Nguyen v. Koehn, 2012 ABQB 655, per Moreau, J. [3980]
The plaintiff sued for personal injury as a result of a motor vehicle accident that occurred on 14 November, 2007. The plaintiff alleged injuries to his left foot, flank, hip, elbow and shoulder, as well as to his lower back. The plaintiff had retained an orthopedic surgeon of his choice to do a complete medical examination. At the time of the application, the plaintiff had not produced a copy of that orthopedic surgeon’s report to the defence.
The defence sought to have an orthopedic IMEcarried out by Dr. Gordon Russell. The plaintiff indicated that he wanted the examination videotaped pursuant to new Rule 5.42(1)(b). Dr. Russell refused, indicating that he would not agree to video recording or the presence of a nominee health care professional on the part of the plaintiff during the medical examination. No reasons were given for the doctor’s refusal.
Defence counsel contacted six specialists to see whether or not they would perform a defence IMEif it was video recorded. Four (three orthopedic surgeons and one neuro surgeon) indicated that they would not. Two (an occupational medicine specialist and another orthopedic surgeon) said that they would. Defence counsel’s preference was to retain one of the four specialists who would not agree to videotaping. The plaintiff produced evidence to the effect that the Alberta College of Physicians and Surgeons listed 55 orthopedic specialists, 53 neurologists, 25 physiatrists, 15 rheumatologists, 11 occupational medicine specialists and 22 neurosurgeons practiced in the Edmonton area and that Viewpoint Medical Assessment Services was able to offer videorecorded defence IMEs. In response, the defence tendered evidence to the effect that defence counsel had called all 55 orthopedic surgeons in the Edmonton area. She was unable to reach 12 of them. Of the rest, 31 would not do IMEs at all. Of the 14 who would, six would not permit videotaping, four indicated that they would and four did not respond. Defence counsel did not want to retain any of the four orthopedic specialists who indicated that they would allow videotaping or the four who had not yet responded. The Court noted that defence counsel’s reasons "relate to potential bias, credibility issues and not knowing these specialists as he has not previously retained them". Defence counsel preferred to retain any one of a group of three orthopedic surgeons: Dr. Russell, Dr. Guy Lavoie or Dr. Michele Lavoie. They all performed IMEs but would not agree to videorecording. However, Dr. Guy Lavoie would permit a nominee to be present. Defence counsel indicated that he had retained each of these three orthopedic surgeons in the past, had been exposed to their reports and "has a feeling of comfort with them".
The defence applied to the Master for an order directing that the plaintiff not be permitted to videorecord or audiorecord the defence IMEor to have a nominee present. The defence sought an order requiring the plaintiff to go to Dr. Gordon Russell for the defence IME.
The Master held that the purpose behind former Rule 217(5) and the current rules was "to secure an accurate record of what transpired at the defence medical examination" and that there was a presumption in favour of the videorecording unless there was a good reason to disallow it. The Master concluded that perhaps if only one doctor within a particular specialty was prepared to perform an IMEthat was videorecorded, might be a sufficient reason for the Court to dispense with videorecording but was not satisfied that waiver of the plaintiff’s right to videorecording should be waived in this case.
The defendants appealed.
HELD: Appeal allowed in part; defence allowed to choose a specialist who would agree to either a videorecorded IME or the presence of a nominee (covering the additional expense of a nominee over that of videorecording if that option is chosen).
(a) The Court held that the standard of review on appeal to the Court of Queen’s Bench from a Master’s decision is one of correctness: Bahcheli v. Yorkton Securities Inc., 2012 ABCA166.
(b) The Court held that sub-rule 5.44(5) "pertains to the conduct of the medical examination itself… and not to how the medical examination is recorded" and, accordingly, did not empower the Court to dispense with or limit the ability of the plaintiff to appoint a nominee or videorecord a defence IME.
(c) The Court held that although the former Rule 216.1 did not empower the Court to waive a plaintiff’s right to have a nominee present, the new Rule 5.42 allows the Court to "define or limit the presence or role of" a nominee, including the ability to waive it altogether (at ¶30). Cases to the contrary were all decided under the old Rule and are no longer applicable on this point. Additionally, Rule 5.3(1) allows the Court to "modify or waive any right or power under a Rule in this Part", and the Rules for IMEs are part of that Part (Part 5).
