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Master Disregards 'Plain Reading' of New Rule

29-Jan-13

By Robert Muller


In the case of Erketu v. Wilson, 2012 ABQB 748 ("Erketu") the Plaintiff refused to disclose expert medical reports to the Defendant until the Defendant had conducted any medical examinations he might decide to obtain. An application to decide the issue resulted in a Master interpreting Rules 5.35 and 5.41 of the Alberta Rules of Court. Rule 5.35 concerns the exchange of expert reports prior to trial. In essence, the Rule requires a sequential, rather than simultaneous, exchange of expert reports in which the party “who bears the primary onus of proof” in the action must serve his or her reports first, after which the other party may serve rebuttal reports.
 

Rule 5.41 enables a Defendant to obtain a medical examination of a Plaintiff whose mental or physical condition is at issue in an action. Once such a medical examination has been conducted, Rule 5.44 enables a Defendant to obtain from the Plaintiff reports of every medical examination previously or subsequently made of the Plaintiff, whether or not the Plaintiff intends to rely upon those reports at trial. A Rule 5.41 medical examination is often referred to as an “independent” medical examination; however it is more accurately described as a defence medical examination.


In Erketu the parties were apparently in a standoff: the issue to be determined by the Master was whether the Defendant could obtain disclosure of the Plaintiff’s expert reports first, as contemplated by Rule 5.35, or whether the Plaintiff should be entitled to maintain privilege over his reports until the Defendant conducted a medical examination, thereby removing the privilege.


The Master began by noting that “a plain reading of the Rules would support the Defendant’s position” that he need not decide to conduct a medical examination of the Plaintiff prior to the Plaintiff’s obligation to serve any expert reports he intends to rely on at trial. However, the Master then went on to conclude that the problem with enforcing the sequential disclosure rule is that “experience and common sense indicate that it is more likely for the Defendant’s expert to provide a totally fresh opinion if he or she is not influenced by having read another expert’s medical opinion”. It appears as though the Master relied upon that rationale to avoid the application of Rule 5.35 (which contains a provision granting discretion to the Court with respect to the Rule).


None of the Medical Examination rules found in the Rules of Court require a Defendant’s expert to form an opinion in a vacuum. It is submitted that it would be unusual for any expert to form an opinion for litigation purposes without reviewing any records. As Madam Justice Veit has stated, the defence medical examination is not “independent”. Such an expert is entitled to be an advocate and take an adversarial stance, but “naturally, all experts who provide evidence in legal proceedings must comply with the basic requirements of such witnesses, including an obligation to give an honest opinion” (Jacobson v. Sveen, 2000 ABQB 15).


Given the long-standing common law principles concerning expert reports summarized by Justice Veit in the Jacobson case, the Master’s exercise of discretion in Erketu and his circumvention of Rule 5.35 in the interest of avoiding one expert being “influenced” by another would seem to have little justification.
 

The decision in Erketu is currently being appealed.

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