Rodriguez v. Woloszyn, 2013 ABQB 269

Court of Queen ’ s Bench of Alberta Citation: Rodriguez v. Woloszyn, 2013 ABQB 269 Date: 20130507 Docket: 1003 14650 Registry: Edmonton Between: Sarelio James Rodriguez Plaintiff (Respondent) - and - Sandra Joyce Woloszyn Defendant (Appellant) _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Thomas W. Wakeling _______________________________________________________ I.

Introduction [ 1 ] Master Schlosser held that the plaintiff did not waive litigation privilege in health care professionals ’ reports by voluntarily producing them to a certified examiner appointed under the Minor Injury Regulation , Alta. Reg. 123/2004 ( “ Minor Injury Regulation ” ) to opine on whether the plaintiff, a traffic accident victim, suffered a “ minor injury ” as defined by the Minor Injury Regulation . Rodriguez v. Woloszyn , 2012 ABQB 671 . [ 2 ] The defendant appeals. Court of Queen ’ s Bench Act , R.S.A. 2000, c. C-31, s. 12.

[3] The standard of review is correctness. Bahcheli v. Yorkton Securities Inc., 2012 ABCA 166 , 524 A.R. 382, 387(C.A. 2012). II. Questions Presented [4] Was the plaintiff obliged to disclose to the defendant any material he sent to the certified examiner in order to persuade thecertified examiner that he did not suffer from a minor injury? [5] Did the plaintiff waive litigation privilege over the reports when he provided them to the certified examiner? III. Brief Answers [6] The opinion of the certified examiner, according to s. 10(2)(

b) of the Minor Injury Regulation, “is prima facie evidence thatthe claimant’s injury is or is not a minor injury, as the case may be”. This is an important determination in the litigation process whichattracts the duty of fairness. The duty of fairness required the certified examiner to ensure that each party had access to the materialavailable to him. Plaintiff’s counsel also had an obligation to deliver to defendant’s counsel simultaneously any material he gave thecertified examiner. [7] The plaintiff voluntarily waived litigation privilege.

His counsel forwarded to the certified examiner reports he knew wereprivileged. IV. Applicable Parts of the Minor Injury Regulation and the Alberta Rules of Court [8] The relevant sections of the Minor Injury Regulation are set out below: 1 For the purpose of

section 650.1 of the [Insurance] Act and this Regulation, ... (h) “minor injury”, in respect of an accident, means (

i) a sprain, (ii) a strain, or (iii) a [whiplash - associated disorder] ... injury caused by that accident that does not result in a serious impairment;

6 Subject to section 7(2)(a), for the purposes of

section 650.1(2) of the Act, the total amount recoverable as damages for non-pecuniary loss for all minor injuries sustained by a claimant as a result of an accident shall not exceed $4000. 8(1) If a claimant and a defendant disagree as to whether an injury sustained by the claimant as a result of an accident is or is not a minor injury, either party may give notice to the other party in the prescribed form (

a) stating that the party giving notice desires to have a certified examiner assess the claimant for the purpose of giving an opinion as to whether the injury is or is not a minor injury, and (

b) specifying the name of the proposed certified examiner. 10(2) For the purpose of conducting an assessment of the claimant, the certified examiner may (

a) request the claimant to authorize in writing the release of any relevant diagnostic, treatment or care information in respect of the claimant that is in the possession of a physician or other person, including a regional health authority, and (

b) receive from the claimant or the defendant any information that either party considers relevant to the assessment.

