Stirling v. Mangembulude et al., (2000) 272 A.R. 184 (QB)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 10, 2000
• Citations: (2000), 272 A.R. 184 (QB)

Stirling v. Mangembulude (2000), 272 A.R. 184 (QB)

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. SE.088

Dianne Stirling (plaintiff/respondent) v. Lily Mangembulude, Suherman A. Ghani, Sharon Marsh, Alberta Council on Problem Gambling, Susan O'Brien and Stewart Austin Corbett (defendants/applicant)

(Action No. 9701-03288)

Suherman Ghani and Lily Mangembulude (plaintiffs) v. Sharon Marsh, Alberta Council on Problem Gambling, Susan O'Brien, Stewart Austin Corbett, The City of Calgary and Diane Sterling (defendants)

(Action No. 9701-10201)

Dianne Stirling (plaintiff/respondent) v. Joaquim Pinto also known as Joe Pinto (defendant/applicant)

(Action No. 9701-14269)

Indexed As: Stirling v. Mangembulude et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Moore, C.J.Q.B.

August 28, 2000.

Summary:

The plaintiff alleged that she suffered damages from injuries sustained in two accidents. Certain defendants applied for an order directing the plaintiff to attend for a Functional Capacity Evaluation (FCE) to be performed by a physiotherapist.

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

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction - Defendants applied for an order directing the plaintiff to attend for a Functional Capacity Evaluation (FCE) to be performed by a physiothera­pist - The Alberta Court of Queen's Bench allowed the application - The court held that it could order a plaintiff to submit to an examination by someone other than a duly qualified medical practitioner under its inherent jurisdiction to control its own process to ensure the fairness of a trial - In light of the considerable volume of medical evi­dence that the plaintiff intended to call at trial to indicate that she could no longer work, and the importance of the issue, it was fair and reasonable to allow the defendants to have the plaintiff attend for a FCE - See paragraphs 19 to 27.

Practice - Topic 4777

Discovery - Physical or psychological examination - Circumstances when ordered - In personal injury actions, rule 217(1) permitted independent medical examina­tions of a plaintiff by a "duly qualified medical practitioner" - The Alberta Court of Queen's Bench held that under rule 217, it could order a plaintiff to submit to an examination by an expert who was not a "duly qualified medical practitioner" where the later stated that he or she required examinations by other experts in order to provide an opinion - However, a statement from a doctor that a plaintiff would benefit from a Functional Capacity Evaluation (FCE) to be per­formed by a physio­therapist fell short of certifying or establishing the FCE as necessary - Further, there was no evidence that the doctor required the FCE in order to com­plete his diagnosis - See paragraphs 14 to 18.

Practice - Topic 4777

Discovery - Physical or psychological examination - Circumstances when ordered - [See Courts - Topic 2004 ].

Practice - Topic 4786

Discovery - Physical or psychological examination - By vocational therapist or psychologist - [See Courts - Topic 2004 ].

Cases Noticed:

Tat v. Ellis et al. (1994), 155 A.R. 390; 73 W.A.C. 390 (C.A.), refd to. [para. 8].

Blackburn et al. v. Kochs Trucking Inc. et al. (1988), 86 A.R. 321; 58 Alta. L.R.(2d) 358 (Q.B.), refd to. [para. 10].

Walters v. Zurich Life Insurance Co. of Canada (1996), 180 A.R. 308 (Q.B. Master), refd to. [para. 11].

Parenteau v. Courtesy Corner Tourist Service Ltd. (1993), 146 A.R. 241 (Q.B.), refd to. [para. 12].

Bilinski v. Wangerin, [1994] 3 W.W.R. 379; 147 A.R. 211 (Q.B.), refd to. [para. 12].

Lyons v. Khamsanevongsy (1997), 207 A.R. 385 (Q.B.), refd to. [para. 21].

Baker v. Yacyshen (1999), 253 A.R. 373 (Q.B.), refd to. [para. 22].

Statutes Noticed:

Rules of Court (Alta.), rule 217(1) [para. 7].

Counsel:

Marney Lutz, for the applicants/defendants, Susan O'Brien and Stewart Austin Corbett;

Barbara L. Boeckx, for the applicants/de­fendants, Suherman A. Ghani and Lily Mangembulude;

Darryl Reuther, for the applicant/defen­dant, Joaquim Pinto a.k.a. Joe Pinto;

Joanne E. Ingram, for the respon­dent/plaintiff, Dianne Stirling.

This application was heard on August 10, 2000, by Moore, C.J.Q.B., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following deci­sion on August 28, 2000.