Nguyen v Koehn, 2012 ABQB 655

Court of Queen ’ s Bench of Alberta Citation: Nguyen v Koehn, 2012 ABQB 655 Date: 20121029 Docket: 0903 16828 Registry: Edmonton Between: Cuong Nguyen Plaintiff (Respondent) - and - Arnold Alan Koehn Defendant (Appellant) _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice M.T. Moreau _______________________________________________________ I. Introduction [ 1 ] Arnold Alan Koehn appeals the decision of the Master who refused his application to dispense with videotaping of the defence medical examination of Cuong Nguyen. II. Background Facts

[ 2 ] The appeal arises in the context of an action relating to a motor vehicle/cyclist collision on November 14, 2007 in which liability and damages are in issue. The Respondent alleges that he suffered injuries to his left foot, flank, hip, elbow and shoulder, and to his lower back. In his statement of claim, he seeks $74,000 in general damages. [ 3 ] The Respondent retained an orthopaedic specialist of his choice to complete a medical examination and assessment of his condition.

Counsel for the Respondent has not yet released the report of that assessment to the Appellant. [ 4 ] The Appellant selected an Edmonton orthopaedic specialist, Dr. Gordon Russell, to conduct a defence medical examination of the Respondent. The Respondent indicated through his counsel that he wished the examination to be videotaped. Dr.

Russell refused his request and also indicated that he would not permit a nominee health care professional to be present during the medical examination. [ 5 ] In his February 15, 2012 affidavit, the Appellant stated that his counsel contacted six specialists to determine if they were prepared to perform the defence medical examination with videotaping. Four (three orthopaedic specialists and one neurosurgeon) responded that they would not, while two others (an occupational medicine specialist and an orthopaedic specialist) said that they would.

Counsel for the Appellant indicated that his preference was to retain one of the four specialists who would not agree to videotaping. [ 6 ] According to a March 12, 2012 affidavit filed on behalf of the Respondent, the website of the College of Physicians and Surgeons lists 55 orthopaedic specialists, 53 neurologists, 25 specialists in physical medicine and rehabilitation, 15 rheumatologists, 11 occupational medicine specialists, and 22 neurosurgeons in the Edmonton area.

The affidavit also noted that Viewpoint Medical Assessment Services is able to offer videotaped defence medical examinations. [ 7 ] According to the Appellant’s April 27, 2012 rebuttal affidavit, a member of his counsel’s law office placed telephone calls to all 57 orthopaedic surgeons in the Edmonton area listed at the time on the website of the College of Physicians and Surgeons. She was unable to contact 12 of them. Of the remainder, 31 do not perform independent medical examinations.

Of those 14 who do, six indicated they will not permit videotaping, four confirmed they will allow it and four others have not yet responded. [ 8 ] Counsel for the Appellant does not wish to retain any of the four orthopaedic specialists who indicated they would allow videotaping, or the four who have yet to respond. His reasons relate to potential bias, credibility issues and not knowing these specialists as he has not previously retained them.

He is no longer interested in engaging a specialist other than an orthopaedic surgeon, as it was an orthopaedic specialist the Respondent chose to conduct his examination and assessment. [ 9 ] Counsel for the Appellant would prefer to retain any one of a group of three (Dr. Gordon Russell, Dr. Guy Lavoie, and Dr. Michel Lavoie) from the listed orthopaedic specialists who are prepared to perform independent medical examinations but who will not permit videotaping.

He has retained each of these three specialists in the past, has been exposed to their reports, and/or generally has a feeling of comfort with them. [ 10 ] The Appellant applied to the Master for an order that the Respondent not be permitted to videotape or make a word for word recording of the defence medical examination, as well as an order that the Respondent not be permitted to nominate a health care professional to be present during the defence medical examination. Finally, the Appellant sought an order that the Respondent attend on Dr. Gordon Russell for the defence medical examination.

