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
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
The decision in Erketu is currently being appealed.
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