The Court of Queen's Bench of Alberta has recently
reconsidered the issue of litigation privilege in the context of
the Minor Injury Regulation (the "MIR"). In the
2013 decision of Rodriguez v. Woloszyn
("Rodriguez"), Justice Wakeling overturned the
decision of Master Schlosser, which
we reported on last year. Master Schlosser held that the
Plaintiff had not waived litigation privilege by voluntarily
producing his medical legal reports to a certified examiner (the
"Examiner") appointed under the MIR to conduct a
certified medical examination ("CME"). Under the MIR, a
CME can be requested by either party to decide whether a plaintiff
has suffered a "minor injury". Section 12 of the MIR
provides that the opinion of the Examiner is prima facie
evidence that a plaintiff's injury is or is not a minor
In Rodriguez, Plaintiff's counsel provided two
expert reports to the Examiner. These reports had not been produced
to Defence counsel. Plaintiff's counsel argued that:
the expert reports were privileged, and
this privilege had not been waived.
Master Schlosser agreed with Plaintiff's counsel on the
basis that the Defendant could still request that the Plaintiff be
examined for an independent medical examination under Rule 5.41 of
the Alberta Rules of Court. The effect of such an
examination pursuant to Rule 5.44(3) would end litigation privilege
over the Plaintiff's medical reports, as the Defendant would be
entitled to receive copies of these.
Justice Wakeling disagreed with Master Schlosser's
reasoning. In his analysis, he noted that the Examiner, in
publishing an opinion as to whether a person has a minor injury,
makes an important decision which affects both Plaintiff and
Defendant. The duty of fairness compels the mutual disclosure of
any information which the parties delivered to the Examiner. The
obligation to disclose also rests with the Examiner if a party
fails to deliver documents to the other side.
In Rodriguez, the Plaintiff, acting through his
counsel, voluntarily waived the protection of litigation privilege.
Plaintiff's counsel understood that the documents were
protected from review by third parties because of the litigation
privilege principle. Counsel also appreciated that he delivered the
privileged documents to a third party. This was a classic example
of a voluntary waiver of privilege. Justice Wakeling held that a
plaintiff who is compelled to disclose medical reports to a
defendant that were provided to an Examiner has not been unfairly
treated. Any other result would provide a plaintiff with an unfair
advantage in this stage of the litigation process set by the MIR.
Further, the settlement of legal disputes at the earliest possible
time is in the public interest. Settlements are most likely to
occur when there is disclosure of relevant information that allows
parties to make an informed decision as to what a Court will likely
decide in the litigation.
Justice Wakeling's decision in Rodriguez is helpful
for defence counsel. Plaintiffs' counsel are no longer entitled
to withhold documents during the CME process, allowing for greater
transparency and potential resolution of claims. Rodriguez
also reminds us of the evolving and developing case law surrounding
the application of the MIR.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Alberta is going through a difficult economic period. These times can be challenging and while owners struggle to get their business through the rough patch, they want to preserve the assets and capital they have built up.
Legal issues surrounding contaminated sites affects landowners, developers, realtors, as well as consultants and contractors working on the front lines. This webinar will provide a practical review of how the legislation is actually being used, recent court decisions, challenges with brownfield developments, and future changes.
Who Should Attend: This webinar will be of interest to developers, contractors, environmental and real estate consultants, realtors, owners or lessors of land which may be impacted, and municipalities.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).