BJM v SLM, 2012 ABQB 731

Court of Queen ’ s Bench of Alberta Citation: BJM v SLM, 2012 ABQB 731 Date: 20121128 Docket: 4801 148416 Registry: Calgary Between: BJM Applicant - and - SLM Respondent - and - Director, Alberta Child, Youth and Family Enhancement Third Party Restriction on Publication: Identification Ban – See the Child, Youth and Family Enhancement Act ,

section 126.2. No one may publish the name or photograph of a child, or of the child ’ s parent or guardian, in a manner that reveals that the child is receiving, or has received, intervention services. NOTE: This judgment is intended to comply with the restriction so that it may be published. Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Memorandum of Decision

of the Honourable Madam Justice C.S. Phillips (given orally on November 22, 2012 ) _______________________________________________________ [ 1 ] This matter came before me in my capacity as case management judge in this action. The facts leading up to this application, briefly stated, are as follows. [ 2 ] The Applicant BJM (“Mr.”) and Respondent SLM (“Ms”) were married on July 29, 2000 and separated on April 5, 2011. There is one child of the marriage, KM, born June [...], 2002 (the “Child”). [ 3 ] On June 6, 2011, Dr.

Janna Rosen Wollman swore an Affidavit attaching a report dated June 5, 2011 (the “Rosen Wollman Report”). Dr. Rosen Wollman had, at various times, provided counselling to Mr., Ms. and the Child. The Rosen Wollman Report alleges that Mr. sexually abused the Child. Mr. has sought to cross-examine Dr. Rosen Wollman on her Affidavit attaching the Rosen Wollman Report. However, he has been informed that Dr. Rosen Wollman is unable to submit to cross-examination for medical reasons. Dr.

Rosen Wollman is prepared to submit to written interrogatories. [ 4 ] Various orders of this Court ensued, but the substance thereof was that Mr. has had only supervised access to the Child since June 2011. He now seeks a shared parenting arrangement and a custody and access trial has been scheduled for two weeks in February 2013 to deal with this.

It should be noted that the matter has been investigated by the Director of Child, Youth and Family Enhancement and by the Calgary Police Service and it appears that there are no criminal charges pending against Mr. [ 5 ] There have been other reports prepared subsequent to the Rosen Wollman Report. Dr. Thomas Dalby prepared a report dated November 2, 2011 (the “Dalby Report”) in which he indicated that Mr. did not pose a risk to the Child. However, Dr. Dalby was questioned and, through that questioning, it became clear that there were problems with the Dalby Report.

Therefore, the parties have agreed that it will not be relied upon in these proceedings. [ 6 ] On behalf of Alberta Child, Youth and Family Enhancement, Dr. Peter Choate prepared a risk assessment dated June 12, 2012 (the “Choate Report”). The Choate Report states that supervised access is not required. Mr. asserts in his Affidavit sworn November 16, 2012 that “this has been the position of Alberta Child, Youth and Family Enhancement since November 14, 2011”.

He also states that the Alberta Child, Youth and Family Enhancement file on the family has been closed. [ 7 ] The parties agreed to a Bi-lateral Assessment and on April 13, 2012, Madam Justice Horner of this Court granted a Consent Order directing that the same be prepared by Dr. Terri Pezzot-Pearce pursuant to Rule 6.40 of the Rules of Court . Dr. Pezzot-Pearce’s report is dated July 12, 2012 (the “Pezzot-Pearce Report”) and was attached to an Affidavit sworn by her and filed August 8, 2012.

The Pezzot-Pearce Report indicates that Mr. is not a risk to the Child and recommends shared parenting on an equal basis. [ 8 ] Ms. asserts that there are several errors in the Pezzot-Pearce Report, including the stated date of completion. Accordingly, Ms. hired Dr. Jeff Chang to provide a critique of the Pezzot-Pearce Report. At the request of Ms.’s counsel, Dr. Pezzot-Pearce provided her notes and test results to Dr. Chang. [ 9 ] In addition, Ms. seeks to question Dr. Pezzot-Pearce on her Affidavit. Dr. Pezzot-Pearce has agreed to submit to questioning and the same initially was scheduled for November 28, 2012.

