Reid v Bitangcol, 2016 ABQB 122

Court of Queen ’ s Bench of Alberta Citation: Reid v Bitangcol, 2016 ABQB 122 Date: 20160301 Docket: 1003 15302 Registry: Edmonton Between: Adam Jeffrey Reid and Her Majesty the Queen in Right of Alberta Respondents/Plaintiffs - and - John C. Bitangcol, Allan S. Tang, Ross A. Purser, Richard James Turner, Alan Vernon Sobey, Stanley A. Poplawski, Covenant Health, formerly known as Caritas Health Group, John Doe, and Jane Doe Applicants/Defendants _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.H.

Goss Regarding Production of Records _______________________________________________________ Introduction [ 1 ] The Plaintiffs in this action claim medical negligence in the care of a 16-year-old male who sustained a spinal cord injury following a type B aortic dissection in March 2007. [ 2 ] The Defendants apply for an order compelling the Plaintiffs to produce certain records under Rule 5.44.

Background [3] In July 2014, the Plaintiffs served on the Defendants all the expert reports on which they intend to rely at trial, pursuant toRule 5.35 of the Alberta Rules of Court, Alta Reg 124/2010, including reports of Dr. John F. Keegan (Keegan Report), Dr. David R.Atkinson (Atkinson Report), and Christine Whitelaw regarding Mr. Reid’s occupational performance evaluation (Whitelaw Report). TheWhitelaw Report and the Atkinson Report contain references to the Independent Comprehensive Vocational Evaluation Report of R.D.Michaels (Michaels Report).

The Keegan and Atkinson Reports contain expert opinions in respect of Mr. Reid’s psychological andvocational status based on multiple assessments and testing of Mr. Reid. [4] Defence medical examinations (MEs) have taken place pursuant to Rule 5.41 by: Dr. Hill, a specialist in physical medicineand rehabilitative medicine, in February 2014; Mr. Berger, an occupational therapist, on August 27, 2014; and Dr. Mandell, a vocationalpsychologist, on June 2 and 3, 2015. [5] Despite the Plaintiffs’ requests for the reports of all MEs under Rule 5.44(3)(a), the Defendants have not delivered thereports. The report of Dr.

Hill is no longer in issue. [6] The Plaintiffs wish to move the matter toward trial and to obtain the Defendants’ rebuttal reports. The Defendants apply foran order directing the Plaintiffs to: (

a) produce the Michaels Report of March 25, 2010; and (

b) make arrangements with their expert witnesses, Dr. Keegan and Dr. Atkinson, to provide to the Defendant’s expert witness, Dr.Mandel: (

i) raw test data underlying the Keegan Report regarding the Plaintiff Adam Reid’s neuropsychological status and functioning,including a list of tests that were done, copies of test forms, test scores and computer printouts; and (ii) raw test data underlying the Atkinson Report regarding Mr. Reid’s vocational psychological status and employability, including alist of tests that were done, copies of test forms, test scores and computer printouts.

Parties’ Positions [7] The Defendants take the position that the Michaels Report and the raw test data underlying the Keegan and AtkinsonReports are relevant and material records not protected by privilege. They submit that Dr. Mandel requires the raw test data to completehis rebuttal report, and it should be produced now rather than waiting for disclosure at trial in order to avoid unnecessary cost and delayin keeping with the objectives set out in Rules 1.2 and 5.1.

They cite Erketu v Wilson, 2013 ABQB 247, 560 AR 260 and Andre vWeibe, 2000 ABQB 946, 284 AR 378, arguing that the reasoning in those cases with respect to plaintiffs’ expert reports applies todocuments, test protocols and raw data underlying the expert reports. [8] The Defendants further argue that any privilege over the Michaels Report was lost once the Plaintiffs served the WhitelawReport which referenced the Michaels Report in Appendix E: List of Documents Reviewed, citing Rodriguez v Woloszyn, 2013 ABQB269, 554 AR 8.

They submit that the Plaintiffs waived privilege in the Michaels Report when they provided it to Ms.

