Erketu v. Wilson, 2012 ABQB 748

Court of Queen ’ s Bench of Alberta Citation: Erketu v. Wilson, 2012 ABQB 748 Date: 20121204 Docket: 1003 01799 Registry: Edmonton Between: Ewnetu G. Erketu Plaintiff - and - Geordie Vern Wilson Defendant _______________________________________________________ Memorandum of Decision of R. P. Wacowich, Master in Chambers _______________________________________________________ [ 1 ] This case involves a personal injury action. The question before the Court is when should expert medical reports be exchanged by the Plaintiff and Defendant.

Affidavits of Records have been exchanged and Questioning has been completed. [ 2 ] Counsel for the Plaintiff has expert medical reports as to the injuries of the Plaintiff. Counsel for the Plaintiff asked Counsel for the Defendant on numerous occasions whether the Defendant would be making a Rule 5.41 application for a medical examination of the Plaintiff. Counsel for the Defendant takes the position that Rule 5.41 does not require him to determine his position on making the application prior to the Plaintiff providing his expert reports under Rule 5.35.

[ 3 ] Rule 5.35 states: 5.35(1) If a party intends to use the evidence of an expert at trial, the expert ’ s report must be served in the sequence described in subrule (2).

(2) Unless the parties otherwise agree or the Court otherwise orders, experts ’ reports on which a party intends to rely must be served in the following sequence: (

a) the party who bears the primary onus of proof must serve on each of the other parties the report of that party ’ s expert; (

b) the other party or parties must serve their expert ’ s rebuttal report, if any, and may include in the report issues not raised in the initial expert ’ s report; (

c) the party who served the initial expert ’ s report may serve a surrebuttal expert ’ s report that responds only to the new issues raised in the rebuttal report. [ 4 ] Rule 5.41 states: 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. [ 5 ] We are under the new Rules which have changed the Rules in this area from the former Rules 217 and 218. Rule 217 indicated: 217 Order for examination -

(1) In an action brought to recover damages or other compensation for or in respect of personal injury sustained by any person, the court may order that the person in respect of whose injuries, damages or compensation are or is sought shall submit to be examined by a duly qualified medical practitioner.

. . . .

(7) The party causing the examination to be made (

a) shall, upon request, deliver promptly to the party examined or his solicitor a copy of a detailed written report of the examining medical practitioner setting out his findings and conclusions, and (

b) is, upon request, entitled to receive promptly from the party examined a like report of every examination previously or thereafter made of the physical or mental condition of that party resulting from the injuries sustained [ 6 ] The old Rules did not provide for an exchange of reports in sequence. Rule 218.1 provided that: 218.1 Notice to adduce expert evidence -

(1) A party intending to adduce expert evidence at a trial shall, not less than 120 days before the day the trial commences or such other time as may be ordered by the Court, serve on other parties to the action (

a) a statement of the substance of the evidence, signed by the expert, including the expert ’ s opinion, the expert ’ s name and qualifications, and a statement from counsel setting out the proposed area of expertise for which qualification as an expert will be sought, and (

b) a copy of any expert ’ s report, signed by the expert, on which the party intends to rely. [ 7 ] As noted, under the old Rules each party had to serve their expert reports not less than 120 days before trial, regardless of whether they were the Plaintiff or the Defendant. On the face of it, the new Rules require the Plaintiff to provide their expert reports first.

They also eliminated the 120 day time period. [ 8 ] The Defendant takes the position that these revisions represent a dramatic shift in how and when expert reports are to be exchanged in that the Plaintiff can no longer hold on to their expert reports until a trial has been scheduled.

Nor can they use Rule 5.41 as a delay in releasing their reports. [ 9 ] Essentially, we have an impasse in the litigation as the Plaintiff does not wish to provide the expert reports pursuant to Rule 5.35 and the Defendant does not wish to elect as to whether he will make an application under Rule 5.41. [ 10 ] The Plaintiff submits that he is in a difficult position as he does not wish to provide the expert reports which provide the rationale for his expert ’ s opinions; nor does he wish to wait so long that the Defendant can apply to strike his action for want of prosecution.