The Respondent takes the position that he will not have been given the opportunity to choose a health care professional to conduct the defence medical examination if his counsel is precluded from retaining one of the three preferred specialists who will not permit videotaping. [ 11 ] The Master concluded that the purpose of former Rule 217(5) and the present Rule is to secure an accurate record of what transpired at the defence medical examination. He found that there is a presumption in favour of videotaping unless there is good reason to disallow it.

He observed that if only one doctor was available within a particular medical speciality and he or she refused to permit videotaping, that might be enough to justify dispensing with videotaping, but he was not satisfied that was the situation here. Accordingly, he dismissed the Appellant’s application.

III. Standard of Review [ 12 ] The relevant portions of Rule 6.14(1) relating to appeals from the Master provide: 6.14(1) If a master makes a judgment or order, the applicant or respondent to the application may appeal the judgment or order to a judge. (2) . . .

(3) An appeal from a master’s judgment or order is an appeal on the record of the proceedings before the master and, if the judge permits, may also be based on new evidence that is significant enough that it could have affected the master’s decision. [ 13 ] The Alberta Court of Appeal in Bahcheli v Yorkton Securities Inc , 2012 ABCA 166 , 524 AR 382, dealt at length with the appropriate standard of review on an appeal to the Court of Queen’s Bench from a Master’s decision. Writing for the panel, Côté JA concluded at para 30 that the standard of review on all issues is correctness.

Accordingly, the issue on this appeal is whether the Master was correct in his refusal to dispense with videotaping of the defence medical examination. IV. The New Rules [ 14 ] The Alberta Rules of Court , Alta Reg 124/2010, which are relevant to this appeal provide: Purpose and intention of these rules 1.2(1) The purpose of these rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost-effective way.

(2) In particular, these rules are intended to be used ... (

b) to facilitate the quickest means of resolving a claim at the least expense, . . . (

e) to provide an effective, efficient and credible system of remedies and sanctions to enforce these rules and orders and judgments. . . .

(4) The intention of these rules is that the Court, when exercising a discretion to grant a remedy or impose a sanction, will grant or impose a remedy or sanction proportional to the reason for granting or imposing it. Interpreting these rules 1.7

(1) The meaning of these rules is to be ascertained from their text, in light of the purpose and intention of these rules, and in the context in which a particular rule appears. Modification or waiver of this Part 5.3(1) The Court may modify or waive any right or power under a rule in this Part or make any order warranted in the circumstances if (

a) a person acts or threatens to act in a manner that is vexatious, evasive, abusive, oppressive, improper or tediously lengthy, or (

b) the expense, delay, danger or difficulty in complying with a rule would be grossly disproportionate to the likely benefit.

(2) In addition to making a procedural order, the Court may do any one or more of the following: (

a) make a costs award under

Part 10 [Lawyers’ Charges, Recoverable Costs of Litigation, and Sanctions] or require an advance payment against costs payable, or both; (

b) increase or decrease the amount of interest to which a person is entitled; (

c) order future questioning to be conducted before a judge, master or person designated by the Court; (

d) make any other order respecting the action or an application or proceeding the Court considers necessary in the circumstances. Division 3 Medical Examinations by Health Care Professionals Medical examinations 5.41(1) The parties may agree that the mental or physical condition of a person is at issue in an action and agree on a health care professional to conduct a medical examination.

(2) On application, the Court may in an action in which the mental or physical condition of a person is at issue do either or both of the following: (

a) order that a person submit to a mental or physical medical examination; (

b) appoint a health care professional to conduct a medical examination.

(3) The Court may order a second or further medical examination by a health care professional.

(4) If the plaintiff has been the subject of a medical examination by a health care professional of the plaintiff’s choice who will or may be proffered as an expert, the Court may order that the plaintiff be the subject of a medical examination by one or more health care professionals of the defendant’s choice. Options during medical examination 5.42(1) Unless otherwise ordered by the Court, a person who is to be the subject of a medical examination by a health care professional may elect to do one or more of the following: (

a) nominate a health care professional to be present during the medical examination; (

b) videotape the medical examination; (

c) make a word-for-word recording of the medical examination.

