Canada: Plaintiff’s Entitlement To Videotape Certified Medical Examinations

Last Updated: January 17 2014
Article by Alexis N. Moulton

For those of us working in the personal injury area of insurance after the implementation of the Minor Injury Regulation, Alberta Reg 123/2004 ("MIR") we are always on the lookout for case law that helps to clarify various sections of that legislation.

In the last couple of years, one of the main areas of debate has been the ability of a Plaintiff to have Certified Medical Examinations ("CMEs") videotaped. In Alberta, it has become increasingly difficult to find examiners who are willing to have CMEs videotaped. Defence counsel then faces an increasingly smaller pool of qualified examiners able to conduct the CME given the Plaintiff's argument that there is an entitlement to have the CME videotaped.

The January 6, 2014 decision of C. Kim Gordon v. Taylor et al (Gordon) by Ross J. clarifies some of these issues [2014 ABQB 11].

The Plaintiff was involved in four separate car accidents and all four defendants sought CMEs under the MIR. The Plaintiff and Defendants did not agree on a certified examiner and therefore requested the Superintendent of Insurance to appoint one.

Initially the Superintendent took the position that four examiners were required, and appointed four separate Calgary physicians to perform the CMEs. The Plaintiff contacted each physician and requested the examination be videotaped. All four advised they would not permit videotaping and as a result the Defendants applied for an Order directing the Plaintiff to attend CMEs without videotaping, or in the alternative, for the Superintendent to appoint certified examiners who would permit videotaping.

The Superintendent agreed to appoint one certified examiner who would permit videotaping and conduct the CMEs for all four actions. The Defendants continued to maintain the position the Plaintiff had no entitlement to have the examination videotaped and therefore proceeded with the court application.

Ross J. considered the following issues:

  1. Do provisions for medical examinations found in the Alberta Rules of Court provide claimants a right to videotape CMEs under the MIR;
  2. If the Alberta Rules of Court do not permit videotaped CMEs, does the Court have the discretion to order videotaping of CMEs, and if so, should it exercise that discretion in this case; and
  3. Given the answers to Issues 1 and 2, should the Court order a rescheduled examination.

With regard to Issue 1, the Defendants took the position that the Rules of Court entitled Plaintiffs to videotape medical examinations, but that entitlement only applied to medical examinations performed pursuant to the Rules and not examinations pursuant to the MIR. The Plaintiff obviously took the position the entitlement to videotaping under the Alberta Rules of Court applied to CMEs.

Ross J. reviewed case law on statutory interpretation and situations where similar statutory provisions (in this case the Alberta Rules of Court and the MIR) dealt with similar matters.

Ross J. pointed out that the MIR says nothing about videotaping CMEs. In contrast, the Alberta Rules of Court explicitly entitle those subject to a medical examination to videotape the examination.

The Court in Gordon made reference to a case conference on December 11, 2012 in front of Rooke ACJ in the Soodhar v. Moore action. A transcript of this case conference was provided to Ross J.. In the Soodhar action Rooke ACJ ordered the Defendant to select a certified examiner who would permit video recording and in his reasoning did not distinguish between examinations under the Rules of Court and CMEs under the MIR. Rooke ACJ noted the entitlement to videotape applies to a "medical examination" not an "independent medical examination".

Ross J. stated that Rooke ACJ did not have the MIR before him and that this issue arose in the context of setting deadlines for the parties. Rooke ACJ did not have the opportunity to read the provisions of the relevant legislation, and Ross J. therefore determined that the decision in the case conference in Soodhar was not binding on her in the Gordon action.

Ross J. then moved to an analysis of whether applying the Alberta Rules of Court entitlement to videotaping to a CME situation would be consistent with the object and spirit of the MIR. Justice Ross concluded that to so apply the Rules would not be consistent with the objective of the MIR and would put that legislative scheme at risk [para 26].

Ross J. pointed out that the class of certified examiners is much smaller than the class of experts available for medical examinations under the Rules of Court. The register of certified examiners in Alberta at the relevant time contained only 44 names. It is interesting to note the Superintendent sent surveys to the 44 certified examiners on the register inquiring as to their position regarding videotaping. Responses were received from thirty examiners and of those, 24 examiners indicated they would not allow certified examinations to be videotaped (roughly 70%) and six (three in Calgary and three in Edmonton) indicated they would allow videotaping.

Ross J. noted that locating and appointing a certified examiner who would accept videotaping would lead to difficulties with the MIR appointment process. Inherent to the process was the importance of neutrality, hence the ability of the Superintendent, as an independent third party to appoint certified examiners if the parties cannot agree to same. If this neutral process was replaced with a process in which certified examiners are located and engaged by defendants, the neutrality would be jeopardized.

In addressing Issue #2 as to whether the Court had discretion to require videotaping in exceptional circumstances, the parties concurred the Court has inherent jurisdiction to order videotaping of a medical examination. Interestingly, the Court was not satisfied it had inherent jurisdiction to order videotaping of CMEs. Ross J. had already concluded that an entitlement to videotape was not consistent with the objective of the MIR, and that a discretionary order to videotape based on the current policy under the new Alberta Rules of Court would be equally inconsistent with the objective of the MIR.

Ross J. agreed with the Defendant's position that if the Court has discretion to order videotaping of CMEs, the Plaintiff has the onus to show compelling reasons for videotaping. In the Gordon action the Plaintiff pointed to no special circumstances in relation to the proposed CME that would justify videotaping. There was no need to decide whether there may exist special circumstances as none were presented in this case.

In Gordon the physicians had not scheduled a CME because the Plaintiff had made it clear she would not participate in a CME if the examiner would not permit videotaping. Although the Plaintiff did not fail to attend a scheduled CME (resulting in a presumption that the Plaintiff's injury was minor) the result of the Plaintiff's conduct was that the examiners would not schedule a CME. The Plaintiff took the position that in the circumstances her refusal to attend was the equivalent of a reasonable excuse for not attending a CME, and the parties had acted expeditiously in applying to the Court to have the issue resolved, and it would not be appropriate to deny access to a CME in these circumstances.

All parties and the Superintendent supported the position there should be one certified examiner who would conduct CMEs for all four actions. Accordingly the Court ordered the Superintendent to appoint a certified examiner within thirty days to conduct CMEs on the Plaintiff in relation to all four actions and the scheduling of an attendance at the examination would be effected according to the terms of the MIR. No videotaping would be involved.

No doubt this case law provides some much needed clarification on the issue of videotaping CMEs.

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.

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Alexis N. Moulton
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