling of the present report of Dr. Nicholas Colapinto filed on September 21, 2010, I will allow the application, and not award costs to either party for the applicaton. Heard on the 30 th day of June, 2011. Dated at the City of Edmonton, Alberta this 6 th day of July, 2011. Donald Lee J.C.Q.B.A.

Appearances: Morgan Edgar, Student-At-Law Bennett Jones LLP for the Defendants, Dr. Marcus David Shaw, and Dr. Richard A. Beekman Carol L. Robinson Frieser Robinson MacKay LLP for the Plaintiffs