Kohlendorfer v. Northcott et al., (2013) 558 A.R. 227 (QB)

• Judge: Read, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 01, 2013
• Citations: (2013), 558 A.R. 227 (QB);2013 ABQB 145

Kohlendorfer v. Northcott (2013), 558 A.R. 227 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. MR.122

Stephan Kohlendorfer and Annie-Marie Kohlendorfer (plaintiffs) v. Adam Northcott and Yvette Marie Richard (defendants)

(0303 24014)

Zuzanna Musial (plaintiff) v. Patrick Setiono (defendant)

(0703 07865; 2013 ABQB 145)

Indexed As: Kohlendorfer v. Northcott et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Read, J.

March 7, 2013.

Summary:

The plaintiffs in two separate motor vehicle negligence actions underwent medical examinations by health care professionals chosen by the defendants. The examinations were videotaped at the plaintiffs' request. Copies were provided to the defendants as required by rule 5.41(1). At issue was whether rule 5.43 permitted a plaintiff who obtained a video recording of a medical examination by the defendant's health care professional to preclude that professional from reviewing the video recording before finalizing his or her report.

The Alberta Court of Queen's Bench held that the foundational rules suggest "an interpretation of R. 5.43 which permits the defendant's expert to review the video recording before completing his or her report and which permits, as well, defendant's counsel to review the recording".

Practice - Topic 4784

Discovery - Physical or psychological examination - Tape recording or videotaping of examination - Plaintiffs were medically examined by health care professionals chosen by the defendants - The examinations were videotaped at the plaintiffs' request - Copies were provided to the defendants as required by rule 5.41(1) - Rule 5.43(4) provided that "the videotape or recording (a) may be shown or played at trial only with the court's permission, and (b) may only be used to verify events at the medical examination" - At issue was whether rule 5.43 permitted a plaintiff to preclude the professional conducting the examination from reviewing the video recording before finalizing his or her report - The Alberta Court of Queen's Bench held that the foundational rules suggest "an interpretation of R. 5.43 which permits the defendant's expert to review the video recording before completing his or her report and which permits, as well, defendant's counsel to review the recording" - The court opined that generally it would be unnecessary for insurers involved in the case, or defendants personally, to view the videotaped examination.

Cases Noticed:

Crone v. Blue Cross Life Insurance Co. of Canada (2001), 297 A.R. 351; 2001 ABQB 787, refd to. [para. 19].

Feniak et al. v. Backhouse et al. (2012), 534 A.R. 1; 2010 ABQB 332, refd to. [para. 19].

Nystrom v. Ranson et al., [2011] A.R. Uned. 188; 2011 ABQB 116, refd to. [para. 21].

Guitierrez v. Jeske (2004), 355 A.R. 62; 2004 ABQB 105, refd to. [para. 25].

A.M. v. Ryan, [1997] 1 S.C.R. 157; 207 N.R. 81; 82 B.C.A.C. 81; 138 W.A.C. 81, refd to. [para. 31].

Stirling v. Mangembulude et al. (2000), 272 A.R. 184 (Q.B.), refd to. [para. 31].

Lyons v. Khamsanevongsy (1997), 207 A.R. 385 (Q.B.), refd to. [para. 32].

Grayson v. Demers, [1975] 2 W.W.R. 289 (Alta. C.A.), refd to. [para. 32].

Petersen v. Shepard (1985), 58 A.R. 240 (Q.B.), refd to. [para. 33].

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

Veckenstedt v. Youssef (2011), 528 A.R. 113; 2011 ABQB 735 (Master), refd to. [para. 37].

Statutes Noticed:

Rules of Court (Alta.), rule 1.22 [para. 13]; rule 1.7(1) [para. 14]; rule 5.31 [para. 15]; rule 5.41(1), rule 5.42(1), rule 5.43(3), rule 5.43(4) [para. 11].

Authors and Works Noticed:

Alberta, Law Reform Institute, Consultation Memorandum No. 12.3: Expert Evidence and "Independent" Medical Examinations, generally [para. 35].

Counsel:

Tanya Frizzell (Gowling Lafleur Henderson LLP), for Adam Northcott and Yvette Marie Richard;

Helmut Berndt (Helmut Berndt Professional Corp.), for Stephen and Annie-Marie Kohlendorfer and Zuzanna Musial;

Corinne S. Petersen (Chomicki Baril Mah LLP), for Patrick Setiono.

This matter was heard on March 1, 2013, before Read, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on March 7, 2013.