(3) If the claimant, without reasonable excuse, (

a) fails to attend an assessment for which notice has been given under

section 9 or 11(3), (

b) refuses to answer any relevant questions of the certified examiner about (

i) the claimant ’ s medical condition or medical history, or (ii) matters referred to in

section 1(j)(

i) that relate to the claimant, (

c) fails to authorize the release of any relevant diagnostic, treatment or care information in respect of the claimant pursuant to subsection (2)(a), or (

d) in any other way obstructs the certified examiner ’ s assessment, the claimant ’ s injury shall be considered to be a minor injury. 11(1) The certified examiner must, within 30 days of the certified examiner ’ s assessment of the claimant, prepare an opinion in the prescribed form as to whether the claimant ’ s injury is or is not a minor injury and provide a copy of that opinion to each party. 12 The opinion of the certified examiner is prima facie evidence that the claimant ’ s injury is or is not a minor injury, as the case may be.

[ 9 ] Parts of rules 5.41 and 5.44 of the Alberta Rules of Court , Alta. Reg. 124/2010 ( “ Alberta Rules of Court ” ) read as follows: 5.41(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. 5.44(1) A health care professional conducting a medical examination may ask the person being examined questions relating to that person ’ s mental and physical condition and medical history, and the person being examined must answer the questions.

(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. V. Statement of Facts [ 10 ] The plaintiff is a traffic accident victim.

He commenced an action to recover damages for the personal injuries caused by the defendant. [ 11 ] The plaintiff and the defendant disagreed as to whether the plaintiff ’ s injuries were or were not a minor injury under the Minor Injury Regulation . [ 12 ] The defendant, as she was entitled to do under section 8(1) of the Minor Injury Regulation , gave notice to the plaintiff that she desired to have a certified examiner assess the plaintiff for the purpose of giving an opinion as to whether the injury the plaintiff suffered was or was not a minor injury. [ 13 ] Dr.

Naidu was appointed to conduct the certified examination. He is a certified examiner. [ 14 ] Both parties, without being asked by the certified examiner to do so, provided a number of documents to Dr. Naidu. Plaintiff ’ s counsel, in an April 21, 2012 letter, enclosed reports from a medical doctor and an occupational therapist and an MRI report. The Defendant ’ s counsel forwarded some documents from the plaintiff ’ s production and an agreed list of assumptions. [ 15 ] Defendant ’ s counsel wrote to plaintiff ’ s counsel on April 28, 2012 asking for copies of the documents he provided Dr.

Naidu on April 21, 2012.

[16] Plaintiff’s counsel declined to do so. He claimed in a May 2, 2012 letter to defendant’s counsel that “the reports [he] ... sent toDr. Naidu ... are privileged”. [17] Dr. Naidu conducted an assessment of the plaintiff and subsequently opined that the plaintiff’s injury was a minor injury. [18] On July 30, 2012 the defendant filed an application seeking a “declaration that there is a waiver over all expert opinions orreports that are sent to a Certified Examiner who is examining the Plaintiff and preparing a report pursuant to the Minor InjuryRegulation ...”. [19] Master Schlosser dismissed the application.

Part of his well reasoned opinion is set out below: [26] The circumstances of Plaintiffs and Defendants are quite different in a personal injury lawsuit. Fairness might require disclosureof defence materials provided to a defence expert to whom a Plaintiff is about to submit herself for examination, but the reverse is notnecessarily 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 expertreports 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 automaticdisclosure could result in prejudice to the owner of the privilege. Refusing something that a Defendant would not otherwise be entitled tois hardly prejudice. [29] Maintenance of the privilege in the face of disclosure would not undermine the integrity of the system of administration ofjustice, given the well-established disclosure regime in personal injury litigation.

Waiver ought to be interpreted in a manner that is inharmony with the order and timing of disclosure otherwise mandated by the Rules. 2012 ABQB 671. VI. Analysis A. The Certified Examiner Plays an Important Role in Identifying Claimants Who Suffer from Soft Tissue Injuries [20] At the start of this millennium insurance companies doing business in Alberta experienced a sharp rise in the number ofclaims seeking compensation for minor soft tissue injuries. This accounted for a spike in bodily injury costs which, in turn, drove upautomobile insurance premiums.

