Rodriguez v. Woloszyn, 2012 ABQB 671

Court of Queen ’ s Bench of Alberta Citation: Rodriguez v. Woloszyn, 2012 ABQB 671 Date: 20121030 Docket: 1003 14650 Registry: Edmonton Between: Sarvelio James Rodriguez Plaintiff - and - Sandra Joyce Woloszyn Defendant _______________________________________________________ Reasons for Decision of W. S. Schlosser, Master in Chambers _______________________________________________________ [ 1 ] This application is about waiver of litigation privilege in the context of the Minor Injury Regulations ( AR 123/2004 ). [ 2 ] The Defendant nominated a certified examiner under the Regulations.

The Plaintiff acceded to her choice. A Plaintiff can challenge the choice of the certified examiner but they cannot opt out of the process. [ 3 ] The Regulation provides that the examiner may receive from the claimant or the Defendant, any information that either

party considers relevant to the assessment (section 10(2)(b)). The Regulation is neutral but in practice it is primarily a Defendant’sprocedure. [4] The Court of Appeal (affirming the decision of Master Mason, in part) recently discussed the history and operation of theRegulation in Benc v. Parker, 2012 ABCA 249.

Madam Justice Bielby, writing for the Court said: [9] The Regulation does not limit the use of other evidence generally available in civil litigation, including admissions obtained onquestioning, production of medical and other records and so-called “independent medical examinations” provided by physicians engagedby the defendant. However, while neither party is confined to relying upon the opinion of the certified examiner at trial, such opinion nodoubt bears considerable weight in settlement negotiations and trial preparation.

Plaintiffs faced with reports opining that their injuriesfall within the definition of “minor” must determine whether the prima facie effect of those reports can be rebutted by other availableevidence. Defendants faced with reports opining that injuries fall outside of the definition of “minor injury” lose a major negotiatinglever. Either way, ensuring settlement negotiations may result in early settlement, without the need or expense of trial. [5]

Section 12 of the Regulation provides that the opinion of the certified examiner is prima facie evidence that the claimant’sinjury is or is not a minor injury . . . . The Regulation essentially creates a rebuttable presumption in favour of the examiner’s opinion. [6] The ability to provide material to the certified examiner gives Plaintiff’s counsel a first opportunity to persuade the certifiedexaminer that the Plaintiff’s injuries are not minor. That is what happened here. [7] In this case, Plaintiff’s counsel provided two expert reports to the certified examiner.

The expert reports were obtained forthe dominant purpose of prosecuting the litigation and would ordinarily be privileged from production until the privilege was waived. [8] Despite seeing these reports, the certified examiner concluded that the Plaintiff’s injuries were minor. Now the Defendantwants them, arguing that litigation privilege had been waived when they were provided to the examiner. [9] The starting point is that the party that asserts the waiver bears the burden: Syncrude Canada v. Babcox &Wilcox (1992)1992 ABCA 300 , 10 CPC (3d) 388. (Alta.

CA, at para. 5). [10] The Applicant referred me to some Ontario decisions in support of her bid to have these reports produced. I note that Ontariohas a regulatory scheme comparable to our Minor Injury Regulation but that is of no relevance to the cases cited below. Both Ontariocases dealt with defence expert reports. [11] In Browne (Litigation Guardian of) v. Lavery, (2002) (ON SC), 58 O.R. (3d) 49, the Defendant retainedtwo expert engineers, one after the other. The second expert had the report of the first. The second was to be called at trial but the firstwasn’t.

The Plaintiff had the second report but wanted the first. The Defendant refused. The Court ordered production of the reportsaying: [49] The narrowing of litigation privilege has been advocated by numerous Ontario writers as the best means of pursuing truth in afair process and of facilitating early and just resolutions in litigation: Waddell, “Litigation Privilege and the Expert: In the aftermath ofChrusz”, The Advocates’ Society Journal, November 2001, Vol. 20, No. 2; McLeish and Smitiuch, “Expert Evidence: Setting the Stagefor Expert Testimony at Trial”, Advocates’ Quarterly, Vol. 22, No. 4.

It should also be noted that the view is not entirely a recent one, asevidenced by the comments of Professor Garry D. Watson, in his

article “Solicitor-Client Privilege in Litigation: Current Developmentsand Future Trends”, Canadian Bar Association, Ontario, Continuing Education, delivered on October 19, 1991. [51] Subject to the issue of causation or reliance discussed below, I conclude that an expert report from one expert which is sent toanother expert who is going to be called at trial falls within the scope of production established by the weight of authority.

