Vu v Hope, 2017 ABQB 136

Court of Queen’s Bench of Alberta Citation: Vu v Hope, 2017 ABQB 136 Date: 20170302 Docket: 0701 07772 Registry: Calgary Between: Sang Van Vu Respondent (Plaintiff) - and - Stephen M.K. Hope Professional Corporation and Stephen M.K. Hope Applicants (Defendants) _______________________________________________________ Decision of the Honourable Mr. Justice W.A. Tilleman _______________________________________________________ Introduction [ 1 ] This is an application by the Defendants, Stephen M.K. Hope and Stephen M.K. Hope Professional Corporation, to order the Plaintiff, Mr.

Sang Van Vu, to make himself available next month for two independent medical examinations. In this application, I deal with three issues: (1) whether Form 37 prevents the Defendants from having the Plaintiff undergo an IME; (2) whether for trial, the specializations of the parties’ experts must align; and (3) whether Rule 8.16 limits the parties’ ability to call more than one expert witness.

Summary of Facts [ 2 ] The claim underlying this application is a professional negligence action. Mr. Vu is suing his former lawyer for failing, amongst other things, to file a statement of claim concerning a car crash. For the purpose of this application, only the following facts are relevant. [ 3 ] On September 15, 2014, both parties signed and filed Form 37. Under Rule 8.4 of the Alberta Rules of Court , Alta Reg

124/2010 (the “ Rules ”), the parties are required to file Form 37 when requesting trial dates. Amongst other things, filing Form 37 “constitutes a binding mutual representation to the opposite party that...no further steps will be taken by either party save to proceed to trial” ( Benc v Parker , 2016 ABCA 82 at para 11 [ Benc ]).

In other words, Form 37 is a certification of trial readiness. [ 4 ] Shortly after that, on September 24, 2014, counsel for the Plaintiff contacted the Defendants’ counsel informing him that “we have been in touch with the trial coordinator and there is a 2 week trial available beginning June 15, 2015”. The Defendants’ counsel replied on September 25, 2014, stating “we advise that counsel is available for those dates”. [ 5 ] The Defendants believed that a trial date was set for June 2015. However, on May 27, 2015, the Defendants’ counsel received a cancellation voicemail from the trial coordinator.

In her voicemail, the trial coordinator stated: I’m returning [your] call...about whether [the] Vu [matter] was scheduled for June 15...No. I don’t have that matter scheduled. It was originally booked, but counsel were advised, probably Mr.

Tawkin [counsel for the Plaintiff], was advised that the expert reports were not complete, and so therefore we could not book trial dates based on Form 37....Vu is not proceeding on that date it [ sic ], it’s never been booked or it’s never been booked properly; it was cancelled because of that. (emphasis added) [ 6 ] The Defendants’ counsel then attempted to contact the Plaintiff’s counsel to

schedule a trial date. [ 7 ] Much later, on January 12, 2016, the parties entered into a consent Order [1] signed by Justice Martin. The Order set the trial down on the first available dates after October 2016. The Order also provided that: 1) The Plaintiff was to obtain and provide his expert reports by July 1, 2016; 2) The Defendants were to obtain and provide their rebuttal expert report by September 1, 2016; and 3) The Plaintiff was to obtain and provide his surrebuttal expert report by October 1, 2016. [ 8 ] After setting down the trial date, the Plaintiff underwent an IME on April 5, 2016.

The Plaintiff was assessed by Dr. Quickfall, a psychiatrist/neuropsychiatrist. On June 30, 2016, the Plaintiff provided two expert reports to the Defendants. These two reports were written by Dr. Toth, a neurologist, and Dr. Quickfall. [ 9 ] In July 2016, the parties entered into a mediation; by mutual agreement, they suspended the dates for exchange of expert reports in Justice Martin’s Order. The mediation occurred in September 2016; however, it was unsuccessful. [ 10 ] In November 2016, the Defendants requested that the Plaintiff attend for medical examinations with Dr. Wong and Dr. Pachet.