(2) The Court may (

a) define or limit the presence or role of the nominated health care professional, (

b) direct that any part of the medical examination, including any standardized tests, not be recorded, and (

c) otherwise provide direction as to the conduct of the medical examination. Payment of costs of medical examinations 5.43(1) Unless the Court otherwise orders, the party who applies for the order for a medical examination must pay the cost of the medical examination.

(2) Unless the Court otherwise orders, the cost of (

a) the attendance of a nominated health care professional at a medical examination, or (

b) videotaping or recording a medical examination, is to be paid by the party appointing the nominated health care professional or electing to have the medical examination videotaped or recorded.

(3) The party arranging for the videotaping or recording must provide a copy of the videotape or recording to the other party as soon as

practicable after the medical examination is completed.

(4) The videotape or recording (

a) may be shown or played at trial only with the Court’s permission, and (

b) may only be used to verify events at the medical examination. [ 15 ] Rule 5.44 is titled “Conduct of examination.” Subrules 5.44(1)-(4) set out the types of questions a health care professional conducting a medical examination is entitled to ask to which the person being examined must respond, samples or tests the health care professional may take or perform if the person to be examined agrees in writing or the Court so orders, and requirements relating to disclosure of reports of medical examinations.

Subrule 5.44(5) provides that on application, the Court may make any order it considers necessary to limit or curtail a medical examination. V. Arguments A.

The Position of the Appellant [ 16 ] The Appellant points out that, unlike Rule 217(5) under the former Alberta Rules of Court , Alta Reg 390/1968, which was applicable to the attendance of a nominee medical practitioner at a defence medical examination, Rule 5.42(1) contains the proviso “[u]nless otherwise ordered by the Court...,” giving the Court the discretion to dispense with the recording of and/or the presence of a nominee at a defence medical examination.

He distinguishes cases such as Nistor v Kankolongo , 2007 ABQB 684 , 431 AR 367, decided under former Rule 217(5) and which describe a plaintiff’s right to a nominee as “absolute,” on that basis. The Appellant also submits that Rule 5.42 should be considered in the context of the foundational rules generally, and Rule 1.2 in particular, which promotes the fair, timely, and cost-effective resolution of disputes.

The Appellant refers to Rule 1.7, and notes that Rule 5.3(1) permits the court to “... modify or waive any right or power under a rule in this Part.” [ 17 ] The Appellant submits that maintaining the videotaping option in this case will unduly limit the pool of available orthopaedic specialists he is entitled to choose from to perform the defence medical examination. He contends that the Master erred in failing to exercise his discretion under Rule 5.3(1)(

b) to dispense with videotaping in this case, as the “difficulty” caused by videotaping would be “grossly disproportionate” to its likely benefit.

The Appellant says that, having been met with so many refusals by orthopaedic specialists to permit videotaping, he will be forced to turn to an orthopaedic specialist his counsel does not wish to retain, thus depriving him of the choice he is clearly entitled to exercise under Rule 5.41(4) and hampering his right to a full and fair defence. [ 18 ] Appellant’s counsel refers to the difficulty with openly and publicly providing specific reasons for his rejection of those four orthopaedic specialists who will permit videotaping.

He asserts that, having demonstrated that the pool of orthopaedic specialists willing to allow videotaping is limited to four, it was for the Respondent to persuade the Master that videotaping should not be dispensed with in this case. [ 19 ] The Appellant refers to the following comments of Acton J in Crone v Blue Cross Life Insurance Company of Canada , 2001 ABQB 787 at paras 26-28 , 297 AR 351, decided under the former Alberta Rules of Court : .... it seems eminently reasonable that medical professionals should be left to conduct their medical examinations as they see fit unless there is a compelling reason for the court to interfere or the rules permit it, as for example the rule allowing the presence of a medical nominee chosen by the plaintiff.