Whitelaw and Dr.Atkinson, and it is fair and consistent with Rules 1.2 and 5.1 that the Michaels Report be disclosed to enable the Defendants’ experts tocomplete their rebuttal reports. [9] The Plaintiffs argue that the law is clear that materials provided to a party’s expert, regardless of the extent to which it mayhave informed the expert’s opinion, are privileged and not subject to production, citing Vokes v Backer, (AB KB),[1996] AJ No 1230, 194 AR 343, Grammer v Langpap, 2014 ABQB 74, 61 CPC (7th) 398 and Rodriguez.

The Plaintiffs submit thatErketu does not assist the Defendants, as it does not address documents, test protocols and raw data underlying expert reports. [10] The Plaintiffs submit that litigation privilege is not lost over documents, test protocols and raw data collected, reviewed andrelied upon by a party’s experts whose reports are served on the other side pursuant to the Rules of Court until that expert is called attrial, and certainly not until the defendants have promptly delivered their ME reports to the other.

The Plaintiffs further submit that thereis no evidence before the Court that the requested information is required by the Defendants’ medical experts to complete their reports ofthe MEs conducted some time ago. They argue that the Defence medical experts are not entitled to hold out for further informationbefore completing their reports. The Plaintiffs argue that Rule 5.44(3) provides a remedy by entitling the Defendants, on delivery of theirDefence medical reports under subsection (a), to request disclosure under subsection (

b) of every medical examination previously orsubsequently made. The Plaintiffs argue that Rule 5.44(3) governs the order in which disclosure must occur. [11] The Plaintiffs distinguish Rodriguez on the basis that it dealt with statutory delegates in a litigation process shaped by theMinor Injury Regulation, Alta Reg 123/2004. They explain that they did not serve the Michaels Report on the Defendants as they do notintend to rely on it at trial, although they did provide it to a number of their experts. The Plaintiffs note that Dr. Atkinson refers to theMichaels report as “preliminary, and at best incomplete”.

Further, the results from Mr. Michaels’ assessment are now more than threeand a half years old, and therefore his opinion may well have changed given further information about Mr. Reid’s condition and hiscommunity adjustment in the interim. Analysis Underlying documents, test protocols and raw data

[12] In Erketu v Wilson, 2013 ABQB 247, 560 AR 260 the plaintiffs in two actions had refused to provide their expert reports untilan ME was ordered, or until the right to an ME was waived. The defendants wanted the plaintiffs to provide their expert reports underRule 5.35 prior to deciding whether it was necessary to apply for MEs of the plaintiffs pursuant to Rule 5.41.

The Masters in both casesheld that the plaintiffs were not required to provide expert reports before the defendants decided to waive or request an ME. [13] On appeal, Nielsen J. noted that Rule 5.35 generally reflects the plaintiff’s onus to advance its action. He determined thatthere is nothing in the Rules preventing a defendant from waiting to rely on Rules 5.41 and 5.44 until after a plaintiff has disclosed itsexpert report(

s) under Rule 5.35, as nothing in the Rules dictates that steps pursuant to Rules 5.41 and 5.44 must occur before theplaintiff discloses pursuant to Rule 5.35. Accordingly, Nielsen J. concluded that the Masters had erred in refusing to order the plaintiffsto produce their expert medical reports before the defendants elected to conduct MEs of the plaintiffs, and in ordering the defendants toschedule any MEs or waive the same within 60 days. In accordance with Rule 5.34, he ordered the plaintiffs to disclose the expertmedical reports on which they intended to rely at trial within 90 days.

However, Nielsen J. was not called upon to consider whether theplaintiffs were required to disclose documents, test protocols and raw data underlying the expert reports. [14] In Andre v Weibe, 2000 ABQB 946, 284 AR 378 the plaintiff suffered personal injuries in a motor vehicle accident, wasexamined by two doctors at the defendants' request, and was served with both doctors’ reports. The plaintiff then brought an applicationto compel production of doctors' files, notes, test protocols and results obtained by the doctors in connection with the examination,pursuant to former Rule 217(7).

The Court granted the application regarding some of the materials, citing the plain wording of Rule217(7) and the objective of the Rules of Court of avoiding surprise and trial by ambush: 7 Rule 217(7) is a statutory exception to litigation privilege as it relates to expert reports sought by a defendant under rule 217. Therule mandates that such reports be disclosed to the plaintiff. The rule also mandates that these reports contain the "findings" made by theexpert. "Findings" mean the factual underpinnings that support an expert's conclusions or opinions: Kaptsis v. Macias (1990), (ON SC), 74 O.R. (2d) 189 (Ont.