However, the Plaintiff refused. Therefore, the Defendants brought this application. Issue 1: Does Form 37 prevent the Defendants from having the Plaintiff undergo IMEs? Position of Parties [ 11 ] The Plaintiff argues that by signing Form 37 the Defendants were certifying that “any medical examination and report under

Part 5, Division 3 is complete” ( Rule 8.4 (3) (

d) of the Rules ). Further, the Plaintiff points to the recent Alberta Court of Appeal decision Benc at para 11 for the proposition that signing Form 37 “constitutes a binding mutual representation to the opposite party that...no further steps will be taken by either party save to proceed to trial”. The Plaintiff argues that he is allowed to rely on these representations. Further still, the Plaintiff argues that there was no mutual error or unilateral mistake in completing Form 37. [ 12 ] The Defendants argue that Form 37 was signed and filed to secure a trial.

However, the trial coordinator could not book a trial date because the expert reports were not completed. Further, the Defendants point to Justice Martin’s Order, which was entered into after Form 37 was filed. The Defendants argue that Justice Martin’s order, which set out dates for the exchange of expert reports, takes precedence over Form 37. Further still, the Defendants point to the fact that the Plaintiff was examined in April 2016 in order to prepare an expert report.

The Defendants argue that it is unfair for the Plaintiff to state that the Defendants should be bound by the representations in Form 37 while the Plaintiff should not be. Lastly, the Defendants distinguish Benc , arguing that Form 37 can be filed to secure a trial date prior to the exchange of expert reports. Decision [ 13 ] Applications in court are preparatory to going to trial. Form 37 is meant to signify that both parties are ready for trial.

Indeed, signing Form 37 “constitutes a binding mutual representation to the opposite party that...no further steps will be taken by either party save to proceed to trial” ( Benc at para 11 ). Signing Form 37 is significant and serious. [ 14 ] In accordance with Rule 8.4, the parties confirmed in Form 37 at para 5(

c) that “all required medical examinations and reports under

Part 5, Division 3 of the Alberta Rules of Court are complete”. However, this was not the case. The Plaintiff and the Defendants still had to conduct medical examinations. The Plaintiff, of his own accord, underwent an IME on April 5, 2016 and the Defendants requested for the Plaintiff to make himself available for two IMEs in November 2016. Based on these two facts, the only reasonable conclusion I can find is that no medical examinations and reports were complete when Form 37 was signed and filed. Further, Form 37 was rejected by the trial coordinator – apparently because the expert reports were not complete at that point. [ 15 ] Benc , when discussing Form 37, stated at paragraph 11:

the completion of a Form 37 constitutes, in our opinion, an undertaking in the throes of litigation by one party to another that absentmutual error or unilateral mistake in completing the Form (in which case an application for relief may be brought before a judge), theplaintiff and the defendant will take no further pre-trial steps. (emphasis added) [16] At best, this was a “mutual error” in Form 37. Both parties stated that all medical examinations were complete when this wasnot the case. The fact that this “error” was perhaps purposefully made does not make it any less of an error.

Therefore, Form 37 did notconstitute a “binding mutual representation to the opposite party that...no further steps will be taken by either party save to proceed totrial”. To the parties, signing Form 37 was more a means of securing a trial date than of certifying they were ready. Since both partiessubsequently sought to perform IMEs, they were not representing trial readiness to one another and certainly not to the trial coordinatorwho properly refused to accept it. [17] This Court has previously discussed the importance of Form 37 (see Tan v Swyrd, 2013 ABQB 229 [Tan]).

When certifyingtrial readiness by signing Form 37, “counsel must never forget that they are officers of the court and that the judicial process demandsmuch of them. They must always act with integrity and honour” (Tan at para 65). I am not prepared to apportion blame to only one partyin this case only because the blame is shared. Both parties seemed to believe that signing Form 37 was simply a formality to obtain atrial date. It is not. Form 37 signifies trial readiness; by signing Form 37, counsel is certifying to the Court that, if given a trial date, theywill be ready.

Elsewhere, this Court has stated that “judicial resources are indeed scarce” (Kent v Martin, 2013 ABQB 36 at para 23).Given this scarcity, it is all the more important for counsel to fully respect the meaning of Form 37. Trial time is hard to find; indeed trialtime for 3 week civil trials is now being booked three years out. [18] Further, I am somewhat surprised that Justice Martin, when making her order on this matter, was not informed by counsel thatthe trial coordinator had rejected Form 37 and full disclosure on everything related to it.