Albertans rebelled at the prospect of paying sky high rates or being forced off the road because they could not afford automobile insurance premiums. See Morrow v. Zhang, 2009 ABCA 215 , 307 D.L.R. 4th 678, 687-88 (Alta.C.A. 2009). [21] The Government of Alberta responded with a wide range of reforms. Some were aimed at promoting wellness. Others wereintended to reduce the amount paid out to a segment of the claimant community. Morrow v. Zhang, 2009 ABCA 215 , 307 D.L.R. 4th 678, 715 (Alta. C.A. 2009).

One of the wellness initiatives gave a claimant prompt access to health care professionals.Diagnostic and Treatment Protocols Regulation, Alta. Reg. 122/2004. The legislature must have assumed that reduced recovery times for a claimant would ultimately lead to reduced system costs. Morrow v. Zhang, 307 D.L.R. 4th 678, 717 (Alta. C.A. 2009). Measureswere also introduced to cap the pay out for pain and suffering at $4,000. This would drive costs and premiums down. Morrow v. Zhang,

307 D.L.R. 4th 678, 688 (Alta. C.A. 2009). [22] The Minor Injury Regulation created the role of the certified examiner and assigned important duties to this position. If theinjured person and the defendant are unable to agree on whether an injury is or is not a minor injury, as defined in the Minor InjuryRegulation, either party may request that a certified examiner assess the claimant “for the purpose of giving an opinion as to whether theinjury is or is not a minor injury”. Minor Injury Regulation, s. 8(1). [23] The certified examiner is assigned extensive powers.

He may request the injured person “to authorize in writing the release ofany relevant diagnostic, treatment or care information” and ask “any relevant questions ... about the claimant’s medical condition orhistory”. Minor Injury Regulation, s. 10(2)(3). [24] A plaintiff or defendant may also deliver to the certified examiner “any information that either party considers relevant to theassessment”. Minor Injury Regulation, s. 10(2)(b). [25] The opinion or decision of the certified examiner “is prima facie evidence that the claimant’s injury is or is not a minor injury,as the case may be”.

Minor Injury Regulation, s.12. [26] Even though the case law does not determine whether the concept of “prima facie evidence”, an ambiguous phrase at best,means that the proof of A, in the absence of evidence to the contrary, either compels the conclusion that B exists (Circle FilmEnterprises v. Canadian Broadcasting Corp., (SCC), [1959] S.C.R. 602, 607) or allows the conclusion that B exists (TheQueen v. Sunbeam Corp. (Canada), (SCC), [1969] S.C.R. 221, 228), it is undeniable that proof of the certifiedexaminer’s opinion is important.

In this example, in the absence of evidence to the contrary, proof of the certified examiner’s opinion(A), either compels or allows the court to conclude that the claimant’s injury was minor or not (B), as the case may be. [27] This discussion of the meaning of the “prima facie evidence” concept fails to disclose the practical dimension of the certifiedexaminer’s opinion. The Court of Appeal, in Benc v.

Parker, 2012 ABCA 24, ​ 9 fills in this missing element: The [Minor Injury] Regulation does not limit the use of other evidence generally available in civil litigation, including admissionsobtained on questioning, production of medical and other records and so-called"independent medical examinations" provided byphysicians engaged by the defendant. However, while neither party is confined to relying upon the opinion of the certified examiner attrial, such opinion no doubt bears considerable weight in settlement negotiations and trial preparation.

Plaintiffs faced with reportsopining that their injuries fall within the definition of "minor" must determine whether the prima facie effect of those reports can berebutted by other available evidence. Defendants faced with reports opining that injuries fall outside of the definition of “minor injury”lose a major negotiating lever. Either way, ensuing settlement negotiations may result in early settlement, without the need or expense oftrial. (emphasis added) See also 2012 ABCA 249, ​​ 40 & 50. B.