H.C.). So, the test protocols and the raw data of test results arising from the examinationwould normally be the underpinnings that support an expert's conclusions and therefore should be disclosed: see also, Jaworski v.Wilkinson (1966), (MB KB), 60 D.L.R. (2d) 377 (Man.

Q.B.), at 385. [15] The Court further held that the plaintiffs were entitled to disclosure of all facts upon which the inferences and conclusionscontained in the report were based insofar as the report failed to precisely set forth those facts, quoting from S & K Processors Ltd vCampbell Avenue Herring Producers Ltd, (BC SC), [1983] 4 WWR 762 (BCSC). The Court held that these findingson privilege were applicable to disclosure under Rule 217(7) and that on the facts of that case, disclosure of the test protocols and rawdata from tests, including test score

summary sheets, questionnaires and behavioural observations, would best satisfy the objects of theRules of Court. However, the ME in that case had already taken place, and the defence’s medical reports had been provided to theplaintiff. [16] In Vokes v Backer, (AB KB), [1996] AJ No 1230, 194 AR 343, McCallum J. overturned a Master’s ordergranting immediate production to the defendant of two expert reports of the plaintiff and the raw test data and protocols of two of the medical experts, in order to preserve the true objectivity of the defence medical inquiries.

The defendant wanted these reports beforecommencing the second defence ME, arguing that the contents of the report would assist in the choice of the second expert. The Courtstated: 5 I do not think that a plaintiff should have to forego the privilege attached to its expert reports until it has been provided with thefinal defence DME report.

I am persuaded by the argument that to be truly objective as opposed to being potentially adversarial, the Rule217(3) expert should be working independently… [17] The plaintiff in Grammer v Langpap, 2014 ABQB 74, 61 CPC (7th) 398 voluntarily produced expert reports of psychologistsprepared in anticipation of litigation, and stated that he would forward underlying documents related to preparation of expert reports, withthe proviso that the plaintiffs were not waiving any rights to claim privilege over charts or files of their experts.

Master Smart dismissedthe defendant’s application for production of all of the underlying documents related to preparation of the expert reports, noting thatlitigation privilege, unlike solicitor-client privilege, is a continuing privilege and is not automatically waived by disclosure.

Master Smartcited Chernetz v Eagle Copters Ltd, 2005 ABQB 712, 385 AR 238 for the proposition that the compelled disclosure of an expert's reportbefore trial pursuant to Rule 218.1 resulted in a waiver of privilege in that document, but privilege was not waived in related documentsnot subject to compelled disclosure unless and until the report was introduced into evidence. In Chernetz, McMahon J. hadacknowledged concerns regarding trial delays or adjournments but nonetheless concluded that the issue of privilege was too fundamentalto be trumped by trial efficiency.

Master Smart in Grammer noted the limited ability to question experts before trial under the Rules, andthe absence of clear language in the rules altering litigation privilege. He declined to order the production of the experts’ underlyingdocuments despite the laudable objectives of the foundational rules. [18] I am not satisfied that the common law in Alberta supports the Defendants’ application for disclosure of documents, testprotocols and raw data from tests underlying the expert reports on which plaintiffs intend to rely for the completion of MEs under Rule5.44.

As stated in Erketu, disclosure of the plaintiffs’ expert reports upon which they intend to rely at trial must occur first under Rule5.35. However, this mandatory disclosure does not include disclosure of documents, test protocols and raw data from tests underlying theexpert reports: Chernetz; Grammer. [19] A party delivering a detailed written report of the health care professional’s findings and conclusions under Rule 5.44(3)(

a) isentitled to receive, on request, every ME previously or subsequently made of the physical or mental condition of the person under Rule5.44(3)(b). The continuing litigation privilege over related documents does not disappear until Rule 5.44(3) comes fully into play, inother words, when the reports under Rule 5.44(3)(

a) have been provided, and a request has been made for Rule 5.44(3)(

b) disclosure. The Michaels Report [20] Rodriguez v Woloszyn, 2013 ABQB 269, 554 AR 8 was a personal injury action wherein the defendant had nominated acertified examiner, pursuant to the Minor Injury Regulation under the Insurance Act, RSA 2000, c I-3, to provide an opinion on whether

the plaintiff's injury was or was not a “minor injury” as defined in the regulation. The Regulation provides that where the parties disagree in this regard, either party may request that 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. The certified examiner is empowered by the regulation to request the injured person to authorize in writing the release of any relevant diagnostic, treatment or care information and may ask any relevant questions about the claimant's medical condition or history.