[12] The Applicant argues that the principle of that case should apply here; ‘the report produced to an expert must be produced tothe other side, particularly if the expert receiving the report is expected to be called at trial’. [13] The Ontario Rules were amended in 2010 to require all experts to certify that their report is objective, fair and impartial(Ontario Rule 4.1.01). The effect of Ontario Rule 4.1.01 appears to be that once an expert is retained, their primary duty is to the Court. [14] Aherne v. Chang (2011) 2011 ONSC 2067 , 106 OR (3d) 297 (Ont. M., affirmed, 2011 ONSC 3846 Ont.

SCJ), wasabout surveillance sent to a defence IME doctor. Master Short, concluded that the surveillance should be contemporanously disclosed tothe Plaintiff saying: 84 In my view the situation is even clearer now. I take the position that from the moment of his retainer to conduct a Rule 37examination, a defence medical examiner [in Ontario] owes his or her primary duty to the court. It is inappropriate and unseemly for thecourt to prevent any party before it from having contemporary access to the information provided to that expert. 85 The following principles emerge from the rules and previous jurisprudence: (

a) if information is sent to an expert, then the same information should be sent to the opposing party to allow that party to test theexpert’s opinion; (

b) an opposing party is entitled to the facts on which the expert’s opinion is based; (

c) so long as an expert read a document sent to him or her, then that document was considered, such that it is a “finding” that mustbe produced; (

d) the privilege claimed over a document sent to an expert is waived at the time that it was decided to reply on that expert’s opinionor in circumstances where privilege is waived over the report, even if the waiver was inadvertent; (

e) by sending a defence medical assessor portions of surveillance, privilege over the full surveillance video or all photographs iswaived. [15] Master Short’s decision was upheld, though for different reasons, by Perell J., who said: 27 As will be noted below, under rule 33.04(2), which is set out below, the plaintiff is compelled to provide his or her medicalrecords and medical report to the health practitioner, and under s. 105(5) of the Court of Justice Act, which is also set out below, theplaintiff shall answer the questions of the examining health practitioner relevant to the examination and the answers given are admissiblein evidence.

Having disclosed his or her information and being compelled to make further disclosure it is a matter of rudimentaryfairness that the plaintiff know what information the defendant has provided to the health practitioner. The disclosure of the informationis also consistent with the policy of the modern rules of civil procedure to reduce ambush and surprise as tactical weapons in theadversary system of adjudication. 34 Pausing here, it is to be observed that unlike the situation of other expert’s reports, the health practitioner’s report must bedisclosed to all parties.

There is no prospect of the defendant undertaking not to call the expert as a witness at the trial asa means to keepthe report confidential. No privilege is attached to the report. It, therefore, is arguable that no privilege is attached to the informationthat has been provided to the health practitioner to prepare the report. 43 I, therefore, agree with the Plaintiffs’ argument that waiver of litigation privilege takes place when the defendant voluntarilysends the surveillance information to the health practitioner knowing that it will be disclosed to the plaintiff.

Aherne, 2011 ONSC 3846 [16] This reasoning may apply to a Defendant’s materials provided to a health care professional retained by a Defendant inAlberta pursuant to Rule 5.41. It might also be argued that these decisions apply to materials provided by a Defendant to a certifiedmedical examiner under the Minor Injury Regulation. In both cases, a Plaintiff is submitting to an examination and fairness requires that

they know what information the examiner has. [17] However, in my view the Aherne case falls short of establishing a universal principle and, with the greatest respect to thelearned Master, his

summary of the emerging legal principles is overly broad, at least so far as Alberta Law is concerned. I am alsoreluctant to accept a trend advocated by academic writers as a general principle. Aherne and Browne both dealt with defence reports. This case deals with Plaintiff’s reports. A Plaintiff’s and a Defendant’s position in a personal injury lawsuit are not the same. I prefer anapproach, or an analysis that can accommodate these differences [18] In Pinder v.