(d) The Court held that Rule 5.42 does not expressly limit the circumstances in which the Court may exercise this discretion to limit or waive the plaintiff’s ability to appoint a nominee or videorecord a defence IME:
[33] The heading of Rule 5.42 is "Options during medical examination." Iinterpret Subrule 5.42(1) and (2) as authorizing the court to limit the manner in which a plaintiff may exercise his or her options under rule 5.42(1) in relation to the recording or witnessing of a defence medical examination. Iam of the view that given the inclusion of these specific provisions that do not expressly limit the circumstances in which the Court may exercise its discretion, the Master was not constrained by the conditions set out in Rule 5.3(1). Ibelieve this view is more in keeping with the intention and purpose of the new Rules as expressed in foundational Rule 1.7.
(e) The Court held that Ontario cases are of no assistance with respect to the Alberta rule because the Ontario Rules are silent with respect to recording defence IMEs.
(f) The Court held that the party seeking to dispense with videorecording or the appointment of a nominee bears the onus of justifying that position:
[35] Clearly, this is not the situation under new Alberta Rule 5.42(1). Unlike the state of the law in Ontario, Rule 5.42(1) contains no requirement that a plaintiff demonstrate the potential for a bona fide concern as to the reliability of the doctor’s account of any statements made by the plaintiff during the examination. Iam of the view that it is for the party seeking to dispense with videotaping to justify the court exercising its discretion to deprive the person being examined of his or her entitlement to have the examination videotaped under the new Rule.
(g) The Court rejected the defence argument that without a waiver of videorecording, the "equal playing field" between the plaintiff and the defence is disrupted. For one thing, the Court held that it is insufficient for the defence to argue that videorecording would disrupt the trust or confidence between the plaintiff and the defence doctor, given that the relationship between a plaintiff and the defence doctor is not the same as that between a plaintiff and his/her own physician:
[36] The Appellant submits that without a waiver of videotaping in this case, the equal playing field created by permitting defence medical examinations will be disrupted, particularly given there is no requirement that a medical examination of the plaintiff performed at his or her behest be videotaped. While Nistor [v. Kankolongo, 2007 ABQB 684] was decided under the old Rules when the right to have a nominee present at a defence medical examination was considered absolute, the comments of Bielby J (as she then was) at para 23 of that case regarding the difference between the two types of medical examinations nonetheless are germane:
No one suggests that the Legislature created the right to have a nominee present other than as a means of ensuring accuracy and fair play during an examination ordered and paid for by a party opposite in interest. Different considerations apply when a party is being examined by his own physician." [Emphasis added by the Court.]
[37] Doherty JA, who concurred in the result in Bellamy [v. Johnson (1992) 8 OR(3d) 591], expanded at para 28 on the different considerations that apply when a plaintiff is being examined by a doctor of the defendant’s choosing rather his or her own physician:
It is unrealistic to view the relationship between the examining doctor and the plaintiff-examinee as akin to that of the relationship which exists when a patient goes to a doctor seeking treatment or advice. It is equally unrealistic to expect that the same rapport based on mutual trust and confidentiality should be expected or even sought. When determining whether the tape recording of the examination would interfere with an effective medical evaluation, the realities of the relationship between the doctor and the plaintiff-examinee must be borne in mind. It is not enough that the presence of the device could inhibit the development of the trust and confidence which would be expected in a normal doctor-patient relationship. Those features are not part of the "defence medical" dynamic.
[38] Moreover, as noted by Bielby J in Nistor at para 24, if the legislature had intended that defendants retain an unfettered right to challenge a plaintiff’s case, it would not have introduced the Rules relating to nominees. The same point can be made in relation to videotaping.
(h) Her Ladyship also noted that "the legal landscape was quite different 11 years ago when Crone v. Blue Cross Life Insurance Company of Canada, 2001 ABQB 787] was decided".
