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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Alexis N. Moulton
Events from this Firm
19 Dec 2017, Webinar, Calgary, Canada

McLennan Ross previously conducted a webinar on June 6, 2017 about the passage of Bill 17, during which we reviewed the changes to the Employment Standards Code and the Labour Relations Code. During that webinar, we identified a number of issues which would depend upon the language of the Regulations, which had not yet been developed.

24 Oct 2018, Webinar, Calgary, Canada

A written employment agreement is an often ignored best practice for non-union employers. A written agreement can be a critical risk management tool if it properly sets out duties, rights and expectations both during the employment relationship and after it ends.

5 Nov 2018, Webinar, Calgary, Canada

Who Should Attend: This webinar is intended for superintendents of schools, central office personnel, HR personnel, in house counsel and school board trustees.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
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).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions