Buckingham v. Schledt, 2011 ABQB 786

Court of Queen ’ s Bench of Alberta Citation: Buckingham v. Schledt, 2011 ABQB 786 Date: 20111213 Docket: 0101 11143 Registry: Calgary Between: Thomas Buckingham and Carrie Butters Plaintiffs - and - Heinrich Schledt, John Doe I and John Doe II Defendants Corrected judgment: A corrigendum was issued on December 15, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice T.F.

McMahon _______________________________________________________ [ 1 ] This is a personal injury claim being tried before a jury. During the course of treatment over several years, the Plaintiff ’ s general practitioner referred him to a number of specialists including a psychologist, who made a further referral to a neurosurgeon, Dr. Stephan du Plessis. Dr. du Plessis carried out an examination of the Plaintiff and provided a report to the referring general practitioner. That report was contained in the records of the general practitioner which were entered at trial.

The general practitioner was cross- examined on the report. The report contained an opinion arising from the examination by Dr. du Plessis. Dr. du Plessis ’ s name appeared on the Plaintiff ’ s witness list as a treating physician and not as an expert. The Plaintiff therefore did not comply with Rule 5.34 with

respect to that report. At the opening of trial, Plaintiff’s counsel advised that Dr. du Plessis had refused to voluntarily agree to attend attrial. He had not been formally served by the Plaintiff. Plaintiff’s counsel chose not to compel his attendance. [2] As matters unfolded, defence counsel served Dr. du Plessis and he will now attend at trial to give evidence. The Plaintiffthrough counsel has waived any privilege or confidentiality concerns that arise from the doctor-patient relationship. [3] The issue that now arises concerns Rule 5.34.

Must the Defendant comply with Rule 5.34 to extract opinion evidence fromthis witness, the opinion being restricted to that contained in his report to the referring physician? [4] I conclude that compliance with Rule 5.34 is not required. Treatment performed and recommended or not recommended isnecessarily based upon the physician’s diagnosis, observations and testing, all of which results in his opinion. The opinion is notprovided in the context of litigation. Some authorities describe this distinction as “treatment opinion” as against “litigation opinion”.Burgess v. Wu, (ON SC), [2003] O.J.

No. 4826 at para. 80; Beasley v. Barrand, 2010 ONSC 2095 , [2010]O.J. No. 1466 at para. 64. [5] It is different from opinion sought from experts for the sole purpose of giving evidence at trial or to opine upon the work oropinions of others. Rule 5. 34 applies to the latter only. [6] If compliance with Rule 5. 34 were required, I would give leave to adduce the evidence without compliance because thePlaintiff can show no prejudice in this case.

The Plaintiff has known of the evidence since it was given in the report of Dr. du Plessis,long before the Defendant knew of it. [7] There is no doubt that once on the stand, a witness is generally obliged to answer all relevant questions. That is so no matterwhich side calls the witness. Burgess v. Wu, supra, at para. 55 and 83; Metropolitan Life Insurance Co. v. Frenette, (SCC), [1992] 1 S.C.R. 647. [8] While it would be improper for Dr. du Plessis to accept a retainer to testify against his patient, that is not what is occurringhere.

As a treating physician, he is being called to testify and to speak to his report. The fact that his report may not assist the Plaintiffdoes not preclude his testimony. [9] In the result, the Defendant will be permitted to call Dr. du Plessis as one of the Plaintiff’s treating physicians and toquestion him on his report. Heard on the 21st day of November, 2011 to the 16th day of December, 2011. Dated at the City of Calgary, Alberta this 13th day of December, . T.F. McMahon J.C.Q.B.A. Appearances: Clint G. Docken, Q.C.

Patrick B. Higgerty William Quigley for the Plaintiffs Ray S. Wong Dan Downe, Q.C. for the Defendants _______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Mr. Justice T.F. McMahon _______________________________________________________ The text has been corrected in the first paragraph, third line, to read “ referral to a neurosurgeon ” .