Essentially, the Defendant has brought the action to a standstill unless the Plaintiff gives up any privilege he may have in the expert reports and provides them pursuant to Rule 5.35 to the Defendant prior to any Rule 5.41 application. [ 11 ] The Defendant ’ s position is that there is nothing in the Rules to require the Defendant to conduct his medical examination prior to the Plaintiff producing his expert reports. Further, the new Rules have been significantly altered particularly in the area of the timing and sequence of the exchange of export reports.

It is the Defendant ’ s position that the Plaintiff must provide their expert reports first. [ 12 ] A plain reading of the Rules would support the Defendant ’ s position. However, in any transition from the old Rules to the new Rules it is necessary to examine what the goal is of any changes - what is the desired result.

[ 13 ] The new Rules provide some general direction as to the transition from the old Rules to the new Rules. Rule 1.2 provides: 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.

(3) To achieve the purpose and intention of these rules the parties must, jointly and individually during an action, (

a) identify or make an application to identify the real issues in dispute and facilitate the quickest means of resolving the claim at the least expense, (

b) periodically evaluate dispute resolution process alternatives to a full trial, with or without assistance from the Court, (

c) refrain from filing applications or taking proceedings that do not further the purpose and intention of these rules, and (

d) when using publicly funded Court resources, use them effectively.

(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. [ 14 ] There have been many cases involving

interpretation of the new Rules in comparison to the situation under the old Rules. [ 15 ] In Gallant (Litigation Guardian of) v. Farries, 2012 ABCA 98 ; 2012 Carswell Alta. 539 Justice C ô t é , commented on the proper use of Rule 1.2 and its

interpretation. He states at paragraph 24: 24 Before turning to R. 7.1, it is useful to summarize the general principles discussed above.

1. The “purposes” provisions in R. 1.2 do not change anything. They say that the purpose of the new Rules is to resolve things in a timelyand cost effective way. That does not mean that the purpose of the old Rules was delay and expense, and somehow things have changed. 2. Those purposes provisions can provide some guidelines for

interpretation, but they cannot be used by individual judges to overrideprovisions of specific Rules on a case-by-case basis. 3. In matters of civil procedure there is always a tension between flexibility and predictability. Civil procedure has to be practical at itscore, and that requires flexibility. On the other hand, litigants need to know what the rules of the game are, and that requirespredictability. Predictability is established by setting out tests in the case law, and having the Masters and judges follow those tests.

It isnot workable to have individual Masters and judges rebuild the principles of practice from the ground up in every case. Our civilprocedure cannot be based on the length of the Chancellor’s foot. 4. The specific issue here is severing issues. There is nothing in the new Rules that suggests that we should head off in an entirely newdirection, and ignore all the learning of many decades of civil practice. Certainly R. 1.2 does not provide the justification for doing that.It has always been the presumption in our civil practice that all the issues are decided at once, in one trial or proceeding.

Bitterexperience has shown that searching for savings in time and money by chopping litigation up into little pieces simply does not work. [16] Both counsel agree that under the old Rules the Plaintiff did not have to release their expert reports prior to an independentmedical examination having been conducted. Rule 5.41 is akin to an independent medical examination. [17] The new Rules were prepared through consultation between the Alberta Law Reform Institute and the Rules of CourtCommittee.

While the Institute recognized this issue and the pros and cons of having the Plaintiff’s expert reports provided first, in myview nothing conclusive was decided and the Rules were passed in their present form. Do the new Rules indicate an intention to changethe previous practice of the Court in dealing with the exchange of expert reports? [18] Counsel for the Defendant takes some comfort in the case of Jacobson v. Sveen, 2000 ABQB 215. In that case the Defendanthad completed one independent medical examination under Rule 217 and was planning on conducting more examinations.

The Plaintiffargued that she was not required to serve her expert reports under Rule 218.1 until the Defendant had completed all Rule 217 medicalexaminations. The court required the Plaintiff to produce all of her expert reports despite the fact the Defendant had not completed alltheir exams. [19] Madam Justice Veit held that the purpose of Rule 218.1 was to “prevent trial by ambush, and, in particular, to allow a partyto counter the expert evidence called by a party opposite” (para. 40).

She went on to comment that “[i]t seems odd, given the supposedpurpose of Rule 217(7) - to require, as a triggering mechanism for Plaintiffs’ medical disclosure, that Defendants obtain their ownmedical examination before they can obtain a Plaintiff’s medical evidence” (para. 45). [20] Madam Justice Veit concluded that the purpose of Rule 217 was to do three things: “to allow a Defendant to have actualmedical discovery of the Plaintiff; to give the Plaintiff access to the medical information acquired by the Defendant; and, to give theDefendant full access to the medical evidence acquired by the litigant who is making the claim for damages” (at para. 46). [21] Madam Justice Veit recognized the practical difficulty with the Plaintiff’s position of withholding the reports until theDefendant completed their own examinations.

She noted that in a case where the Defendant gets, for example, a neurological reportunder Rule 217, the Plaintiff would be entitled to have additional neurological examinations undertaken and to challenge the opinions ofthe Defendants’ medical experts at trial. The Defendants, on the other hand, would probably not be allowed a second neurologicalexamination merely because the Plaintiff obtained an additional report of that type. [22] It is my view that Jacobson is not applicable to the facts of this case. In this case the Defendant has not obtained any medicalassessment of the Plaintiff.

If he had then the Plaintiff might be required to comply with Rule 535 (see also Vokes v. Backer, (1996), (AB KB), 45 Alta. L.R. (3d) 147 (Q.B.)).

[ 23 ] Master Schlosser decided a case somewhat similar to the case at bar in the case of Rodriguez v. Woloszyn , 2012 ABQB 671 . Rodriguez dealt with the issue of waiver of litigation privilege in the context of the Minor Injury Regulations. The Defendant and Plaintiff had agreed upon a certified medical examiner and expert reports had been provided by the Plaintiff to the certified medical examiner.

The Defendant wished to obtain the Plaintiff ’ s expert reports claiming that privilege had been waived via the provision of them to the certified medical examiner. [ 24 ] Master Schlosser stated: [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 [to] 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 ” ). [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. [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. [ 25 ] While this is not a case of privilege, the reasoning in Rodriguez is applicable to this case. [ 26 ] Also worth noting is the case of Vokes v. Backer supra.

In that case the Defendant sought a second medical examination of the Plaintiff. The Defendant sought and obtained an order requiring the Plaintiff to provide the Defendant with certain reports from the Plaintiff ’ s medical experts before completion of the second medical examination. In setting aside that order, MacCallum J. said at p. 149: The difficulty is that the defendant demands these reports now before providing the report of his second [medical examination].

He says that he needs to see the reports before even choosing his second expert because the contents of the report will assist in the choice of the expert. The plaintiff objects to this, pointing out the defendant would have already wrung one concession from the Court, namely a second [medical examination] without having to postpone its request for the plaintiff ’ s expert reports. I do not think that a plaintiff should have to forego the privilege attached to its expert reports until it has been provided with the final defence [medical examination] report.

I am persuaded by the argument that to be truly objective as opposed to being potentially adversarial, the Rule 217(3) expert should be working independently. The order requiring production of the raw data appears to be unprecedented and would constitute a further incursion into litigation privilege beyond that authorized by the plain words of the rule. [ 27 ] Of course all experts are required to provide their honest opinion as to the state and extent of the injuries. The Defendant asks what harm is there in following what he states is a literal

interpretation of the Rules requiring the Plaintiff to provide their expert reports first. The simple answer is that experience and common sense indicate that it is more likely for the Defendant ’ s expert to provide a

totally fresh opinion if he or she is not influenced by having read another expert ’ s medical opinion. [ 28 ] There is no reason why the Defendant cannot or should not make up its mind on a Rule 5.41 application within a reasonable period of time after Questioning. In my view the old practice should be continued and the Plaintiff should not be required to produce its reports until the Defendant has obtained its Rule 5.41 report or waived its right to apply for one. [ 29 ] While Rule 5.41 does not clearly provide for this, equally it does not preclude it. [ 30 ] How can this result be achieved.