The Duty of Fairness Prohibits One Party from Providing the Certified Examiner with Material Not Simultaneously Disclosed tothe Other Party [28] The certified examiner, in publishing an opinion as to whether a person has a minor injury, makes an important decisionwhich affects both the plaintiff and the defendant. As a statutory delegate, he must act fairly. D. Jones & A. DeVillars, Principles of Administrative Law 248 (4th ed. 2004). [29] The contents of the duty to be fair is a function of many factors, including the impact the decision has on the rights of theparties in the adjudicative process.

And, as leading commentators have observed, the assessment is context specific. D. Jones & A. de Villars, Principles of Administrative Law 259 (4th ed. 2004) & H. Wade & C. Forsyth, Administrative Law 498 (9th ed. 2004).

[30] On the impact the duty to be fair has on the concept of disclosure, the following observations are undoubtedly persuasive:“[F]airness generally requires that all information relied upon by the tribunal when making its decision be disclosed to the individual. ...The information to be disclosed includes ... any other report which the tribunal has relied on in making its decision”. D. Jones & A. de Villars, Principles of Administrative Law 259 (4th ed. 2004). [31] Taking into account the legal and practical consequences of the opinion of the certified examiner and the power granted tothe certified examiner by s. 10(c)(

b) of the Minor Injury Regulation to “receive from the claimant or defendant any information thateither party considers relevant to the assessment”, I am satisfied that the duty of fairness compels the disclosure of any information whichthe parties deliver to the certified examiner under s. 10(2)(

b) of the Minor Injury Regulation to the other side. The obligation to disclosealso rests with the certified examiner if the party who provided the material failed to deliver it to the other side. [32] A statutory delegate breaches the duty to act fairly if she has relevant material not known to both sides. Kane v. University ofBritish Columbia, (SCC), [1980] 1 S.C.R. 1105, 1113-1116 (the board of governors improperly questioned theuniversity president in the absence of a disciplined professor); Echo Bay Mines Ltd. v. Labour Standards Board, (NWT SC), [1992] N.W.T.R. 289 (Sup.

Ct.) (Labour Standards Board improperly failed to disclose that it had invited the officer whosedecision was under review to address a contentious issue); Kanda v. Government of Malaya, [1962] A.C. 322, 338 (P.C.) (Malaya) (thedismissal of a police officer declared unlawful because the adjudicator failed to disclose a prejudicial report about the dismissed officerin his possession); Webb v. Ontario Housing Corp., 93 D.L.R. 3d 87, 195 (Ont. C.A. 1978) (before a public authority may terminate thelease of a welfare tenant it must disclose to her the complaints about the behaviour of her children); The Queen v.

Deputy IndustrialInjuries Commissioner ex p. Jones, [1962] 2 Q.B. 677, 685-86 (Q.B. Div.) (the adjudicator acted unlawfully in seeking a medical opinionafter the hearing closed without allowing the claimant to respond to it); Volkswagen Northern Ltd. v. Board of Industrial Relations, 49W.W.R. 574, 575 (Alta. Sup. Ct. 1964) (neither the board nor the union organizer disclosed to the employer a telegram the unionorganizer sent the board after the hearing concluded); Anadarko Petroleum of Canada Ltd. v. Syd Johns Farms Ltd, (BC SC), [1975] 6 W.W.R. 350, 356 (B.C. Sup.

Ct.) (the board assessing compensation due a landowner whose property was damagedby an oil and gas company could not rely on a report neither side saw); Carling O’Keefe Ltd. v. Public Utilities Board, (MB CA), 52 D.L.R. (3d) 723, 727 (Man. C.A. 1974) (the board improperly sought input from one side after the hearing closed). It isimmaterial that the undisclosed documents may not have affected the decision of the statutory delegate. Kane v. University of BritishColumbia, [1980] 1 S.C.R. 1105, 1116 & Kanda v.