Sproule, 2003 ABQB 33, Slatter, J. (as he then was) reviewed authorities dealing with litigation privilege andsaid: 70 What guidance can be extracted from this mass of materials? While the law is not particularly well developed in this area, thefollowing principles would appear to apply when a document subject to the litigation privilege is disclosed to a third party: (

A) A document created for the dominant purpose of prosecuting litigation will be privileged. (

B) Disclosure of the document will not automatically result in the loss of the privilege. For example the following types ofdisclosure are recognized as being consistent with the privilege: (

i) inadvertent disclosure: Royal Bank v. Lee, supra. (ii) unauthorized disclosure: Syncrude Canada Ltd. v. Babcock & Wilcox Canada Ltd. (1992), 1992 ABCA 300 , 10 C.P.C.(3d) 388, 135 A.R. 21, 33 W.A.C. 21. (iii) disclosure that results from improper conduct, as in disclosure obtained by fraud, theft or other misconduct: Tilley v. Hails (No. 2)(1993), (ON SC), 12 O.R. (3d) 306, 18 C.P.C. (3d) 381; Miller v. Miller (2000), 2000 ABQB 12 , 257 A.R.232. (iv) disclosure to a person with a common interest in the litigation: YBM Magnex International Inc. (Re) (2000), 2000 ABCA 284, 88 Alta. L.R. (3d) 181, 271 A.R. 123, [2001] 2 W.W.R. 628 (C.A.). (

C) In other cases of disclosure the following test should be used to determine if the privilege has been lost; (

i) Is there still some legitimate interest to be protected by the privilege notwithstanding the disclosure? This will depend in largepart on the identity of the person to whom disclosure has been made, or as it has been put in some cases whether that person should beclassed as a “stranger” to the litigation. For example, disclosure to a Legal Aid Society for the purposes of getting coverage should notresult in a waiver; as is clear from R. v. Littlechild (1979), 1979 ABCA 321 , 51 C.C.C. (2d) 406, 19 A.R. 395, 108 D.L.R. (3d)340, [1980] 1 W.W.R. 742 (C.A.), which was approved in Descôteaux v.

Mierzwinski, (SCC), [1982] 1 S.C.R. 860. Even if the document has come into the hands of the adversary, the privilege may still be maintained for forensic reasons. Also relevantwill be whether the disclosure was made with knowledge of the privilege and the possible effect of disclosure, although the intent of theparty cannot trump other values. (ii) Given the disclosure that has taken place, will the maintenance of the privilege result in unfairness or prejudice to theadversary? In many cases the disclosure is perfectly legitimate, and completely collateral to the litigation, as in Anderson Exploration.

This factor raises questions such as whether the adversary has any legitimate interest in seeing the document, as when it discloses onlythe tactics of the party claiming privilege. Such documents are probably inadmissible in evidence as they are irrelevant to the issues, andthe adversary can not claim any reason why it should see them other than to obtain a tactical advantage over the party claimingprivilege. In our adversarial system this is not seen as a legitimate advantage.

On the other hand, when the documents are otherwiserelevant and are used for some substantive purpose, as when they are used by a treating physician to diagnose and treat the plaintiff, thenthe adversary may be able to show a legitimate interest in the document, and unfairness if the privilege is maintained.

(iii) Would the maintenance of the privilege in the face of the disclosure undermine the integrity of the system of administration of justice? This factor will overlap the previous one, as it will involve to some extent a balancing of the prejudice to the party asserting the privilege and the adversary. It will also engage wider public policy issues, such as those that arise when evidence is excluded for breaches of the Charter.

In the background will be the general issue of the fairness of maintaining or not maintaining of the privilege. [ 19 ] Pinder had to do (in part) with opinions given by the Plaintiff to one of the Plaintiff ’ s treating physicians, Dr. Block, who was likely to be called as an expert at trial. The Court held: 72 It remains to apply these principles to the facts of this case. As I have previously intimated, the two expert reports in question were clearly created for the dominant purpose of prosecuting the litigation, and were privileged on creation. Mrs. Pinder voluntarily released them to Dr.

Block, although I am satisfied that she did not know the documents were privileged, what that would involve, and that releasing the documents to a third party might jeopardize the privilege. There was certainly no informed intention to waive privilege. In releasing the documents to Dr. Block, Mrs. Pinder would have had a legitimate expectation that he would keep them confidential, and would not release them to the Defendants. There is nothing improper or mischievous about this disclosure from patient to doctor. Given the content and nature of the reports, whatever use Dr. Block make of them in treating Mrs.

Pinder would have been minimal. 73 On these facts there is still a legitimate reason for maintaining the privilege over the documents. Under the rules of the adversarial system, Mrs. Pinder was entitled to keep these documents away from the Defendants, and could even suppress the information in them at trial. Whatever inherent unfairness to the Defendants there may be in that rule, the unfairness has not in any way been enhanced by the disclosure to Dr. Block. The Defendants are essentially in the same position after the disclosure to Dr. Block, as they were before.