The court cannot, in any event, compel a doctor to conduct an examination under circumstances which the doctor objects to, so if the courts begin to place constraints on how particular plaintiffs are examined, the predictable effect is that the number of doctors willing to perform defence medical examinations will decline, raising both the price and length of time to complete

the discovery process in personal injury actions. Second, given our Court of Appeal’s view that the purpose of a defence medical is to put the parties on a basis of equality as nearly aspossible in terms of collecting evidence of the injuries of the parties: Garyson v. Demers, 1974 ALTASCAD 81 , [1975] 2W.W.R. 289 (Alta.

C.A.), it seems incongruous, again without compelling reason, to order that the plaintiff may videotape the defencemedical examination, which will, of course, be ruthlessly scrutinized by the plaintiff’s experts while at the same time there will be noequivalent tape provided to the defence of the plaintiff’s doctor’s examinations. This has an air of unfairness to it which does not exist inthe absence of any recordings, in which case the parties are on equal footing in terms of having an equal opportunity to attack oneanother’s reports and medical examiners in cross-examination...

Accordingly, I find that there are significant policy reasons relating to the independence of medical practitioners and the efficiency andfairness of the discovery process which should cause courts to be reticent, absent clear and compelling reasons to permit the videotapingof a defence medical examination. [20] The Appellant argues that medical professionals should be free to decide how they will conduct their medical examinationsand, in cases such as this, where the pool of available specialists is limited by such decisions, defendants should not be placed in adisadvantaged position in the litigation.

He notes there is no equivalent requirement that medical assessments performed by specialistsretained by a plaintiff be videotaped. B. The Position of the Respondent [21] The Respondent submits that the default position under Rule 5.42(1) is that a plaintiff has the choice to have his or herdefence medical examination videotaped. It is for the Appellant to adduce evidence as to why the Court should order otherwise.

He takesthe position that such evidence should consist of more than just the blanket refusal by the health care professional to permit videotaping.The evidence should indicate what it is about this particular medical assessment or about the condition of the Respondent that makesvideotaping undesirable.

If this type of evidence was tendered, the Master would still need to consider whether some portions of theexamination should be videotaped, or whether audio-recording or having a nominee present are suitable alternatives before consideringwhether to restrict or dispense with any of the options under Rule 5.42(1). [22] The Respondent maintains that there was no evidence or insufficient evidence on which the Master could have exercised hisdiscretion to upset the default position in this case.

He contends that accepting a bare refusal given without reasons would effectivelyneutralize the options secured to plaintiffs by Rule 5.42(1). Nor was there evidence to indicate why medical specialists other thanorthopaedic surgeons could not perform the defence medical examination. Other medical disciplines such as occupational medicinespecialists, neurosurgeons and physical medicine specialists commonly perform medical examinations relating to the types of injuriessuffered by the Respondent. They would increase the pool of available specialists who might be willing to permit videotaping.

He pointsout that counsel for the Appellant initially canvassed a neurosurgeon and an occupational medicine specialist to perform theexamination. [23] The Respondent notes that the legislature saw fit to expand the options available to a plaintiff from simply allowing anominee to be present at the defence medical examination to permitting video and audio-recording of the examination, both of which arecost-effective alternatives. [24] He argues that he has done nothing to deprive the Appellant of his choice of assessor. Dr.

Russell has refused to “play by therules” without any reason being proffered for that refusal.

The Respondent submits that to give full effect to the new Rule, the pool ofavailable health care professionals of the Appellant’s choice should be restricted to those who are prepared to work within theframework of Rule 5.42. [25] While the Respondent acknowledges there may be exceptional situations in which the presence of recording equipment or anominee in the examining room might in some way hamper the examination, he suggests that cogent evidence in that regard must bepresented to justify any order which would affect his election under Rule 5.42 . [26] The Respondent argues that the Ontario case authorities relied on by the Appellant are completely irrelevant to this appeal, asthe Ontario Rules of Civil Procedure, RRO 1990, Reg 194 contain no provision expressly permitting video or audiotaping of defence

medical examinations, nor do they allow for nominees in the examining room.

