JOHN BRIAN HALL Plaintiff - v. -, 2003 ABQB 268

Hall v. Hallonquist, 2003 ABQB 268 Date: 20030320 Action No. 9803 06978 IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF EDMONTON BETWEEN: JOHN BRIAN HALL Plaintiff - and - JONATHAN BRUCE HALLONQUIST & JOHN DOE 1 & JOHN DOE II Defendants _______________________________________________________ MEMORANDUM OF DECISION of the HONOURABLE MR. JUSTICE DONALD LEE _______________________________________________________ APPEARANCES: Greg Miller Martin G. Schultz & Associates

for the Plaintiff James M. Kalyta Parlee McLaws LLP for the Defendant [ 1 ] The issue in dispute in this matter is whether the Defendant Mr. Hallonquist should be allowed an extension of the deadline specified in the Conditional Certificate of Readiness that any medical assessment of the Plaintiff be completed by September 1, 2002. This Conditional Certificate of Readiness was further to the pre-trial conference I held in this matter on October 5, 2001. [ 2 ] This matter involves two motor vehicle accidents that were being tried together, one which occurred on April 16, 1996, and the other on May 6, 1996.

It is alleged that both of these motor vehicle accidents caused injury to the Plaintiff Mr. Hall. [ 3 ] The Plaintiff claims neck and back injuries including a disc herniation with associated 10 percent whole body impairment, past income loss and future income loss. [ 4 ] This particular action between the Plaintiff and the Defendant Mr. Hallonquist arises from the second of the two accidents in the spring of 1996, which took place three weeks apart.

The action arising from the first motor vehicle accident was very recently settled in February 2003. [ 5 ] The Plaintiff refuses the Defendant’s requested extension given that it is now far past the original deadline, and given that the trial is scheduled to commence October 20, 2003. [ 6 ] The Plaintiff submits that the Defendant Hallonquist’s request for an extension at this time is unreasonable given that they have long known, or should have known, that they required an expert opinion on the cause of the Plaintiff’s disc herniation. [ 7 ] Mr.

Miller, counsel for the Plaintiff, also submits that the Defendant Hallonquist cannot justify his delay in obtaining this medical assessment on the settlement negotiations, as it is submitted that his counsel Mr. Kalyta has never made any genuine effort to settle the action. [ 8 ] Mr. Miller advises that Mr. Kalyta stated in December 2002 that his client would not require any expert reports, and that they would rely on Mr. Hall’s evidence at discovery. The first time Mr. Kalyta informed Mr.

Miller apparently that he wished to obtain an independent medical assessment was during the February 24, 2003 telephone conversation, following Mr. Miller’s February 19, 2003 letter indicating that the April 16, 1996 first motor vehicle accident claim had been settled. [ 9 ] Mr. Kalyta submits that circumstances have changed recently as a result of this settlement, and that the parties are so far apart in their settlement discussions that a trial between these parties now appears inevitable. By agreement, neither Mr. Miller nor counsel for the Defendant in the first motor vehicle accident Mr.

Cox will disclose the amount of their settlement. [ 10 ] The Defendant Hallonquist submits that Mr. Hall’s own evidence appears to definitely indicate that the second action is not 50 percent responsible for the disc herniation. Mr. Miller submits that the Defendant Hollonquist is 50 percent responsible for the disc herniation pursuant to the medical report of Dr. Lavoie, and pursuant to the Contributory Negligence Act.

[ 11 ] Counsel for Hallonquist suggests that there is a definite need to address the causation issue now, and to have a report to rebut Dr. Lavoie’s report on this issue so as to prevent the possibility that Mr. Hall might be grossly over compensated for his alleged injuries, particularly in light of his own evidence. CONCLUSION [ 12 ] There are various assertions, and allegations being made by both counsel with respect to their dealings over the past few years, which would be difficult for me to attempt to resolve with any certainty.

I believe that these dealings generally are not central to my ultimate decision in this matter.

I conclude that irrespective of who is most at fault in terms of the interactions between these counsel during the last few years, that neither counsel has conducted themself improperly. [ 13 ] Even if I am mistaken in this conclusion, the overriding consideration in this matter is to allow all parties a reasonable opportunity to produce the best evidence they can prior to trial with respect to this case, without prejudicing the other party. [ 14 ] I am satisfied that irrespective of the delay that may have been occasioned in this matter by counsel for the Defendant Mr.

Hallonquist, it is in the interests of justice that he now be allowed to have an independent medical examination of Mr. Hall given some of Mr. Hall’s own evidence at discovery. I conclude that the Defendant Mr. Hallonquist is entitled, within reason, even at this stage of the proceedings to have an independent medical examination to establish his position that the May 6, 1996 motor vehicle accident caused a very mild aggravation of a pre-existing condition. [ 15 ] To refuse to allow Mr.

Kalyta’s client his medical assessment at this time would not be in the best interests of the administration of justice, because of the resulting possibility that Mr. Hall could be grossly overcompensated. Further I believe that while it is late, adjustments can be made in the time line so as to eliminate, or certainly minimize, any possible prejudice to Mr. Hall. It is also possible that some of the delay in this matter by Mr. Kalyta can be traced to the settlement negotiations as described earlier that just recently concluded. [ 16 ] Therefore I am granting this request by Mr.

Kalyta for an independent medical examination of Mr. Hall. I accept Mr. Miller’s submission that having allowed this examination, that he should also be allowed a reasonable period of time for his experts to update their opinions, which would mean that the Rule 218.1 deadlines will have to be varied. [ 17 ] Hopefully counsel can come up with an agreed upon time line for me given my decision to allow the independent medical examination, which will accommodate everyone’s schedule, and which will allow the trial to proceed as previously scheduled.

Counsel may provide me with their agreed upon time line, or their individual proposed time lines, and I will order the appropriate dates as soon as possible. HEARD on the 17 th day of March, 2003. DATED at Edmonton, Alberta this 20 th day of March, 2003. __________________________ J.C.Q.B.A.