By agreement between the parties, it was rescheduled to 10:00am on November 23, 2012. [ 10 ] Based on the correspondence between counsel, it appears that Mr.’s counsel initially agreed to the questioning of Dr. Pezzot-

Pearce. However, on November 13, 2012, he sent a letter to counsel for Ms. stating that “My client does not consent to the questioning of Dr. Pearce, nor the release of her file.” In a separate letter of the same date, Mr.’s counsel states that “I am of the opinion that you have not followed the correct procedure in arranging for the cross-examination of Dr. Terri Pezzot-Pearce the Court appointed expert.” He goes on to cite Rules 5.37 and 6.42 of the Rules of Court . [ 11 ] On November 16, 2012, Mr. filed an application seeking the following relief: 1.

An Order that the [Choate Report] being held by Alberta Child, Youth and Family Enhancement be released forthwith to the Court and the parties; 2. An Order prohibiting the pre-trial cross-examination of Dr. Terry Pezzot-Pearce; 3. In the event that Dr. Rosen Wollman is not available to be cross-examined before trial on her Affidavit filed June 2011, that her Affidavit be struck and her evidence excluded from any further proceedings involving the parties; 4.

An Order obligating [Ms.] to forthwith deliver up to [Mr.’s] counsel the hard drive alleged to contain child pornography and other inappropriate images of women referred to in the Affidavit of [Ms.] sworn June 9, 2011; 5. Advice and directions with respect to this litigation; 6. Costs. [ 12 ] On the same date, Ms. filed a cross-application seeking the following relief: 1. An Order extending the time period for application before this Honourable Court to Question Dr. Terri Pezzot-Pearce. 2. An Order directing that Dr.

Terri Pezzot-Pearce shall be Questioned on her expert report, prepared July 12, 2012 and served upon counsel for [Ms.] on or about August 7, 2012. 3. An Order directing that Dr. Terri Pezzot-Pearce produce all statements of the parties or witnesses she received, whether considered or not in order to form her opinion; including all information in the possession of the expert that she did or did not rely upon, relating to this matter, in order to form her opinion, all test results she obtained in the course of her assessment, all original data in her possession and all other information in Dr.

Terri Pezzot-Pearce’s possession that relates to this matter. 4. An Order directing that the Questioning of Dr. Terri Pezzot-Pearce will take place on November 23, 2012 or at such alternate date as this Honourable Court directs. 5. Such further and other relief as this Honourable Court deems just and fit having regard to the circumstances. 6. Costs of this action on a solicitor and his own client basis as against the Defendant and/or counsel for the Defendant. [ 13 ] Those, then, were the issues before me.

At the commencement of the case management meeting on November 22, 2012, the parties indicated that they had reached an agreement to allow the questioning of Dr. Pezzot-Pearce. Nevertheless, I would have allowed the questioning and, given the uncertainty in the Rules of Court that will be described below, the parties asked me to release written reasons following my reading of same for the future guidance of the Bar. Therefore, references below to arguments made by the parties are to the written materials filed by the parties in advance of the case management meeting.

The Choate Report [ 14 ] The documents filed by the parties indicated that the Court’s direction was required with respect to the Choate Report. However, that matter was addressed during the oral hearing and I made the Order required of me. Ms. Berlin for the Director will prepare the Order for my signature. Therefore, I do not propose to deal with that matter here. The Pezzot-Pearce Report

[ 15 ] The most urgent issue in this application was the proposed questioning of Dr. Pezzot-Pearce, scheduled for November 23, 2012. [ 16 ] Because Dr. Pezzot-Pearce is a Court-appointed expert, questioning of her is governed by Rule 6.42, which reads as follows: 6.42(1) Within 20 days after receipt of a copy of the court expert’s report, a party may apply to the Court to question the court expert on the report.

(2) The Court may order the questioning of the court expert before or at a hearing of an application or originating application or before or at trial.

(3) The questioning may take the form of cross-examination. [ 17 ] If counsel for Mr. had not appeared initially to consent to the questioning of Dr. Pezzot-Pearce, presumably counsel for Ms. would have made application under this Rule in a timely fashion. Thus, although the 20-day period referred to in Rule 6.42(1) has expired, I am satisfied that the circumstances justify extending the 20-day period so as to allow for the required questioning. As the evidence of Dr. Pezzot-Pearce is directly relevant to the issues between the parties, I can see no reason why questioning should not be ordered.

Nor can I see any prejudice when the whole purpose of the questioning is to assist the Court or the parties in narrowing the issues and perhaps even settling the matter. [ 18 ] As noted above, prior to the case management meeting on November 22, 2012, Mr. ’s counsel objected to the questioning of Dr. Pezzot-Pearce before trial.

If I am wrong in my conclusion that Rule 6.42 applies, I must instead address Rule 5.37 of the Rules of Court, which provides as follows: 5.37(1) The parties may agree, or in exceptional circumstances the Court may direct, that an expert be questioned by any party adverse in interest to the party proposing to call the expert witness at trial.

(2) The questioning must be limited to the expert’s report.

(3) The Court may impose conditions about questioning with respect to all or any of the following: (

a) limiting the length of questioning; (

b) specifying the place where the questioning is to take place; (

c) directing payment of costs incurred; (

d) any other matter concerning the questioning.

(4) Evidence of an expert under this Division is to be treated as if it were evidence of an employee of the party who intends to rely on the expert’s report. [ 19 ] In addition to objecting to pre-trial questioning of Dr. Pezzot-Pearce, Mr.’s counsel argued that, if such questioning were allowed by this Court, it must be limited by virtue of Rule 5.37(2) to questioning on the Pezzot-Pearce Report and that the documents

reviewed by Dr. Pezzot-Pearce in preparing the Pezzot-Pearce Report do not lose their privilege until she is called as a witness at trial. In support of this argument, he cited the judgment of Mr. Justice McMahon of this Court in Chernetz v Eagle Copters Ltd. , 2005 ABQB 712 , 385 AR 238. Further, he pointed to Rule 5.37(4) in support of his position that any evidence given by Dr. Pezzot-Pearce on questioning is to be treated as if it were evidence of an employee of the party intending to rely on the Pezzot-Pearce Report.

Counsel submitted that “In other words, it would be some evidence of the party that chooses to rely on it and would not be binding upon that party.” [ 20 ] I asked both counsel to provide me with authorities considering the above new Rules, but was told that they could not find any. Neither have I been able to locate any. Therefore, we are, to a certain extent, in uncharted waters.

Some guidance may be had from cases decided under the old Rules of Court ; however, these cases must be viewed with caution as there are some significant differences in the wording of the old and new Rules. [ 21 ] The Table of Concordance indicates that Rule 5.37 corresponds to the old Rule 218.8. That Rule was considered by Mr. Justice Marshall of this Court in McCormac v Elasser , 1998 ABQB 548 , a case provided by Ms. McCullagh’s counsel.

Rule 218.8 provided as follows: 218.8(1) With leave of the case management judge, any expert proposed in an Experts Document may be examined by any party opposite in interest from the party proposing to call the expert witness, as if the examination were an examination for discovery of an employee of a party conducted pursuant to Rule 200.

(2) Any examination carried out pursuant to subrule (1) shall be limited to the matters touching the contents of the Experts Document of the person being examined.

(3) The case management judge may impose conditions in advance of any examination carried out pursuant to subrule (1) with respect to the following: (

a) limiting the examination as to length; (

b) directing the examination’s location; (

c) directing payment of costs incurred; (

d) any other matter concerning the examination. [ 22 ] This, then, is similar to the current Rule 5.37, though it does not impose the requirement for exceptional circumstances. Further, the limitation on the scope of the examination is worded somewhat differently. [ 23 ] Factually, the McCormac case, though it involved a personal injury claim on behalf of infant plaintiffs rather than a custody issue, has some similarities to the case before me. Mr. Justice Marshall had been case managing the matter.

Reports from experts in medicine and neuropsychology had been filed and the defendants sought pre-trial examination of those experts. Mr. Justice Marshall held that the expert reports were critical to the case, saying at para. 6 that “The expert opinions are the foundation of the application for severance since they set out the difficulties in determining a diagnosis and prognosis for the infants. The application is fundamental to determination of the course of the lawsuit.” [ 24 ] Mr.

Justice Marshall went on to hold as follows at paras. 7 and 9: Rule 218.8 does demonstrate a change in the procedure which has prevailed in Alberta until recently. An expert may now be fully

examined prior to trial. ... Since examination is permitted in some circumstances and the experts’ opinions are the basis of an application which is of crucial importance in these proceedings, the examinations should be permitted. [ 25 ] In her Affidavit, Ms. asserted that the Pezzot-Pearce Report “is of crucial importance in these proceedings and is fundamental to this action. The principal issues of parenting in this case are issues that were supposed to be addressed by Dr.

Pezzot-Pearce.” [ 26 ] I agree that expert reports considering appropriate parenting arrangements and assessing any risk to the Child are fundamentally important in this action. Indeed, those are the very issues that will be addressed at trial. To that extent, then, this case is on all fours with McCormac . [ 27 ] However, in contrast with the old Rule 218.8(1), Rule 5.37(1) provides that this Court may direct pre-trial questioning of an expert only in “exceptional circumstances”.

My review of the materials produced by the Alberta Law Reform Institute during the development of the new Rules of Court indicates that this addition arose out of a concern about undue delay and expense associated with permitting unrestricted questioning of experts. Are the circumstances of this case “exceptional” such that the order could be granted? [ 28 ] Black ’s Law Dictionary defines exceptional circumstances as “Conditions which are out of the ordinary course of events; unusual or extraordinary circumstances”. In my view, the circumstances of this case fall within that definition.

This is a difficult family law action that has been under case management. It is not, therefore, a standard or ordinary family matter. A serious allegation has been made against Mr. which has resulted in significant restriction on his access to the Child for the last several months. Other experts have since arrived at conclusions that stand in stark contrast to that allegation. Significantly, one of those subsequent experts has been questioned and his report discredited, with the result that it will not be relied upon in further proceedings.

The expert Ms. sought to question was appointed by the Court, rather than hired by either party. Further, there appeared initially to be agreement between the parties as to the questioning, but Mr.’s consent subsequently was withdrawn prior to the case management meeting on November 22, 2012, though the reasons for that are not clear. [ 29 ] In my view, addressing the issues arising from the expert reports may well result in a reduction in the time and complexity of the forthcoming trial.

The number of experts to give testimony may be reduced, the questioning of those experts may be more focussed or the issues to be addressed may be narrowed. If the questioning alleviates Ms.’s concerns as to the risk to the Child it is even possible that it will facilitate a settlement between the parties. Granting an order for pre-trial questioning with a view to achieving some or all of these results is consonant with the foundational rules set forth in the Rules of Court .

In particular, I have in mind the purposes enumerated in Rules 1.2(1) and (2), which provide: 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 (

a) to identify the real issues in dispute, (

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

c) to encourage the parties to resolve the claim themselves, by agreement, with or without assistance, as early in the process as practicable, (

d) to oblige the parties to communicate honestly, openly and in a timely way, and

(

e) to provide an effective, efficient and credible system of remedies and sanctions to enforce these rules and orders and judgments. [30] Therefore, I am satisfied that the exceptional circumstances required to permit this Court to order pre-trial questioning of Dr.Pezzot-Pearce exist in this case. In the result, the remaining issues to be determined are the scope of that questioning and the use towhich it may be put. [31] The scope of the questioning of Dr.

Pezzot-Pearce requires consideration of what materials she may be questioned upon.Mr.’s counsel pointed to Rule 5.37(2) in support of his position that the questioning must be limited to the Pezzot-Pearce Report onlyand that the witness statements, test results, etc. upon which Dr. Pezzot-Pearce based the Pezzot-Pearce Report remain privileged unlessand until Dr. Pezzot-Pearce is called as an expert witness at trial. However, if I am correct that the applicable Rule for the pre-trialquestioning of the Court-appointed expert Dr.

Pezzot-Pearce is Rule 6.42, there appears to be no similarly-worded limitation as set out inRule 5.37(2). [32] Counsel provided me with the decision of Mr. Justice Macklin of this Court in Ramirez v Brander, 2007 ABQB 729, 54 CPC (6th) 340, as well as the Chernetz decision referred to above. In Ramirez at para. 10, Mr.

Justice Macklin quoted as follows from his owndecision in Lamont Health Care Centre v Delnor Construction Ltd., 2002 ABQB 1125 at para. 12: In my view, it is equally important for opposing counsel to be able to explore with the expert in cross-examination the factualinformation, which may include statements of parties or witnesses, that the expert had but did not consider probative to the opinion he orshe formed.

In other words, the information the expert had in his possession when forming an opinion, may very well be considered byothers, including the Court, as relevant to the determination of the issue being considered and, more particularly, the credibility of theexpert and the validity of his opinion. To hold otherwise would be to allow single pieces of information or evidence to be cherry pickedout of all of the information provided without the opposing side having the opportunity of determining from where it was picked andfrom what context it was picked. [33] Mr.

Justice Macklin held at para. 11 of Ramirez that his order to compel production from the experts in that case “...wasintended to include all original data that was in the possession of the experts, whether that data was used or disregarded by them incompleting the analysis or in the formation of their ultimate opinion.” [34] In Chernetz, Mr. Justice McMahon commented about the production of documents underlying an expert’s report as follows atparas. 10 - 12: The issue here is privilege and waiver.

Communications between an expert and instructing counsel and working notes created by theexpert initially are privileged as having been created for the dominant purpose of use in litigation. When and if the expert takes the standto testify, the privilege is lost as to those documents that the expert reviewed in forming his opinion, whether the expert relied on,rejected or disregarded the information in those documents. The privilege also is lost on communication between the expert andinstructing counsel to the extent that those communications are relevant to the expert’s opinion.

For example, those communications maylimit or otherwise set the parameters for the opinion. The opposing party, on cross-examination, is entitled to explore such documentsand communications. This conclusion is consistent with the decision of the British Columbia Supreme Court in Vancouver CommunityCollege v. Phillips, Barratt (1987) (BC SC), 20 B.C.L.R. 289. As I have already noted, the comments made in Alberta Central and in Lamont are obiter.

While I can readily understand their reluctanceto see trials delayed by the need for an adjournment to deal with additional production, the issue of privilege is too fundamental to betrumped by the desire for trial efficiency. With respect, I prefer the view that it is the introduction of the expert’s report or opinion intoevidence at trial that creates the waiver of privilege. That is so whether the expert testifies or whether notice is given pursuant to Rule218.1(2) of an intent to file the report without calling the expert and no objection is taken.

If counsel chooses not to introduce the reportinto evidence, there is no waiver. The compelled disclosure of an expert’s report before trial pursuant to Rule 218.1 results necessarily in a waiver of the privilegeattaching to that document. There is no waiver of related privileged documents which are not the subject of a compelled disclosure unlessand until the report is introduced into evidence.

[ 35 ] Both of these cases were decided under the old Rules, under which the limitation on the scope of questioning was worded somewhat differently than it is in Rule 5.37(2). As well, neither case concerned pre-trial examination of the experts, nor did the Lamont case referred to by Mr. Justice Macklin in Ramirez . Thus, none of these cases pertains to the precise issue arising here. [ 36 ] In my view, the documents reviewed by Dr. Pezzot-Pearce in preparing the Pezzot-Pearce Report must be disclosed and the questioning may address those documents as well as the Pezzot-Pearce Report itself.

The documents to be produced include statements from parties and other witnesses, test results and so on. I have arrived at this conclusion for a number of reasons. First, I am of the opinion that the reference to the expert’s report in Rule 5.37(2), and for that matter in Rule 6.42, should be interpreted to include both the report itself and the basis thereof, namely the documents reviewed in preparing it.

Without those documents, the questioning of the expert would be of limited utility, particularly in a case like this where the credibility of the expert and the validity of his or her opinion is so crucial to the resolution of the issues. In the absence of the reviewed documentation, counsel’s ability to make a meaningful assessment of the expert’s opinion would be sharply curtailed and the potential for reduction in trial time and complexity would be lost.

In some cases, there may be good reason to limit production of the reviewed documents; this can be achieved through the imposition of conditions pursuant to Rule 5.37(3). This, however, is not such a case. [ 37 ] I hasten to add that this

interpretation of Rule 5.37(2) does not render it meaningless as there are still other documents that need not be produced and may not be questioned upon. In Ramirez , Mr. Justice Macklin, citing Chernetz , referred to such documents in para. 12 as “working papers”, which he interpreted to include “any communications, memoranda, calculations, notes, diagrams or doodles and preliminary opinions”. Any such working documents in this case are not subject to disclosure or questioning at this time, whether Rule 5.37(2) or Rule 6.42 is in play. [ 38 ] Even if I am wrong in this

interpretation of Rule 5.37(2), I reach the same conclusion for another reason. In his comments in Chernetz , Mr. Justice McMahon referred to the privilege attaching to documents used in preparing an expert report and stated that it was the introduction of the expert’s report into evidence at trial and the expert taking the stand to testify that triggered the waiver of privilege. I find that the same waiver arises in the event of pre-trial questioning. In the exceptional case where such questioning is ordered, the expert will give evidence under oath, just as he or she would at trial.

Counsel are entitled to test that evidence through cross- examination, just as would be the case at trial and I find that the privilege must be waived in those circumstances to allow for meaningful questioning. [ 39 ] Finally, there is in this case yet a further reason to compel production of the documents reviewed by Dr. Pezzot-Pearce in the preparation of the Pezzot-Pearce Report. Dr. Pezzot-Pearce was not hired as an expert by either Mr. or Ms.; rather, she was appointed by the Court. That being the case, I do not see how either party can claim privilege over the materials she reviewed.

Perhaps this is the reason no such limitation appears in Rule 6.42. It surely cannot be the case that privilege may be claimed by the party to whom a Court- appointed expert’s report is most favourable. Therefore, I find that in this case no privilege attaches. The documents must be produced to both parties and to the Court and the questioning of Dr. Pezzot-Pearce may encompass both the Pezzot-Pearce Report and the documents she reviewed in preparing it. [ 40 ] The remaining question is the proper treatment of Dr. Pezzot-Pearce’s evidence given under questioning.

As noted above, counsel for Mr. referred to Rule 5.37(4) and asserted that this evidence “would be some evidence of the party who intends to rely on the expert’s report and would not be binding upon that party”. [ 41 ] Rule 5.37(4) provides that “Evidence of an expert under this Division is to be treated as if it were evidence of an employee of the party who intends to rely on the expert’s report.” It appears to have its genesis in the old Rule 200 and the reference thereto in the old Rule 218.8(1), as set out above. [ 42 ] The reference to treatment of evidence as if it were that of an employee pertains to the distinction under the old Rules of Court between examination for discovery of a selected officer of a corporation under Rule 214 and of an employee under Rule 200.