Government of Malaya, [1962] A.C. 322, 337 (P.C.) (Malaya). [33] A party whose interests are affected by a decision of the certified examiner cannot provide the certified examiner withsubstantive material, such as medical reports about the plaintiff, without simultaneously delivering them to the other side. [34] The administrative law duty of fairness resolves the question presented for consideration. The plaintiff has to disclose thedocuments he gave the certified examiner. It matters not whether the document withheld is one over which the plaintiff is entitled toassert litigation privilege. C.

The Plaintiff Has Waived Privilege Over the Reports Disclosed to the Certified Examiner 1. The Elements of and the Rationale for a Litigation Privilege [35] Litigation privilege attaches to “[c]ommunications between a lawyer and third person ... if, at the time of making thecommunication, litigation was commenced or anticipated and the dominant purpose for the communication was for use in, or advice on,the litigation”. D. Paciocco & L. Stuesser, The Law of Evidence 235 (6th ed. 2011). See also Waugh v.

British Railway Board, [1980] A.C. 521, 544(H.L.) (“Dominant purpose ... should now be declared to be the touchstone”) & A. Bryant, S. Lederman & M. Fuerst, The Law ofEvidence in Canada 977-78 (3d ed. 2009) (“the privilege will only attach if the dominant purpose for the third party communication wasto assist in possible forthcoming litigation”). [36] This exclusionary rule exists to promote interests distinct from those which account for solicitor-client privilege. TheSupreme Court of Canada in Blank v.

Canada, 2006 SCC 39 , [2006] 2 S.C.R. 319, 330-31 approved Professor Sharpe’sunderstanding of the difference between the two:

Litigation privilege ... is geared directly to the process of litigation. Its purpose is not explained adequately by the protection affordedlawyer-client communications deemed necessary to allow clients to obtain legal advice, the interest protected by solicitor-clientprivilege. Its purpose is more particularly related to the needs of the adversarial trial process. Litigation privilege is based upon the needfor a protected area to facilitate investigation and preparation of a case for trial by the adversarial advocate.

In other words, litigationprivilege aims to facilitate a process (namely, the adversary process), while solicitor-client privilege aims to protect a relationship(namely, the confidential relationship between a lawyer and a client). “Claiming Privilege in the Discovery Process”, Special Lectures of the Law Society of Upper Canada Law in Transition: Evidence 165(1984). See also General Accident Insurance Co. v. Chrusz, (ON CA), 45 O.R. 3d 321, 331 (C.A. 1999) (“thereasonable requirements of counsel to conduct litigation must be recognized”) & E.

Imwinkelried, The New Wigmore A Treatise onEvidence: Evidentiary Privileges 79 (2002) (work product protection encourages “the attorney’s trial preparation”). [37] Litigation privilege preserves the degree of nondisclosure which the courts consider necessary for the efficient operation ofthe adversarial system. It has changed considerably over time. E.g., 15 W. Holdsworth, A History of English Law 308 (1965) (discoverywas a feature of equity practice but not common law practice) & A. Bryant, S. Lederman & M.

Fuerst, The Law of Evidence in Canada978 (3d ed. 2009) (“the modern-day reality is in the direction of complete discovery”). The Supreme Court of Canada will favourdisclosure values even if doing so diminishes the adversarial nature of litigation. Blank v.

Canada, 2006 SCC 39 , [2006] 2S.C.R. 319, 340 (“Though [the dominant purpose test] ... provides narrower protection than would a substantial purpose test, thedominant purpose standard appears to me to be consistent with the notion that litigation privilege should be viewed as a limited exceptionto the principle of full disclosure and not as an equal partner of the broadly interpreted solicitor-client privilege”). Baseball’s rule makerspursue a similar objective - promotion of fair competition - when they take steps to limit the pitcher’s ability to alter the baseball.

