Gillis v. Roy Stutley Plumbing and Heating Ltd., 2011 NSSC 514

SUPREME COURT OF NOVA SCOTIA Citation: Gillis v. Roy Stutley Plumbing and Heating Ltd., 2011 NSSC 514 Date: 20111130 Docket: Hfx No. 183960 Registry: Halifax Between: Kathy Gillis Plaintiff v. Roy Stutley Plumbing and Heating Limited, a body corporate and the Estate of Roy Stutley Defendants Intact Insurance Company Intervenor LIBRARY HEADING Judge : The Honourable Justice Suzanne M. Hood Heard: November 23, 24, 25, 29, 30 and December 1, 2011, in Halifax, Nova Scotia Subject: Rule 55 Experts; physician ’ s narrative.

Summary: Chiropractor ’ s report tendered as physician ’ s narrative. Issue: Is a chiropractor a “ physician ” within the meaning of Rule 55? Result: Report not admissible as physician ’ s narrative.

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF NOVA SCOTIA Citation: Gillis v. Roy Stutley Plumbing and Heating Ltd., 2011 NSSC 514 Date: 20111130 Docket: Hfx No. 183960 Registry: Halifax Between: Kathy Gillis Plaintiff v. Roy Stutley Plumbing and Heating Limited, a body corporate and the Estate of Roy Stutley Defendants - and - Intact Insurance Company Intervenor Judge: The Honourable Justice Suzanne M. Hood Heard: November 23, 24, 25, 29, 30 and December 1, 2011, in Halifax, Nova Scotia

Oral Decision: November 30, 2011 Written Decision : August 10, 2012 Counsel: Brian J. Hebert and Jason May, for the plaintiff Scott C. Norton, Q.C. and Chris Madill, for the defendants By the Court (Orally): [ 1 ] Rule 55 of the Civil Procedure Rules provides that a physician ’ s narrative can be provided.

The question in this case is whether a chiropractor is a physician within the meaning of that Rule. [ 2 ] The Medical Act , S.N.S. 1995-96, c. 10 defines who is a medical practitioner at subsection 2 (s): (s) “medical practitioner” means a person who is registered in the Medical Register, Defined Register, Temporary Register or Medical Education Register; [ 3 ] The Medical Act also defines the practice of medicine at subsection 2(w): (w) “practice of medicine” includes, but is not restricted to, ... (iii) offering or undertaking to prevent or to diagnose, correct or treat in any manner or by any means, methods, devices or instrumentalities any disease, illness, pain, wound, fracture, infirmity, defect or abnormal physical or mental condition of any person, [ 4 ] Because that definition is very broad,

section 45 of the Medical Act excludes, among other professionals, chiropractors (ss (n)).. [ 5 ] The Chiropractic Act , S.N.S. 1999 (2 nd Sess.), c. 4, subsection 2(

c) defines chiropractic: (c) “chiropractic” means professional services usually performed by or under the supervision of a chiropractor and includes (

i) diagnosis, examination and treatment of persons principally by hand and without the use of drugs or surgery of the spinal column, pelvis, extremities and associated tissues, ... [ 6 ] If it were not for

section 45 of the Medical Act , chiropractors would be subject to that Act as would many others who treat people, including optometrists, psychologists, dentists, pharmacists, et cetera , many of whom have spent many years becoming qualified, some just as long as medical practitioners have. None of these are medical practitioners within the meaning of the Medical Act nor, in my view, are they “ physicians ” within the meaning of Rule 55.

[ 7 ] I am supported in this view by the wording of

section 3 of the Medical Act . That

section gives a list of words and phrases, including “ physician ” and says that any of those phrases: ... includes a person registered in the Medical Register, Temporary Register, Defined Register or the Medical Education Register who holds a licence. The Chiropractic Act has a similar section. [ 8 ] Furthermore there are two decisions which, although not binding on me, have come to the same conclusion, albeit within the context of disability insurance policies requiring the claimant to be under the treatment of a licenced physician. [ 9 ] In Gibson v.

Mutual Benefit Health & Accident Assn., 1958 CarswellMan 17 (MBQB) , the Court concluded a chiropractor did not fit within in the words “ a legally qualified physician. ” [ 10 ] In Rose v. Paul Revere Life Insurance Co., 1991 CarswellBC 304 (BCCA) , the Court concluded a psychologist was not a “ physician ” or “ licenced physician. ” It gave examples of others, including chiropractors, who examine and care for the sick, but are not “ properly described as physicians. ” [ 11 ] Accordingly I conclude that Dr. Yuen ’ s report is not admissible as a treating physician ’ s narrative. Justice Suzanne M. Hood