(i) The Court noted that there was no evidence why six orthopedic surgeons refused videorecording or that it might impair their ability to properly conduct an IME, concluding that the defence choice of specialists is limited by the refusal of those doctors as opposed to the position taken by the plaintiff. It was noted that the legislature had seen fit to provide plaintiffs with the option of videorecording and nominees. It was noted that dispensing with videorecording can be done by the court for "cogent reasons" but not without first considering various alternatives. The Court held as follows:
[41] There is no evidence indicating why the six orthopaedic specialists have refused videotaping and no evidence that it might impair their ability to conduct a proper and effective medical examination. It is the refusal of those orthopaedic specialists to permit videotaping that is limiting the Appellant’s choices, not the actions of the Respondent in insisting on an option the legislature has determined he may elect to exercise.
[42] The Appellant argued that plaintiffs could use Rule 5.42(1) to artificially narrow the pool of available health care practitioners by asking for videotaping in every case. I am not satisfied that asking for videotaping, which clearly is an option for a plaintiff under the new Rules, is indicative of a mischievous purpose. In the appropriate case, where there are cogent reasons provided to justify dispensing with videotaping, the Court has the discretion under Rule 5.42(1) and (2) to do so, but not without considering various alternatives.
(j) The Court summarized the "reasoning" behind the decision to allow videorecording, i.e. as a less expensive way of recording the IMEthan the nomination of a health care professional to attend on the plaintiff’s behalf:
[43] In the Alberta Law Reform Institute’s Alberta Rules of Court Project: Expert Evidence and "Independent" Medical Examinations, Consultation Memorandum No. 12.3 (Edmonton: Alberta law Reform Institute, February 2003) pp 44-47, it was noted that having a nominee attend a defence medical examination under former Rule 217(5) was a way in which to ensure the medical practitioner’s questions were fair and the record of the examinee’s answers was accurate. However, there was a concern that scheduling the attendance of the nominee at the examination could be difficult and it was expensive to have the nominee attend. The Alberta Law Reform Institute concluded that videotaping would meet all of these objectives and, therefore, recommended that the examinee have the option to select videotaping as an alternative to having a nominee present.
(k) The Court held that a fair result in this case would be to allow the defence to have the option of choosing either a specialist who would allow a videorecording or a specialist who would allow the presence of a nominee, taking into account that one of the doctors preferred by defence counsel (Dr. Guy Lavoie) would agree to the presence of a nominee:
[45] The evidence also discloses that Dr. Guy Lavoie signed a form addressed to him by counsel for the Appellant indicating that while he would not permit his medical examination to be videotaped, he would permit a nominee to be present. Counsel for the Appellant named Dr. Guy Lavoie as one of the three orthopaedic specialists he favoured to perform the examination.
[46] In all of the circumstances, a fair result that would give effect to the purpose of Rule 5.42 would be to allow the Appellant, at his option to be exercised within 30 days of the release of these reasons, to select a health care professional who will permit videotaping, or instead to select one who will accept only the presence of a nominee. If the Appellant decides on the latter option, he will be responsible for the payment of any costs associated with the attendance of the nominee to be selected by the Respondent which are over and above those that would be entailed with videotaping the examination.
(l) Note that in these circumstances, as opposed to requiring the plaintiff to pay the costs of the nominee, the defendant was ordered to pay the costs of nominee in excess of the costs of videorecording if the defence chose to go with a specialist who would allow a nominee.
COMMENTARY: The decision of Madame Justice Moreau is quite logical in light of Alberta’s current Rule 5.42. With all due respect, the problem is not with her interpretation thereof, but with the rule itself. The rule was promulgated either with an institutional bias in favour of plaintiffs or an ignorance of the realities of hiring a defence independent medical examination specialist. The defence in this case directly advanced a notion that defence counsel have been annunciating for some time, to the effect that the new rule creates an uneven playing field in favour of plaintiffs with respect to IMEs. Under the old rules, videorecording of defence IMEs was not obligatory because the courts (quite rationally) recognized that it would create an uneven playing field to allow plaintiff experts to be able to minutely nit-pick defence IMEs because they are recorded where plaintiff medical examinations are not recorded so as to give the defence side the same opportunity. Additionally, what this means is that the pool of specialists available for defence IMEs has been drastically narrowed in all specialties (especially with respect to psychological experts). Many credible physicians and psychologists who would perform medical examinations for either plaintiffs or defendants will now only work for plaintiffs because they are not available to the defence if the plaintiff in any given case should insist on videorecording. That this would happen should not have been unforeseeable to those who drafted the current Rule 5.42.