I see no prejudice or unfairness that would weigh decisively in favour of the Defendants. Nor does the mere fact that the documents have now been disclosed to Dr. Block have an impact on the integrity of the system of administration of justice. In all of the circumstances, I do not regard the disclosure of these two reports to Dr. Block as being sufficient to undermine the privilege over the reports. The Plaintiff is accordingly not obliged to produce the two reports to the Defendants. [ 20 ] Mr. Justice Slatter ’ s remarks are applicable to this case and would probably be enough to decide it.

However, there are some additional features of this litigation that merit consideration. [ 21 ] Even after a Plaintiff has been examined by a certified medical examiner, it is open to a Defendant to request that the Plaintiff be examined by a health care professional under Rule 5.41. The effect of such an examination may be to end litigation privilege for the Plaintiff ’ s medical legal reports. Rule 5.44(3) provides: 5.44(3) The party causing the medical examination to be conducted (

a) must, on request, deliver promptly to each of the other parties a copy of a detailed written report of the health care professional ’ s findings and conclusions, and (

b) is, on request, entitled to receive promptly from the person examined a report of every medical examination previously or subsequently made of the physical or mental condition of the person resulting from the injuries sustained or the mental or physical condition that is in issue . (emphasis added) [ 22 ] The Rule does not require production in advance of the examination. [ 23 ] If a Defendant were automatically entitled to a Plaintiff ’ s privileged expert reports provided to a certified examiner under the Minor Injury Regulation, there is a risk that a subsequent examination by a Defendant ’ s health care professional could, in effect, become a Defendant ’ s rebuttal report.

The risk detracts from the purpose of this procedure and it reverses the timing of disclosure that is otherwise mandated by Rule 5.44(3)(b). In this case, the Plaintiff offered to waive privilege immediately if the Defendant were to waive her right to a Rule 5.41 examination. But the Defendant refused.

[ 24 ] The learned authors of the Civil Procedure Handbook, (2009) 273, say in their annotation to old Rule 217, which was the predecessor to new Rule 5.41, that the examination by a Defendant ’ s health care professional is tendentiously referred to as an ‘ independent medical examination ’ ; tendentious because bias is no bar selection. (The Court in Benc , above, para. 9 refer to it as: “ a so- called ‘ independent medical examination ’ provided by physicians engaged by the defendant ” ). [ 25 ] Of course, I am not implying anything about the experts involved in this case but there is no Alberta equivalent to Ontario Rule 4.1.01 and no bar to selecting a Rule 5.41 practitioner that might be sympathetic to ones position in the lawsuit.

Litigants in Alberta are adversaries. They can be expected to take their advantages where they find them. [ 26 ] The circumstances of Plaintiffs and Defendants are quite different in a personal injury lawsuit. Fairness might require disclosure of defence materials provided to a defence expert to whom a Plaintiff is about to submit herself for examination, but the reverse is not necessarily true.

This Court ought to be reluctant to deprive a Plaintiff of whatever strategic benefit they might gain from the existing, well-established timing and manner of disclosure. [ 27 ] In the context of the Minor Injury Regulation there is, in my opinion, still a legitimate interest to be protected by the privilege, notwithstanding disclosure of Plaintiff ’ s medical reports to a Certified Medical Examiner. If anything, disclosure of a Plaintiff ’ s expert reports to the certified examiner ought to be encouraged.

That way the examiner ’ s report might gain additional persuasive force. [ 28 ] Maintenance of the privilege will not result in unfairness or prejudice to the Defendant. In fact, there is a risk that automatic disclosure could result in prejudice to the owner of the privilege. Refusing something that a Defendant would not otherwise be entitled to is hardly prejudice. [ 29 ] Maintenance of the privilege in the face of disclosure would not undermine the integrity of the system of administration of justice, given the well-established disclosure regime in personal injury litigation.

Waiver ought to be interpreted in a manner that is in harmony with the order and timing of disclosure otherwise mandated by the Rules. [ 30 ] For all these reasons the Defendant ’ s application is dismissed. [ 31 ] The Plaintiff ’ s reports were provided to the Court in a sealed file. Plaintiff ’ s counsel may make arrangements to retrieve them. Heard on the 17 th day of September, 2012. Dated at the City of Edmonton, Alberta this 30 th day of October, 2012. W. S. Schlosser M.C.C.Q.B.A.

Appearances: Helmut Berndt Helmut Berndt Professional Corporation for the Plaintiff Connor Glynn Parlee McLaws LLP for the Defendant