He points out that Rule 33.05 of the Ontario Rules states: 33.05 No person other than the person being examined, the examining health practitioner and such assistants as the practitioner requires for the purpose of the examination shall be present at the examination, unless the court otherwise orders. [ 27 ] The Respondent submits that, unlike the situation in Ontario, the default position under the new Alberta Rules of Court is the entitlement of a plaintiff who is to be the subject of a defence medical examination to have a nominee present and/or to have the examination video or audio-recorded.

Accordingly, the Respondent asserts that the Master was correct in concluding that the onus was on the Appellant and that the Appellant had not met that onus in this case. VI. Discussion [ 28 ] Subrule 5.44(5) provides that, on application, the Court may make any order it considers necessary to limit or curtail a medical examination.

I am of the view that this subrule pertains to the conduct of the medical examination itself, given the heading to Rule 5.44, which is “Conduct of examination,” and not to how the medical examination is recorded. [ 29 ] New Rule 5.3(1) is similar to former Rule 216.1(1), which stated: 216.1(1) The court may modify or waive any right or power under this Part , on terms or otherwise, or may impose terms, on any party, where (

a) any party acts or threatens to act in a manner that is vexatious, evasive, abusive, oppressive, improper, or (

b) the expense, delay, danger or difficulty in complying fully would be grossly disproportionate to the likely benefit. [Emphasis added.] [ 30 ] Former Rule 216.1 was contained in

Part 13, Division 1 of the Rules, under the title “Discovery of Records.” Former Rule 217, which related generally to medical examinations, and Rule 217(5), which permitted a party being examined to have a nominee medical practitioner present during the medical examination, were contained in

Part 14 rather than

Part 13 of the Rules. As a result, it would appear that former Rule 216.1 did not apply to permit waiver of a party’s right to have a nominee present. [ 31 ] I note that Alberta cases cited by counsel that were decided under the former Rules determined that the right to a nominee was absolute (see Pohynayko v Vries , 2001 ABCA 20 at para 15 , 277 AR 72 and Nistor at paras 1and 10). These cases support the conclusion that there was no recourse to Rule 216.1 under the former Rules to deprive a party of his or her election to have a nominee present during the medical examination. [ 32 ] New Rule 5.3(1) is contained in Division 1 of

Part 5. The Rule provides that the court “may modify or waive any right or power under a rule in this Part... if... the expense, delay, danger or difficulty in complying with a rule would be grossly disproportionate to the likely benefit.”

Part 5 of the new Rules also contains Rule 5.42(1) in relation to defence medical examinations, which suggests that the court now has the power under Rule 5.3(1) to modify or waive the plaintiff’s right of election under Rule 5.42(1) if the conditions set out in Rule 5.3(1)(

a) or (

b) are met. [ 33 ] The heading of Rule 5.42 is “Options during medical examination.” I interpret Subrule 5.42(1) and (2) as authorizing the court to limit the manner in which a plaintiff may exercise his or her options under rule 5.42(1) in relation to the recording or witnessing of a defence medical examination. I am of the view that given the inclusion of these specific provisions that do not expressly limit the circumstances in which the Court may exercise its discretion, the Master was not constrained by the conditions set out in Rule 5.3(1). I believe this view is more in keeping with the intention and purpose of the new Rules as expressed in foundational Rule 1.7.

[34] The Appellant refers to case law from Ontario to support his position that the onus should be on the Respondent to justify hiselection to have the defence medical examination videotaped. I agree with the Respondent that the conclusions reached in the Ontarioauthorities cited are not helpful in the present case. In Bellamy v Johnson (1992), (ON CA), 8 OR (3d) 591, 90 DLR(4th) 564 (CA) and Sousa v Akulu (2006), 36 CPC (6th) 158 (Ont SCJ), it was held that the plaintiff has the onus of showing compellingreasons why a court should permit the tape-recording of a defence medical examination.

