Erketu v. Wilson, (2013) 560 A.R. 260 (QB)

• Judge: Nielsen, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 22, 2013
• Citations: (2013), 560 A.R. 260 (QB);2013 ABQB 247

Erketu v. Wilson (2013), 560 A.R. 260 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. MY.032

Christine Drapaka (plaintiff) v. Hemantkumar Dhirubhai Patel (defendant)

(1003 20075)

Ewnetu G. Erketu (plaintiff) v. Geordie Vern Wilson (defendant)

(1003 01799; 2013 ABQB 247)

Indexed As: Erketu v. Wilson

Alberta Court of Queen's Bench

Judicial District of Edmonton

Nielsen, J.

April 26, 2013.

Summary:

The plaintiff in a personal injury action wanted to know if the defendant would make a rule 5.41 application for an independent medical examination (ME). The defendant asserted that rule 5.41 did not require that decision to be made before the plaintiff's expert medical reports were provided.

A Master of the Alberta Court of Queen's Bench, in a decision reported at (2012), 552 A.R. 194, held that the plaintiff was not required to produce its reports until the defendant had obtained its rule 5.41 report or waived its right to apply for one. The defendant was to deliver any rule 5.41 report to the plaintiff prior to the plaintiff's provision of its expert reports. In a similar action, in a decision not reported in this series of reports, a different Master dismissed the defendant's application for a litigation plan that would require the plaintiff to produce expert reports prior to the defendant scheduling any MEs. The defendant was ordered to schedule any MEs that he wished to have conducted on the plaintiff under rule 5.41 within 60 days of the order. Both defendants appealed. The appeals were heard together.

The Alberta Court of Queen's Bench allowed the appeals. The Masters were incorrect in refusing to order the plaintiffs to produce their expert medical reports before the defendants elected to conduct MEs of the plaintiffs. The Masters were also incorrect in ordering the defendants to schedule any MEs or waive their rights to do so within 60 days. The plaintiffs were ordered, under rule 5.34, to disclose the expert medical reports that they intended to rely on at trial within 90 days.

Practice - Topic 4573.1

Discovery - What documents must be produced - Experts' reports - [See all Practice - Topic 4781 ].

Practice - Topic 4781

Discovery - Physical or psychological examination - Production of medical reports - Defendants in separate actions appealed from two Masters' decisions - The appeals involved the interplay between rule 5.35, governing the exchange of expert reports, and rules 5.41 to 5.44, regarding medical examinations (MEs) - The central issue was whether the court should order a defendant in a personal injury action to make its position known on an ME under rule 5.41 before the plaintiff had disclosed its expert reports under rule 5.35 - The Alberta Court of Queen's Bench held that nothing in the rules prevented the defendants from waiting for rule 5.35 disclosure before making a determination regarding an ME - Nothing dictated that the steps under rules 5.41 to 5.44 had to occur prior to the plaintiff's disclosure under rule 5.35 - Rules 5.35 and 5.41 to 5.44 served different purposes - Rules 5.41 to 5.44 related only to medical evidence of a litigant's condition - The unique nature of a medical claim required unique rules - A party who had put his or her physical condition in issue could not deny the opposite party the right to ascertain his or her physical condition by an ME - See paragraphs 32 to 46.

Practice - Topic 4781

Discovery - Physical or psychological examination - Production of medical reports - Defendants in separate actions appealed from two Masters' decisions - The appeals involved the interplay between rule 5.35, governing the exchange of expert reports, and rules 5.41 to 5.44, regarding medical examinations (MEs) - The central issue was whether the court should order a defendant in a personal injury action to make its position known on an ME under rule 5.41 before the plaintiff had disclosed its expert reports under rule 5.35 - The Alberta Court of Queen's Bench held that nothing in the rules prevented the defendants from waiting for rule 5.35 disclosure before making a determination regarding an ME - The court rejected the plaintiffs' argument that, if they were required to disclose their expert reports, the defendants' examiners could be biased by that information - An ME was a defendant's examination, not an independent examination - Medical examiners had an obligation to be objective and provide an honest opinion - Further, trial judges were accustomed to assessing competing expert evidence - The onus was on the plaintiffs to advance their actions - Rule 5.35 reflected that onus in requiring the party with the onus to disclose first - The plaintiffs were ordered, under rule 5.34, to disclose the expert medical reports that they intended to rely on at trial within 90 days - See paragraphs 47 to 60.

Practice - Topic 4781

Discovery - Physical or psychological examination - Production of medical reports - Defendants in separate actions appealed from two Masters' decisions - The appeals involved the interplay between rule 5.35, governing the exchange of expert reports, and rules 5.41 to 5.44, regarding medical examinations (MEs) - The central issue was whether the court should order a defendant in a personal injury action to make its position known on an ME under rule 5.41 before the plaintiff had disclosed its expert reports under rule 5.35 - The Alberta Court of Queen's Bench held that nothing in the rules prevented the defendants from waiting for rule 5.35 disclosure before making a determination regarding an ME - The court stated, "Requiring plaintiffs to provide their expert reports first has the advantage of allowing defendants to obtain the evidence that will be relied on by the plaintiffs. This provides the defendants with knowledge of the case against them and the evidence that the defendants will face at trial. It allows defendants to focus on what is truly in dispute and to determine whether or not an ME is necessary... Again, the waiving of the plaintiff's litigation privilege in this context does not result from any action on the part of the defendant, but rather the operation of Rule 5.35. The plaintiff has an onus to advance its own action." - See paragraph 57.

Cases Noticed:

Bahcheli v. Yorkton Securities Inc. et al. (2012), 524 A.R. 382; 545 W.A.C. 382; 2012 ABCA 166, refd to. [para. 11].

Opron Construction Co. v. Alberta (1989), 100 A.R. 58 (C.A.), refd to. [para. 32].

Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319; 352 N.R. 201; 2006 SCC 39, refd to. [para. 32].

Pinder v. Sproule et al. (2003), 333 A.R. 132; 2003 ABQB 33, refd to. [para. 32].

Andre v. Wiebe (2000), 284 A.R. 378; 2000 ABQB 946, refd to. [para. 35].

Petersen v. Shepard (1985), 58 A.R. 240 (Q.B.), refd to. [para. 43].

Jacobson v. Sveen et al. (2000), 262 A.R. 367; 2000 ABQB 215, refd to. [para. 46].

Soodhar v. Bagley (1999), 263 A.R. 119 (Q.B.), refd to. [para. 47].

Grayson v. Demers, [1975] 2 W.W.R. 289 (Alta. C.A.), refd to. [para. 48].

Rosario-Paquet v. Hudec (2000), 279 A.R. 319; 2000 ABQB 762, refd to. [para. 49].

Stewart Estate et al. v. TAQA North Ltd. et al., [2012] A.R. Uned. 153; 2012 ABQB 87, refd to. [para. 55].

Wade v. Baxter (2001), 302 A.R. 1; 2001 ABQB 812, refd to. [para. 55].

Soodhar v. Bagley (2003), 340 A.R. 178; 2003 ABQB 524, refd to. [para. 56].

Statutes Noticed:

Rules of Court (Alta.), rule 5.35 [para. 18]; rule 5.41 [para. 14]; rule 5.44(3) [para. 15].

Counsel:

Helmut Berndt (Helmut Berndt Professional Corporation), for the plaintiffs, Drapaka and Erketu;

John Carlson (Dean Duckett Carlson LLP), for the defendant, Patel;

Brian Thompson (Chomicki Baril Mah LLP), for the defendant, Wilson.

These appeals were heard on February 22, 2013, by Nielsen, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on April 26, 2013.