Feniak et al. v. Backhouse et al., 2010 ABQB 332

• Judge: Read, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 07, 2010
• Citations: 2010 ABQB 332;(2012), 534 A.R. 1 (QB)

Feniak v. Backhouse (2012), 534 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. MR.054

Heather Feniak and Her Majesty the Queen in Right of Alberta (plaintiffs) v. James Backhouse, Lifemark Alberta Physiotherapy Inc., formerly known as Academy Place Physical Therapy and Academy Place Physical Therapy Inc. (defendants)

(0203 08320; 2010 ABQB 332)

Indexed As: Feniak et al. v. Backhouse et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Read, J.

May 13, 2010.

Summary:

The plaintiff received physiotherapy from the defendant for a motor vehicle accident injury. The plaintiff alleged that the defendant sexually assaulted her, which exacerbated her accident injuries and rendered her unable to work. She sued for damages. The defendant applied under rule 217 for an order that the plaintiff submit to independent medical examinations (IME) by a physiotherapist, psychiatrist and orthopaedic surgeon. The plaintiff agreed to an IME by the surgeon, but argued that the defendant was not entitled to the other two IMEs or, alternatively, they had to be conducted subject to a number of conditions imposed by the plaintiff.

The Alberta Court of Queen's Bench held that the defendant was entitled to an IME by their own psychiatrist, a "duly qualified medical examiner" where the plaintiff put her mental health in issue and there was no evidence to support her claim to serious harm if examined by the psychiatrist. The defendant was not entitled to an IME by the physiotherapist, a "health care professional" not a "duly qualified medical examiner". A precondition to that IME was that the plaintiff was already examined by her own physiotherapist. That had not occurred. Finally, the court determined which of the conditions proposed by the plaintiff should be imposed on the IME.

Practice - Topic 4777

Discovery - Physical or psychological examination - Circumstances when ordered (incl. multiple assessments) - The plaintiff received physiotherapy from the defendant for a motor vehicle accident injury - The plaintiff alleged that the defendant sexually assaulted her, which exacerbated her accident injuries and rendered her unable to work - She sued for damages - The defendant applied under rule 217 for an order that the plaintiff submit to independent medical examinations (IME) by a physiotherapist, psychiatrist and orthopaedic surgeon - The plaintiff agreed to an IME by the surgeon, but argued that the defendant was not entitled to the other two IMEs or, alternatively, they had to be conducted subject to a number of conditions imposed by the plaintiff - The Alberta Court of Queen's Bench ordered an IME by the defendant's psychiatrist, as the plaintiff put her mental health in issue and there was no evidence to support the plaintiff's claim that the IME would cause her serious harm - The defendant was not entitled to an IME by the defendant's physiotherapist under rule 217(10), as a physiotherapist was a "health care professional" not a "duly qualified medical examiner" - The plaintiff had not been examined by a physiotherapist who she intended to call as an expert, which was a precondition to the defendant's application succeeding - See paragraphs 1 to 24.

Practice - Topic 4780

Discovery - Physical or psychological examination - Examination - Conditions of - The plaintiff received physiotherapy from the defendant for a motor vehicle accident injury - The plaintiff alleged that the defendant sexually assaulted her, which exacerbated her accident injuries and rendered her unable to work - She sued for damages - The court ordered that the defendant submit to an independent medical examination (IME) by the defendant's psychiatrist (rule 271(1)) - The plaintiff proposed conditions to that IME - The Alberta Court of Queen's Bench held that: (1) the defendant was not required to audiotape or videotape the IME; (2) the plaintiff was entitled to be accompanied by a medical nominee, but not a female chaperone; (3) the plaintiff was not entitled to disclosure of all materials provided to the psychiatrist; (4) the psychiatrist was not required to identify all of the learned authorities that he consulted; (5) the request that the defendant's counsel not communicate with the psychiatrist until his report was completed was rejected, as the suggestion of improperly influencing the report was offensive and inappropriate; (6) a 60 day deadline on completion of the report would not be imposed; (7) the psychiatrist was not required to preserve his notes and provide them to the plaintiff; (8) the IME sessions with the psychiatrist were not to exceed one hour, as requested by the plaintiff; and (9) the psychiatrist was entitled to conduct such diagnostic tests as he considered necessary to enable him to render an opinion (not required to pre-indicate which tests he would administer or bring specific application to approve such tests before they were administered) - See paragraphs 25 to 59.

Practice - Topic 4782.2

Discovery - Physical or psychological examination - Plaintiff's medical nominee (incl. role of) - [See Practice - Topic 4780 ].

Practice - Topic 4784

Discovery - Physical or psychological examination - Tape recording or videotaping of examination - [See Practice - Topic 4780 ].

Cases Noticed:

Murdoch v. Brimmage and Low (1995), 168 A.R. 75 (Q.B.), refd to. [para. 11].

Kathpalia v. Acker (1978), 5 C.P.C. 311 (Ont. Master), refd to. [para. 11].

D. v. Phillips et al. (2003), 350 A.R. 24; 2003 ABQB 832, refd to. [para. 12].

R. and J. v. W.A. et al. (2001), 304 A.R. 78; 2001 ABQB 853, refd to. [para. 15].

Jacobson v. Sveen (2001), 313 A.R. 104; 2001 ABQB 989, refd to. [para. 20].

Grayson v. Demers, [1975] 2 W.W.R. 289 (Alta. C.A.), refd to. [para. 26].

Crone v. Blue Cross Life Insurance Co. of Canada (2001), 297 A.R. 351; 2001 ABQB 787, refd to. [para. 27].

Trang et al. v. Edmonton Remand Centre (Director) et al. (2004), 366 A.R. 157; 2004 ABQB 432, refd to. [para. 27].

Andre v. Wiebe (2000), 284 A.R. 378; 2000 ABQB 946, refd to. [para. 34].

Tat v. Ellis et al. (1994), 155 A.R. 390; 73 W.A.C. 390 (C.A.), refd to. [para. 57].

Soodhar v. Bagley (2003), 340 A.R. 178; 2003 ABQB 524, refd to. [para. 57].

Counsel:

Joseph V. Miller (Wier Bowen LLP), for the plaintiffs;

Philip Tinkler (Fraser Milner Casgrain LLP), for the defendants.

This application was heard on May 7, 2010, before Read, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on May 13, 2010.