The Ontario Rules are silent on recordingdefence medical examinations and there is no right expressly provided for by the Courts of Justice Act, RSO 1990, c-43 to recordconversations within these examinations. [35] Clearly, this is not the situation under new Alberta Rule 5.42(1). Unlike the state of the law in Ontario, Rule 5.42(1) containsno requirement that a plaintiff demonstrate the potential for a bona fide concern as to the reliability of the doctor’s account of anystatements made by the plaintiff during the examination.

I am of the view that it is for the party seeking to dispense with videotaping tojustify the court exercising its discretion to deprive the person being examined of his or her entitlement to have the examinationvideotaped under the new Rule. [36] The Appellant submits that without a waiver of videotaping in this case, the equal playing field created by permitting defencemedical examinations will be disrupted, particularly given there is no requirement that a medical examination of the plaintiff performedat his or her behest be videotaped.

While Nistor was decided under the old Rules when the right to have a nominee present at a defencemedical examination was considered absolute, the comments of Bielby J (as she then was) at para 23 of that case regarding thedifference between the two types of medical examinations nonetheless are germane: No one suggests that the Legislature created the right to have a nominee present other than as a means of ensuring accuracy and fair playduring an examination ordered and paid for by a party opposite in interest.

Different considerations apply when a party is beingexamined by his own physician.” [Emphasis added.] [37] Doherty JA, who concurred in the result in Bellamy, expanded at para 28 on the different considerations that apply when aplaintiff is being examined by a doctor of the defendant’s choosing rather his or her own physician: It is unrealistic to view the relationship between the examining doctor and the plaintiff-examinee as akin to that of the relationship whichexists when a patient goes to a doctor seeking treatment or advice.

It is equally unrealistic to expect that the same rapport based onmutual trust and confidentiality should be expected or even sought. When determining whether the tape recording of the examinationwould interfere with an effective medical evaluation, the realities of the relationship between the doctor and the plaintiff-examinee mustbe borne in mind. It is not enough that the presence of the device could inhibit the development of the trust and confidence which wouldbe expected in a normal doctor-patient relationship.

Those features are not part of the “defence medical” dynamic. [38] Moreover, as noted by Bielby J in Nistor at para 24, if the legislature had intended that defendants retain an unfettered right tochallenge a plaintiff’s case, it would not have introduced the Rules relating to nominees. The same point can be made in relation tovideotaping. [39] While the Appellant referred to the policy considerations mentioned by Acton J in Crone to justify the Court dispensing withvideotaping, the legal landscape was quite different 11 years ago when Crone was decided.

Acton J noted at para 18 that there was noreported case in Canada where a defence medical examination had been tape or video-recorded pursuant to a court order. She observed atpara 36 that setting a precedent by allowing videotaping, absent substantial and compelling evidence that the recording was necessary toensure a proper and accurately recorded examination, had a far greater likelihood of breaking down the adversarial system than didcontinued reliance on tried and true methods of testing conflicting evidence.

Rule 5.42(1) now secures the entitlement of a plaintiff toelect in favour of video and audio-recording of the defence medical examination, unless the Court orders otherwise. [40] Given that the Respondent has been examined by an orthopaedic surgeon he chose, the Appellant wishes to have theRespondent examined by an orthopaedic specialist of his choosing. I note that the Appellant is not in the position of rebutting themedical report obtained by the Respondent, as it has not yet been disclosed.

I also note that one of the specialists initially consulted bycounsel for the Appellant to perform the defence medical examination, Dr. Hoffmann, an occupational medicine specialist, is prepared tohave the medical examination videotaped.

[ 41 ] There is no evidence indicating why the six orthopaedic specialists have refused videotaping and no evidence that it might impair their ability to conduct a proper and effective medical examination. It is the refusal of those orthopaedic specialists to permit videotaping that is limiting the Appellant’s choices, not the actions of the Respondent in insisting on an option the legislature has determined he may elect to exercise. [ 42 ] The Appellant argued that plaintiffs could use Rule 5.42(1) to artificially narrow the pool of available health care practitioners by asking for videotaping in every case.