The plaintiff and the defendant may also deliver to the certified examiner any information that each party considers relevant to the assessment. The opinion or decision of the certified examiner is prima facie evidence that the claimant's injury is or is not a “minor injury”. [ 21 ] The plaintiff in Rodriguez had provided two expert reports to the examiner. The defendant unsuccessfully applied in Masters’ chambers for an order requiring the plaintiff to produce those expert reports, arguing that the plaintiff had waived litigation privilege over them.

On appeal, Wakeling J. (as he then was) noted that litigation privilege is based upon the need for a protected area to facilitate investigation and preparation of a case for trial by the adversarial advocate, citing Blank v Canada (Department of Justice) , 2006 SCC 39 , [2006] 2 SCR 319 at 330-31. It can be lost in two ways. First, a court may decide that a litigant or potential litigant voluntarily waived the privilege when, with full knowledge that the information is sheltered by privilege, the information was intentionally disclosed to a third party. This involves a subjective assessment.

Alternatively, a court may determine that the privilege holder has acted in a manner which undermines the reason the privilege is created, such that the continuation of the privilege becomes inappropriate, and declare the privilege lost. This requires an objective assessment. [ 22 ] Wakeling J. determined that the examiner, as a statutory delegate, had a duty to act fairly and this duty compelled disclosure of information which would affect the interests of parties affected by the examiner's decisions.

He further determined that the plaintiff had voluntarily waived the protection of litigation privilege over the expert reports by providing them to a third party, the certified examiner. [ 23 ] The Court further opined that a plaintiff traffic accident victim who is compelled to disclose to the defendant the medical reports provided to a certified examiner has not been unfairly treated for three reasons.

First, any other result would provide the plaintiff with an unfair advantage in this segment of the litigation process shaped by the Minor Injury Regulation because nondisclosure denies the party who would be in the best position to identify for the certified examiner misleading, incorrect or incomplete information the opportunity to do so. Second, in most personal injury cases the accident victim will produce before trial the health care professionals' reports which this plaintiff was resisting disclosing because of the application of Rules 5.35 and 5.44(3) (

b) of the Alberta Rules of Court . Wakeling J. acknowledged that it is undoubtedly true that, with disclosure of the plaintiff’s report, the defendant's expert would be in a position "to formulate his opinions in the full knowledge of the opinion evidence obtained by the plaintiff" but doubted that the disadvantage would be significant, citing Erketu . Sooner or later the experts will be privy to the opinions of their colleagues and be forced to defend their views, and opinions which are suspect will be identified.

Third, it is in the public interest that legal disputes be settled at the earliest possible time, as expressly recognized in Rule 1.2(b). [ 24 ] The Rodriguez case dealt specifically with privilege in the context of a certified examiner under the Minor Injury Regulation which imposes very clear and specific disclosure obligations on the claimant. In my view, Rodriguez is not authority for the

interpretation of the disclosure Rules at issue here. Provision of material to a certified examiner in that context is not equivalent to provision of a report to one’s own expert. [ 25 ] In this case, the Plaintiffs’ experts received a copy of the Michaels Report as part of the process of facilitating investigation and preparation of the Plaintiffs’ case for trial, not to assess the Plaintiff pursuant to a statutorily determined process under the Minor Injury Regulation . I find that the Plaintiffs have not waived privilege through provision of the Michaels Report to their experts in the circumstances.

Conclusion [ 26 ] Accordingly, the Defendants’ application for production is denied. Heard on the 8 th day of February, 2016. Dated at the City of Edmonton, Alberta, this 1 st day of March, 2016.

J.H. Goss J.C.Q.B.A. Appearances: Philip Tinkler for the Respondents/Plaintiffs Taryn C. Burnett for the Applicants/Defendants Bitangcol, Purser, Turner and Poplawski