Rule 5.35(2) indicates that “ unless . . . the court otherwise orders , expert reports on which a party intends to rely must be served in the following sequence: (

a) the party who bears the primary onus of the proof must serve on each of the other parties the report of that party ’ s expert; .... ” . [ 31 ] It is my order and direction that the Plaintiff is not required to serve its expert reports on the Defendant without further order of the Court. [ 32 ] That does not take us to the desired conclusion. Rule 5.41 does not provide any provision for the Court to direct a decision be made by the Defendant. My direction does not end the matter; the parties are left in the same position they are currently in.

The Plaintiff does not have to provide its reports and the Defendant does not have to make an election under R. 5.41. [ 33 ] It must be repeated that Rule 1.2 indicates that, “ (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 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. . . . ” . [ 34 ] Further, it is worth repeating the words of C ô t é , J.A. in Gallant (as previously noted): 3. In matters of civil procedure there is always a tension between flexibility and predictability. Civil procedure has to be practical at its core, and that requires flexibility. On the other hand, litigants need to know what the rules of the game are, and that requires predictability. Predictability is established by setting out tests in the case law, and having the Masters and judges follow those tests.

It is not workable to have individual Masters and judges rebuild the principles of practice from the ground up in every case. Our civil procedure cannot be based on the length of the Chancellor ’ s foot. 4. The specific issue here is severing issues. There is nothing in the new Rules that suggests that we should head off in an entirely new direction, and ignore all the learning of many decades of civil practice. [ 35 ] How can the old practice be continued?

Obviously I cannot direct what another Master or Justice would do if faced with an application under Rule 5.41 after the Plaintiff ’ s expert reports have been provided. The best I can do is to direct that within two months of the date of this decision, the Defendant will either make a Rule 5.41 application or advise Plaintiff ’ s counsel that he will not be making such an application. Failing that, the Plaintiff ’ s expert reports will be provided.

Should the Defendant then attempt to make a Rule 5.41 application, it is my recommendation that any member of the Court hearing a Rule 5.41 application in this matter refuse the application on the basis it is not in good faith and not in harmony with the preferred practice as set out in this decision and the long standing practice of this Court. Any such decision would of course be determined on the facts of the particular case before the Court and the decision makers view of the facts and the law. [ 36 ] There is another way of coming to this conclusion.

Rule 5.35 sets out the sequence in which expert reports are to be delivered, “ unless the Court otherwise orders ” . I order that the sequence will be that the Defendant deliver any Rule 5.41 expert report to the Plaintiff prior to the Plaintiff providing its expert ’ s reports. Further, if the Defendant wishes to obtain a Rule 5.41 report it will be ordered by the Defendant within two months of this decision and provided to the Plaintiff before the Plaintiff provides the Defendant with its expert medical examination reports.

[ 37 ] In the result, the Defendant is required within two months time of this date to provide the name of the expert/experts proposed for the assessment of the Plaintiff under Rule 5.41 and the date and location proposed for such assessment or advise the Plaintiff that the Defendant waives assessment of the Plaintiff under Rule 5.41. Failing this, the Plaintiff will provide its expert reports to the Defendant. Heard on the 18 th day of October, 2012. Dated at the City of Edmonton, Alberta this 4 th day of December, 2012. R. P. Wacowich M.C.C.Q.B.A. Appearances: Helmut Berndt Barrister and Solicitor for the Plaintiff Brian Thompson Chomicki Baril Mah LLP for the Defendant