Though I could be wrong, I find that this lack ofdisclosure explains why Justice Martin’s order seems to adopt Form 37 in the

preamble. Had she been aware that Form 37 was rejectedby the trial coordinator, I am certain she would have included a provision in her order for further medical examinations, or issued anorder with different conditions. [19] Given the fact that Form 37 contained a “mutual error” and that the Plaintiff subsequently sought an IME from Dr. Quickfall,it would unjust and unfair to prevent the Defendants from conducting their own IMEs of the Plaintiff.

Therefore, I have set out a timelinefor the IMEs and the subsequent exchange of reports in the table below. [20] Finally, I wish to speak positively about the parties’ attempt to mediate the lawsuit. Collaboration and mediation find favourin Rule 1.2(2)(c); 1.2(3); 4.16-4.20 of the Rules. That said, fairness (such as having experts on both sides) is based on discipline and strictcompliance with court forms and those forms are not negotiable by counsel unless expressly waived off by a judge who has had fulldisclosure of the facts and input from decisions of the trial coordinator.

Issue 2: Do the specializations of the Defendants’ experts haveto align with the specialization of the Plaintiff’s experts? Position of Parties [21] The Plaintiff argues that the Defendants’ proposed experts are not in the same discipline as the Plaintiff’s experts andtherefore cannot comment on the opinion of the Plaintiff’s experts. He argues that Justice Martin’s order did not envisage calling expertsin different disciplines. Therefore, the Plaintiff argues the Defendants’ experts should not be able to conduct IMEs on the Plaintiff.

Inoral argument, the Plaintiff’s counsel pointed to Justice Mason’s decision in Parenteau v Courtesy Corner Tourist Service (1993), (AB KB), 13 Alta LR (3d) 269 at para 27 (ABQB) [Parenteau], which stated: When a plaintiff in a personal injury case engages a health care specialist to perform examinations and tests upon his or her person tosubstantiate a claim of physical or other impairment and elects to call such an expert at trial, fairness dictates that as part of his or her trialpreparation the defendant be permitted to conduct similar examinations and tests by an expert in the same health care discipline. [22] The Plaintiff argues that the Defendants’ experts are not in the same health care discipline as the Plaintiff’s experts; namely,the Defendants’ experts, a neurosurgeon and neuropsychologist, apparently cannot comment on the opinion of the Plaintiff’s experts, aneurologist and a neuropsychiatrist.

Therefore, the Defendants’ experts should not be able to conduct IMEs on the Plaintiff. [23] Lastly, the Plaintiff argues that it will have to procure new experts to respond to the Defendants’ experts as they are not in thesame specialization. [24] The Defendants argue, as per Rule 5.35(2)(

b) of the Rules, rebuttal reports may contain “issues not raised in the initial expertreport”. Further, they argue that Justice Martin’s Order allows for the Plaintiff to serve a surrebuttal report that responds to theDefendants’ rebuttal report. Lastly, the Defendants argue that the specializations of the parties’ experts are substantively similar. Decision [25] Where the Plaintiff has been examined by a health care professional of his choosing, the Rules allow the Court to order thePlaintiff to be medically examined by a health care professional of the Defendants’ choosing. Rule 5.41(4) of the Rules states:

(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 maybe proffered as an expert, the Court may order that the plaintiff be the subject of a medical examination by one or more health careprofessionals of the defendant’s choice.

[ 26 ] The Rules define “health care professional” as: “health care professional” means (

a) a person entitled to practise a profession as (

i) a member of the College of Physicians and Surgeons of Alberta under the Health Professions Act , ... (vi) a psychologist under the Health Professions Act , ... [ 27 ] In this case, the Defendants are asking for the Plaintiff to be examined by a neurosurgeon and a psychologist. Both are “health care professionals” within the meaning of the Rules . Therefore, Rule 5.41(4) allows the Defendants to select these professionals to examine the Defendant. The Rules do not require the specialization of the Defendants’ experts to perfectly align with the Plaintiff’s experts.