I am not satisfied that asking for videotaping, which clearly is an option for a plaintiff under the new Rules, is indicative of a mischievous purpose.

In the appropriate case, where there are cogent reasons provided to justify dispensing with videotaping, the Court has the discretion under Rule 5.42(1) and (2) to do so, but not without considering various alternatives. [ 43 ] In the Alberta Law Reform Institute’s Alberta Rules of Court Project: Expert Evidence and “Independent ” Medical Examinations, Consultation Memorandum No. 12.3 (Edmonton: Alberta law Reform Institute, February 2003) pp 44-47, it was noted that having a nominee attend a defence medical examination under former Rule 217(5) was a way in which to ensure the medical practitioner’s questions were fair and the record of the examinee’s answers was accurate.

However, there was a concern that scheduling the attendance of the nominee at the examination could be difficult and it was expensive to have the nominee attend.

The Alberta Law Reform Institute concluded that videotaping would meet all of these objectives and, therefore, recommended that the examinee have the option to select videotaping as an alternative to having a nominee present. [ 44 ] In this particular case, the pool of available Edmonton orthopaedic specialists willing to allow videotaping of the defence medical examination is limited to a minimum of four and a potential maximum of eight (if one includes the four who were contacted on behalf of the Appellant but who have not yet responded).

I note that counsel for the Appellant did not provide specific reasons why he does not wish to select any of the specialists from that pool. I also note that counsel for the Appellant does not wish to retain medical professionals in related specialties to conduct the defence medical examination. At least one of those medical professionals (Dr. Hoffmann) is prepared to have his examination videotaped. [ 45 ] The evidence also discloses that Dr.

Guy Lavoie signed a form addressed to him by counsel for the Appellant indicating that while he would not permit his medical examination to be videotaped, he would permit a nominee to be present. Counsel for the Appellant named Dr.

Guy Lavoie as one of the three orthopaedic specialists he favoured to perform the examination. [ 46 ] In all of the circumstances, a fair result that would give effect to the purpose of Rule 5.42 would be to allow the Appellant, at his option to be exercised within 30 days of the release of these reasons, to select a health care professional who will permit videotaping, or instead to select one who will accept only the presence of a nominee.

If the Appellant decides on the latter option, he will be responsible for the payment of any costs associated with the attendance of the nominee to be selected by the Respondent which are over and above those that would be entailed with videotaping the examination. [ 47 ] I find that the Master did not err in declining to confirm the appointment of Dr. Russell to perform the defence medical examination as requested in the Appellant’s application. That particular selection would have deprived the Respondent across the board of all the options set out in Rule 5.42.

In the circumstances, the Appellant has not established that the Respondent should be deprived of all of those options. VII. Conclusion [ 48 ] I would allow the appeal only to the extent of entitling the Appellant, at his election to be exercised within 30 days of the release of these reasons, to choose a health care professional to conduct the defence medical examination who will allow videotaping or to choose one who will agree only to the presence of a nominee of the Respondent’s choosing.

The Appellant is responsible for the payment of any costs associated with the attendance of the nominee (selected by the Respondent) at the medical examination, less the cost that otherwise would have been incurred by the Respondent to videotape the defence medical examination pursuant to Rule 5.43(2) (b). [ 49 ] Counsel shall make arrangements within 30 days to speak to costs of this application if they are unable to come to an agreement.

[ 50 ] I wish to thank both counsel for their thorough written briefs and helpful oral submissions. Heard on the 3 rd day of October, 2012. Dated at the City of Edmonton, Alberta this 26 th day of October, 2012. M.T. Moreau J.C.Q.B.A. Appearances: Gary F. Zimmerman McLennan Ross LLP for the Appellant Arnold Alan Koehn Helmut Berndt for the Respondent Cuong Nguyen