Guitierrez v. Jeske, 2005 ABQB 953

• Judge: Moen, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 03, 2004
• Citations: 2005 ABQB 953;(2005), 385 A.R. 62 (QB)

Guitierrez v. Jeske (2005), 385 A.R. 62 (QB)

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. JA.021

Ana Guitierrez (plaintiff/respondent) v. Gerald Timothy Jeske (defendant/applicant)

(9903 15247; 2005 ABQB 953)

Indexed As: Guitierrez v. Jeske

Alberta Court of Queen's Bench

Judicial District of Edmonton

Moen, J.

December 14, 2005.

Summary:

In an action for damages for personal injuries arising out of a motor vehicle accident, the defendant sought orders requiring the plaintiff to (i) undergo a psychiatric assessment and submit to psychological testing as directed by the psychiatrist, (ii) seek production of counselling records, (iii) reattend at examination for discovery and (iv) seek production of all chart notes, test data, draft reports and file materials in the possession of four physicians.

The Alberta Court of Queen's Bench ordered the plaintiff to attend the psychiatric assessment, to reattend at examination for discovery and to seek production of the documents in the possession of the four physicians. The court refused to order the plaintiff to submit to psychological testing or to seek production of counselling records.

Editor's note: for related decisions involving the same parties, see 341 A.R. 283, 355 A.R. 62, 363 A.R. 276 and 396 A.R. 1.

Evidence - Topic 7000

Opinion evidence - Expert evidence - General - In an action for damages for personal injuries arising out of a motor vehicle accident, the defendant sought production of all chart notes, test data, draft reports and file materials in the possession of four physicians - The Alberta Court of Queen's Bench allowed the application - If expert and technical evidence and opinion was to be of any use to the court, it had to be treated by the expert and counsel as objective evidence to assist the court - When all of the material available to the expert was not made available to the court, the opinion given by the expert was suspect - Full disclosure of all of that material had to be made available to the opposing party as soon as the party had provided an expert report so that cross-examination would be fully informed and any weakness or bias would be exposed - The plaintiff was ordered to provide all written material, in paper or electronic form, in the possession of any expert who had provided a report to the defendant - See paragraphs 6 to 14.

Practice - Topic 4191

Discovery - Examination - Re-examination - In examination for discovery in an action for damages for personal injuries arising out of a motor vehicle accident, the plaintiff refused to answer questions relating to her pre-accident psychological stressors and anxiety levels - The defendant sought an order requiring the plaintiff to reattend at examination for discovery - The Alberta Court of Queen's Bench allowed the application - The court also ordered the plaintiff to undergo an independent psychiatric assessment - In order for the defendant to properly instruct the psychiatrist, the defendant needed to know about the plaintiff's pre-accident psychological condition - That information would provide the factual foundation for the psychiatrist's examination and for the claim for psychological injuries resulting from the accident - See paragraph 48.

Practice - Topic 4573.1

Discovery - What documents must be produced - Experts' reports (incl. documentary basis) - [See Evidence - Topic 7000 ].

Practice - Topic 4573.2

Discovery - What documents must be produced - Test results - [See Evidence - Topic 7000 ].

Practice - Topic 4573.3

Discovery - What documents must be produced - Computerized documents or electronic data - [See Evidence - Topic 7000 ].

Practice - Topic 4573.4

Discovery - What documents must be produced - Prior drafts of a document - [See Evidence - Topic 7000 ].

Practice - Topic 4578

Discovery - What documents must be produced - Privileged documents - Documents prepared in contemplation of litigation - In an action for damages for personal injuries arising out of a motor vehicle accident, the plaintiff was examined by an independent medical doctor, Dr. Clarke - Dr. Apel attended the examination on behalf of the plaintiff as her nominee and provided an independent medical report - The defendant sought production of notes taken by Dr. Apel during the examination by Dr. Clarke - The plaintiff argued that privilege attached to the notes because they were prepared for the purpose of assisting counsel to prepare for trial - The Alberta Court of Queen's Bench allowed the application - The court declined to address the privilege issue because Dr. Apel had given opinion evidence and been permitted to attend as the plaintiff's nominee - She could not be considered a "confidential advisor" retained solely for the purpose of assisting counsel - If Dr. Apel was to be accepted at trial as an expert, there had to be no indication that she was an advocate for the plaintiff - Therefore, everything she had in her possession, including all of her notes, had to be provided - See paragraphs 15 to 21.

Practice - Topic 4605

Discovery - Production of documents by nonparties - Counsellor's records - In an action for damages for personal injuries arising out of a 1998 motor vehicle accident, the defendant sought production of counselling records from an institute that the plaintiff had attended for therapy in 1996 - The Alberta Court of Queen's Bench denied the application - While the court found that the plaintiff's psychological state before the accident was relevant to the issue of her present psychological state, that did not end the inquiry as to whether third party documents had to be produced - The plaintiff's therapy at the institute had also involved her children - Their privacy had to be protected - Further, the defendant had not given notice to the institute that he was seeking production of those records so that the institute could attend and make its arguments - Other vulnerable parties were involved and someone should have been before the court to ensure their privacy interests - See paragraphs 49 to 54.

Practice - Topic 4777

Discovery - Physical or psychological examination - Circumstances when ordered - In an action for damages for personal injuries arising out of a motor vehicle accident, the defendant sought an order requiring the plaintiff to undergo an independent psychiatric assessment - The plaintiff argued that the psychiatric assessment was excessive - She had already undergone two independent medical examinations - The Alberta Court of Queen's Bench allowed the application - The plaintiff had put psychological issues before the court in her claim for chronic pain - In order for the defendant to prepare for the case and for the trial judge to be fully informed as to causation, the defendant was entitled to a medical report on the plaintiff's current psychological condition, whether that condition was caused by the accident or something else, and the prognosis - Regarding the plaintiff's argument that the examination was excessive, the court noted that she intended to call about 14 experts, none of which was a psychiatrist - See paragraphs 22 to 41.

Cases Noticed:

Vancouver Community College v. Phillips, Barratt (1987), 20 B.C.L.R.(2d) 289 (S.C.), refd to. [para. 8].

Lyons v. Khamsanevongsy (1997), 207 A.R. 385 (Q.B.), refd to. [para. 34].

Grayson v. Demers, [1975] 2 W.W.R. 289 (Alta. C.A.), refd to. [para. 34].

Petersen v. Shepard (1985), 58 A.R. 240 (Q.B.), refd to. [para. 35].

Tat v. Ellis et al. (1994), 155 A.R. 390; 73 W.A.C. 390 (C.A.), refd to. [para. 37].

Soodhar v. Bagley (2003), 340 A.R. 178 (Q.B.), dist. [para. 45].

Counsel:

Helmut Berndt (Berndt & Associates), for the plaintiff;

Kevin Feth (Field LLP), for the defendant.

This application was heard on December 3, 2004, by Moen, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on December 14, 2005.