Theybelieve that a pitcher has an unfair advantage if he is allowed to throw a “spit ball”. Banning this conduct preserves the level ofcompetitiveness the rule makers consider desirable. Official Baseball Rules (2013 ed.), r. 8.02(a)(6). The courts have a similar vision ofthe level of transparency necessary to promote a just dispute resolution process. [38] The defendant has conceded for the purposes of this application that the medical reports the plaintiff forwarded to Dr. Naiduare subject to litigation privilege. 2.

The Duration of the Litigation Privilege [39] There are two events which mark the end of the period under which a document is protected by litigation privilege. [40] First, as the litigation privilege is designed to ensure that the adversarial process functions effectively, the termination of thelitigation, and proceedings which are sufficiently similar to justify the continued existence of the privilege, eliminates the conditionwhich justified the privilege. Blank v. Canada, 2006 SCC 39 , [2006] 2 S.C.R. 319, 333.

Unlike the solicitor-client privilege,which lasts forever, without regard to the continued existence of the solicitor-client relationships (Blank v. Canada, [2006] 2 S.C.R. 319,337 & Bell v. Smith, (SCC), [1968] S.C.R. 664, 671), the litigation privilege does not survive the end of the litigation(Blank v. Canada, [2006] 2 S.C.R. 319, 340). [41] Second, just as the client may relinquish the protection of the solicitor-client protection, a litigant or potential litigant maylose the benefits of the litigation privilege. Bell v.

Smith, (SCC), [1968] S.C.R. 664, 671 (client may waive the solicitor-client privilege) & A. Bryant, S. Lederman & M. Fuerst, The Law of Evidence in Canada 982-87 (3d ed. 2009) (a discussion of thecircumstances under which litigation privilege is lost). [42] There are two ways this may occur. [43] A court may adjudge that a litigant or potential litigant voluntarily waived the privilege. This is a subjective assessment. Or acourt may determine that the privilege holder has acted in a manner which undermines the reason the privilege is created and declare theprivilege lost. This is an objective assessment.

[44] A litigant or potential litigant may voluntarily waive privilege. C. Tapper, Cross & Tapper on Evidence 472 (11th ed. 2007); 8J. Wigmore, Evidence in Trial at Common Law 634 (McNaughton rev. 1961) & The Law of Privilege 242 (B. Thanki ed. 2d ed. 2011). Inthis scenario a litigant or potential litigant, with full knowledge that the information is sheltered by privilege intentionally discloses the information subject to the litigation privilege to a third party. Aherne v. Chang, 2011 ONSC 3846 , 337 D.L.R. 4th 593, 597-98(Ont. Super. Ct.

J. 2011) (“the defendant’s voluntary disclosure of surveillance evidence to a health practitioner for the purposes of adefence medical has the consequence that the surveillance evidence should be immediately disclosed to the plaintiff”) ; S. & K.Processors Ltd. v. Campbell Ave. Herring Producers Ltd., (BC SC), [1983] 4 W.W.R. 762, 764 (B.C. Sup. Ct.) (alitigant voluntarily waives privilege if he “knows of the existence of the privilege ... [and] voluntarily evinces an intention to waive that privilege”); United States v.

Jones, 696 F. 2d 1069, 1072 (4th Cir. 1982) (“Any voluntary disclosure by the client to a third party waivesthe privilege ... to a specific document disclosed”) & Sicpa North America Inc. v. Donaldson Enterprises Inc., 430 A. 2d 262, 265 (N.J.Super. Ct. 1981) (disclosure of confidential information for settlement purposes constituted waiver). [45] Privilege may also be waived by implication. The Law of Privilege 242 (B. Thanki ed. 2d ed. 2011) & 8 J. Wigmore,Evidence in Trials at Common Law 634 (McNaughton rev. 1961).

This is the case even though the litigant or potential litigant may nothave disclosed the privileged document to a third party. It is enough that the litigant or potential litigant acts in a manner which makes the continuation of the privilege inappropriate. C. Tapper, Cross & Tapper on Evidence 472 (11th ed. 2007); The Queen v. Stone, (SCC), [1999] 2 S.C.R. 290, 348 (defence counsel waived litigation privilege in a psychiatrist’s report by referring to it in anopening statement to the jury); Marion v.