The substance of the distinction was that evidence given by an officer under Rule 214 was binding upon the corporation, while evidence given by an employee under Rule 200 was not and could be refuted with other evidence. This was succinctly summarized by Mr. Justice Slatter, then of this Court, in Prairie Land Corp. v Concert Properties Ltd. , 2004 ABQB 726 , 364 AR 283 at para. 6 : The general rule is that the parties to litigation are entitled to examine each other for discovery: Rule 200. As a general rule, non-parties

to the action are not subject to discovery. Where one of the parties is a corporation, the examination for discovery has two aspects to it. The corporation is required to nominate a spokesperson whose answers are binding on the corporation: Rule 214(1).

In addition, Rule 200 provides that adverse parties can examine “officers or employees” of the corporation, although the answers of the officers and employees cannot be read in evidence against the corporation. [ 43 ] In addition, these very useful comments were made by Madam Justice Greckol of this Court in Abramski v TD Waterhouse Canada Inc. , 2006 ABQB 942 , 410 AR 158 at paras. 21 - 24 : It is true that a corporate party must acknowledge evidence from the examination for discovery of true employees examined pursuant to Rule 200(1)(

c) as part of the information of the corporate defendant. ... As argued by the Applicant, the practical effect of a corporate acknowledgement in relation to the evidence of an employee is that the evidence may then be read in at trial by the opposite party. That evidence does not bind the corporation, which may still adduce contrary or supplemental information at trial. ... The authorities that hold that a corporate party must acknowledge evidence by the examination for discovery of its employees is found in three decisions given by Wachowich C.J. in the same case of Esso Resources Canada v.

Stearns Catalytic Ltd. In the first decision ... Wachowich C.J. explained that a corporation has no personal knowledge or information, rather its knowledge and information is the totality of knowledge and information of its agents, servants, employees and former employees, and there are only limited circumstances under which a corporate officer can refuse to accept an employee’s evidence as information of the corporation.

While the employee’s evidence may form part of the information of the corporation at trial, it is not binding on the corporation, nor is it conclusive or incontrovertible and cannot form the basis of an admission of fact under Rule 230. [ 44 ] Applying this analysis to the case before me, I take Rule 5.37(4) to mean that the evidence given by an expert in pre-trial questioning does not bind a party who chooses to call that expert as a witness at trial. Rather, that party would be free to introduce contrary evidence.

Normally, of course, an expert will be called as a witness at trial by the party who hired him or her. In this case, as Dr. Pezzot-Pearce was appointed by the Court, she may be called as a witness at trial by either party, but her evidence at questioning will not bind either party. The Rosen Wollman Report [ 45 ] As noted above, Mr.’s counsel sought to cross-examine Dr. Rosen Wollman prior to trial, but has been told that she is unable to attend for questioning. This portion of the application was adjourned sine die with a direction from the Court to Mr.’s counsel to seek further information from Dr.

Rosen Wollman on her medical condition, following receipt of which a new date will be set to hear this portion of the application. Accordingly, I need not address this matter in these reasons. The Computer Hard Drive [ 46 ] Ms., in an Affidavit sworn in June 2011, asserted that she had found on a computer used in the family household prior to the parties’ separation, pornographic images involving young girls. Mr. has made repeated requests for access to the hard drive from this computer for examination by his experts.

This request was made most recently in a letter from Mr.’s counsel to Ms.’s counsel dated November 13, 2012. Mr.’s counsel indicates in that letter that Ms.’s expert may be present while Mr.’s expert examines the hard drive. [ 47 ] I was informed during the case management meeting on November 22, 2012 that the computer hard drive in question has been delivered to counsel for Mr.. Therefore, this issue is now moot and I need not address it.

Heard on the 22 nd day of November, 2012. Dated at the City of Calgary, Alberta this 28 th day of November, 2012. C.S. Phillips J.C.Q.B.A. Appearances: Max Blitt for the Applicant, BJM Jeffrey D. Wise, Q.C. for the Respondent, SLM Kim Berlin for the Director, Alberta Child, Youth and Family Enhancement