Written by: Kristina Roberts

The Alberta Court of Appeal released a decision on March 15, 2019, that will be influential in the personal injury area of practice. Brownlee’s own David Pick appeared on behalf of the Defendants/ Appellants in McElhone v Indus School , 2019 ABCA 97, and successfully appealed a decision of the lower courts to impose limits on a Plaintiff’s medical testing under Rule 5.41(2) of the Alberta Rules of Court.

Rule 5.41(1) provides that the parties to an action may agree that the mental or physical condition of a person is at issue and agree on a health care professional to conduct a medical examination of that person. Rule 5.41(2) allows the Court to order a person to submit to a medical examination and appoint a health care professional to conduct that examination.

In this case, the Plaintiff is a minor who was injured at school. She claimed that her injuries adversely affected her vocational potential. The parties agreed that the Plaintiff should undergo a vocational assessment. However, Plaintiff’s counsel refused to consent to an examination that included an interview of the Plaintiff. The Defendants applied for an order pursuant to Rule 5.41(2) directing that the plaintiff attend a vocational assessment by a clinical psychologist. The Plaintiff opposed the application.

At Master’s Chambers, the Master ordered the Plaintiff to attend the examination, but restricted it to testing agreed upon by the parties. The parties could not reach an agreement so the defendants appealed the order to a Justice. The Justice ordered that the Plaintiff attend the examination and that an interview could be conducted, but imposed limits on the length of the interview; some of the questions the psychologist proposed to ask; and the number and type of tests that could be conducted. The Defendants appealed the Court’s decision to impose these limits.  The test for imposing these types of limits had not yet been articulated under the new Rules and therefore this was a novel question of law before the Court of Appeal.

The question considered by the Court of Appeal was phrased as follows: once the court has ordered a medical examination, what limits can be imposed on the health care professional, and what is the test for imposing such limits? 

The Court of Appeal agreed that the court should not curtail, fetter or otherwise limit the manner by which an expert proposes to conduct a medical examination unless there is a “compelling reason” for the court to interfere. The court rejected the Defendant’s suggestion that the test should be whether there was a “real risk of serious harm” to the Plaintiff, as that would set the bar too high. The “compelling reason” test would include a risk of injury, but also other types of hardship.

The Court of Appeal went on to explain that a reason to limit an examination would be considered “compelling” if the plaintiff’s interest in curtailing the examination both significantly outweighed the objectives of full pre-trial discovery and did not unfairly prevent the defendant from responding to the claim. The onus to satisfy this test is on the party seeking to limit the examination.

The former leading case in this area, Tat v Ellis, 1994 ABCA 260, was distinguished on the basis that it was decided according to the old Rules, and only applied to the specific issue of whether the court could order a test by someone other than a physician. The Court stated that “at most the Tat factors might be used as a threshold test to determine whether the proposed assessment should be ordered at all.”

In this case, the Plaintiff did not adduce any evidence as to why the proposed medical tests would be harmful to her and therefore the Court of Appeal held that there was not a compelling reason for the court to interfere in how the examination was conducted. The decision of the lower court to impose limits on the medical examination was overturned.