Wawanesa Mutual Insurance Co., 2004 ABCA 213 , [2004] 9 W.W.R. 533, 535 (AltaC.A.) (“Waiver of privilege can implicitly occur when a party takes a position inconsistent with that privilege”); Roger v. Hunter, (BC SC), [1982] 2 W.W.R. 189, 191 (B.C. Sup. Ct. 1981) (by relying on defence of legal advice the defendant impliedly waived solicitor-client privilege”); Hollins v. Powell, 773 F. 2d 191, 196 (8th Cir. 1985) (“Waiver will be implied when a client hastestified concerning portions of the attorney-client communications”); Hay v. University of Alberta Hospital, (ABKB), 69 D.L.R. (4th) 755, 761 (Alta.

Q.B. 1990) (“the right of the patient to confidentiality ceases when he puts his health in issue byclaiming damages in a lawsuit”); The Queen v. Campbell, (SCC), [1999] 1 S.C.R. 565, 614-16 (RCMP directed todisclose legal advice from the Department of Justice about the lawfulness of a reverse sting because of a claim the officer acted on legaladvice) & Singleton v. State, 522 P. 2d 1221, 1222 (Nev. 1974) (the accused waived attorney-client privilege by calling former attorneysto testify about his mental state as part of an insanity defence). 3.

By Voluntarily Providing Documents the Plaintiff Knew Were Privileged to Dr. Naidu, a Third Party, the Plaintiff Has WaivedPrivilege [46] The plaintiff, acting through his counsel, voluntarily waived the protection of litigation privilege. Plaintiff’s counselunderstood that the documents were shielded from scrutiny by third parties because of the litigation privilege principle. He said so in hisMay 2, 2012 letter to defendant’s counsel: “I am not sure why I would send you the reports I sent to Dr. Naidu.

They are privileged”.And plaintiff’s counsel also appreciated that he had delivered the privileged documents to a third party. They did not make their way toDr. Naidu through misadventure. [47] This is a classic example of voluntary waiver of privilege. [48] Had Dr. Naidu not examined the reports, the conclusion would have been the same. Kane v. University of British Columbia, (SCC), [1980] 1 S.C.R. 1105, 1116 & Kanda v. Government of Malaya, [1962] A.C. 322, 337 (P.C.) (Malaya). But hedid. His report acknowledges this. D.

Fairness Supports a Determination That the Litigation Privilege Is Lost [49] A plaintiff traffic accident victim who is compelled to disclose to the defendant the medical reports provided to a certifiedexaminer has not been unfairly treated. See generally Pinder v. Sproule, 2003 ABQB 33 , [2003] 7 W.W.R. 128, 155-56 (Alta.Q.B.). [50] First, any other result would provide the plaintiff with an unfair advantage in this segment of the litigation process shaped bythe Minor Injury Regulation. The harm associated with the nondisclosure is obvious.

Nondisclosure denies the party who would be inthe best position to identify for the certified examiner misleading, incorrect or incomplete information the opportunity to do so. SeeKanda v. Government of Malaya, [1962] A.C. 322, 327 (P.C.) (Malaya). I agree with the defendant’s assertion that he must be “satisfiedthat the information provided to the Certified Examiner was not cherry-picked, edited or provided in a misleading context”.

[51] Second, in most personal injury cases the accident victim will produce before trial the health care professionals’ reportswhich this plaintiff is resisting disclosing. This will happen because of the application of rules 5.35 and 5.44(3)(

b) of the Alberta Rules ofCourt. These two rules result in the loss of litigation privilege with respect to health care professionals’ reports. But the plaintiff arguesthat a disclosure order would prejudice him because the defendant’s expert would be in a position “to formulate his opinions in the fullknowledge of the opinion evidence obtained by the plaintiff”. While this is undoubtedly true, I doubt that the disadvantage which befallsthe plaintiff is significant. Drapaka v. Patel, 2013 ABQB 247, ​ 49 (“Seeing another expert’s report does not ... undermine an expert’sopinion”).

