Soodhar v. Bagley, 2003 ABQB 524

• Judge: Greckol, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 16, 2003
• Citations: 2003 ABQB 524;(2003), 340 A.R. 178 (QB)

Soodhar v. Bagley (2003), 340 A.R. 178 (QB)

MLB headnote and full text

Temp. Cite: [2003] A.R. TBEd. JN.078

Gurminder Soodhar (plaintiff) v. Terence Bagley (defendant)

(Action No. 9503 23523; 2003 ABQB 524)

Indexed As: Soodhar v. Bagley

Alberta Court of Queen's Bench

Judicial District of Edmonton

Greckol, J.

June 9, 2003.

Summary:

The plaintiff sued the defendant for damages for injuries suffered in a motor vehicle accident. The defendant applied under rule 217(6) of the Rules of Court to require the plaintiff to attend for psychological testing by a neuropsychologist or clinical psychologist.

The Alberta Court of Queen's Bench dismissed the application.

Practice - Topic 4777

Discovery - Physical or psychological examination - Circumstances when ordered - The Alberta Court of Queen's Bench stated that "Rule 217 requests [for independent medical examinations] must be considered against the backdrop of what has gone before. It seems to me that rather than heap examination after examination upon the Plaintiff, and expert report upon expert report, clarity and focus in obtaining expert information at the outset, and good faith use of the information already available would better serve the interests of the adversaries and also better serve the overall interests of the litigation process, one of which is to assist a meritorious claimant to be put back in the position she would have been in but for the alleged civil wrong; that is, to assist her to get better. The Rule should not be used in a fashion that may in fact compromise this goal or the broader goal of achieving an efficient and expeditious resolution to the claim." - See paragraph 57.

Practice - Topic 4777

Discovery - Physical or psychological examination - Circumstances when ordered - A defendant applied under rule 217 of the Rules of Court to require the plaintiff to attend for psychological testing by a neuropsychologist or clinical psychologist as recommended by the defendant's psychiatrist (Gibson) - Testing was sought on the basis that it would show whether the plaintiff was telling the truth regarding her pre-accident condition and whether or not there was a basis for the psychiatric diagnosis of malingering - As well, it would allow Gibson to make a determination respecting the existence of other disorders - The Alberta Court of Queen's Bench dismissed the application - The court considered that, inter alia, the harm in permitting the tests would be far out of proportion to the good which might be achieved where extensive examinations by a battery of mental health experts already had been undertaken; one suggested test had already been administered; the multitude of diagnoses being considered by Gibson already had been considered by another psychiatrist; a further expert might be required to respond if further testing was permitted; and the plaintiff would have to undergo a further day of psychological testing - Further, the testing appeared to be directed primarily at assessing credibility - The evidence did not show the tests' precise nature and utility in assisting the court to reach a fair decision - Credibility was for the trial judge to assess.

Cases Noticed:

Tat v. Ellis et al. (1994), 155 A.R. 390; 73 W.A.C. 390 (C.A.), refd to. [para. 27].

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

Baker v. Yacyshen (1999), 253 A.R. 373 (Q.B.), refd to. [para. 34].

Carifelle v. Griep, [1989] A.J. No. 503 (C.A.), refd to. [para. 38].

Jacobsen v. Sveen (2001), 313 A.R. 104 (Q.B.), refd to. [para. 41].

Flores and Cruz v. Sabiston (1997), 207 A.R. 394 (Q.B. Master), refd to. [para. 44].

Flores and Cruz v. Sabiston (1997), 218 A.R. 382 (Q.B.), revd. (1998), 219 A.R. 73; 179 W.A.C. 73 (C.A.), refd to. [para. 44].

Statutes Noticed:

Rules of Court (Alta.), rule 217(1), rule 217(6) [para. 4].

Counsel:

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

Chomicki Baril Mah LLP, for the defendant.

Greckol, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, heard this application on April 16, 2003, and delivered the following judgment on June 9, 2003.