Therefore, the Defendants are entitled to call experts of their choosing. Whether it is helpful to the trial judge, is their risk. [ 28 ] The Plaintiff pointed to Parenteau and argued that the case stood for the proposition that the Defendants are only allowed to examine the Plaintiff by an expert in the “same health care discipline” (para 27). Without determining whether the parties’ experts are exactly in the “same health care discipline”, I note that Parenteau was decided under the old Rules .

Further, the issue in Parenteau was whether an occupational therapist was a “qualified medical practitioner” within the meaning of Rule 217 – the provision that allowed for medical examinations. While the Court held that occupational therapists were not “medical practitioner” within the meaning of Rule 217, the Court allowed for the Defendant’s occupational therapist to examine the Plaintiff because “fairness dictates that...the defendant be permitted to conduct similar examinations...by an expert in the same health care discipline” (para 27).

In other words, in Parenteau the Court was expanding the Defendant’s ability to medically examine the Plaintiff past what the old Rules strictly allowed. Under the new Rules , which in this respect are more expansive than the old, the Defendants’ experts are allowed to examine the Plaintiff. Therefore, the expert principle from Parenteau does not apply in this case, but the fairness principle does apply. Issue 3: Does Rule 8.16 limit each party’s ability to call more than one expert witness?

Position of Parties [ 29 ] In oral argument, the Plaintiff pointed to Rule 8.16(1) to argue that the Defendant was limited to calling one expert witness. Rule 8.16(1) states: Unless the Court otherwise permits, no more than one expert is permitted to give opinion evidence on any one subject on behalf of a party. [ 30 ] The Defendants argued that its experts are giving evidence in different subject areas. Decision [ 31 ] The Defendants are seeking the expert opinion of a neurosurgeon and a neuropsychologist.

Rule 8.16(1) clearly states that, “ unless the Court otherwise permits , no more than one expert is permitted to give opinion evidence on any one subject on behalf of a party” (emphasis added). Parties regularly call more than one expert. Rule 8.16(1) only prevents calling more than one expert where the experts are giving opinion evidence on the same subject matter. Further, Rule 8.16(1) explicitly allows the Court to override the “one expert...on any given subject” rule in any event. [ 32 ] The Plaintiff himself has argued that a neuropsychiatrist cannot comment on the opinion of a neuropsychologist.

Presumably his position rests on the belief that neuropsychiatry and neuropsychology are different subject matters. It is unfair for the Plaintiff to now claim that the Defendants are precluded from calling both a neurosurgeon and neuropsychologist. Again, Rule 8.16(1) only operates where the experts are giving opinion evidence on the same subject matter. Certainly, if the Plaintiff believes that neuropsychiatry and neuropsychology are different subject matters, than neurosurgery and neuropsychology must also be different subject matters.

Therefore, Rule 8.16(1) does not prevent the Defendants from calling their two experts. Conclusion The application is granted. The timeline for the various steps in this action before trial are outlined as per the table below. . February 27, 2017 at 3:00 pm The parties shall attend a conference with the Court pursuant to Rule 4.10(1) and 4.10(2)(b),(

e) and (f).

March 20, 2017 from 9:00 am to 10:30 am The Plaintiff shall attend an examination with Dr. Wong at Unit 1, 9250 MacLeod Trial, SE, Calgary, Alberta. March 27, 2017 from 8:30 am to 10:00 am The Plaintiff shall attend an examination with Dr. Pachet at 326, 11245 Valley Ridge Drive NW, Calgary, Alberta. April 28, 2017 by 4:00 pm The Defendants provide their rebuttal expert reports to the Plaintiff’s counsel. Also, the raw psychological data produced from Dr. Pachet’s examination shall be provided to an expert of the Plaintiff’s choosing.

May 31, 2017 by 4:00 pm The Plaintiff provides his surrebuttal report to the Defendants’ counsel. Heard on the 9 th day of February, 2017. Dated at the City of Calgary, Alberta this 2nd day of March, 2017. W.A. Tilleman J.C.Q.B.A. Appearances: Edward Tawkin Tawkin Law Offices for the Respondent/Plaintiff Garth Paulson Verjee & Associates for the Applicant/Defendant