Sooner or later the experts will be privy to the opinions of their colleagues and be forced to defend their views. Opinionswhich are suspect will be identified. See The Queen v. Stone, (SCC), [1999] 2 S.C.R. 290, 349 (“Given the fact that thereport would have to have been disclosed after Dr. Janke’s direct examination, the prior disclosure of the report cannot be said to havehad any material impact on the outcome of the trial”). [52] Third, settlements of legal disputes at the earliest possible time is in the public interest. Rule 1.2(

b) of the Alberta Rules ofCourt expressly recognizes the value of “facilit[ing] the quickest means of resolving a claim at the least expense”. This is so for severalreasons. First, settlements reduce the demand for publicly funded court services and reduce the time those litigants who are unable tosettle have to wait for a trial. Second, settlement reduces legal fees. This is good for clients. These first two reasons apply to all types oflitigation, generally speaking. In automobile accident cases, settlements advance the public good in very particular ways. There are a lotof personal injury actions. R.

Keeton & J. O’Connell, Basic Protection for the Traffic Victim: A Blueprint for Reforming AutomobileInsurance 2 (1965) (“The backlog of automobile personal injury cases presents a serious community problem of delay in the courts,affecting other kinds of cases as well”). Doctors are relieved of the burden of conducting more medical examinations, preparing reportsand testifying. This reduces the cost of litigation and makes health care professionals available for other tasks which arguably have moresocial utility.

I suspect, as well, that there is a general correlation between a traffic accident victim’s general state of well being and thesettlement of a personal injury claim. T. Ison, The Forensic Lottery 25 (“it is now well recognized that delay, coupled with theuncertainties of tort liability, is a chronic cause of compensation neurosis”). [53] Settlements are most likely to occur when the litigants are in possession of the information which allows them to come to aninformed decision as to what a court is likely to do if the matter goes to trial.

A party who has not had access to the information on whichthe certified examiner based his opinion is unable to assess the strength of the certified examiner’s opinion and the impact it will have onthe court. This introduces uncertainty into the process at a time when predictability is needed. [54] Justice Cory, as he then was, in Cook v. Ip, (ON CA), 52 O.R. 2d 289, 292-93 (C.A. 1985) stronglyendorsed the merits of adjectival rules which favoured openness: There can be no doubt that it is in the public interest to ensure that all relevant evidence is available to the court.

This is essential ifjustice is to be done between the parties. Whenever damages are claimed for injuries suffered, a review of medical records is of vitalimportance to a court’s decision. ... It is also important to the parties that they have early production of these documents. Settlement of disputes at an early date is of greatbenefit to the parties and to the judicial system.

In order to make an informed, fair and just settlement, counsel for the parties must be inpossession of all pertinent material. [55] It follows that judicial strategies which accelerate the rate at which parties collect the information that a court will study todetermine their rights and obligations are desirable. [56] There is no reason to conclude that a traffic accident victim like the plaintiff derives less benefit from a procedure whichpromotes an accelerated settlement pace than a defendant. VII. Conclusion [57] The appeal is allowed.

[ 58 ] This Court declares that the plaintiff waived privilege over the reports he sent to the certified examiner appointed under the Minor Injury Regulation . [ 59 ] The defendant is entitled to her costs. Heard on March 15 th , 2013. Dated at Edmonton, Alberta on May 7 th , 2013. Thomas W. Wakeling J.C.Q.B.A. Appearances: Connor B. Glynn Parlee McLaws LLP for the Defendant Helmut Berndt Helmut Berndt Professional Corporation for the Plaintiff