New Rules of Court Interpreted: Rule 5.41 and Medical Examinations

Case commented on: Nystrom v. Ranson, 2011 ABQB 116

The Plaintiff alleged physical injuries resulting from a motor vehicle accident. He claimed that his physical injuries limited his present and future vocational options and claimed past and future lost income. No psychological harm was expressly alleged in the statement of claim. The Plaintiff proposed to introduce expert evidence from an occupational therapist and a vocational counsellor at trial, in addition to the evidence of a physician and an orthopaedic surgeon. The Plaintiff agreed to an examination by two of the Defendants’ experts, an occupational therapist and a vocational therapist, but brought an application to limit the length and scope of those examinations.

Master Schlosser confirmed that under the new rule 5.41, as under the old rule 217, the court has the power to limit or restrict a defence medical examination of a plaintiff. While the new rule 5.41 may have expanded what used to be considered an independent medical examination under old rule 217, the considerations applicable to the exercise of the court’s overriding discretion remain the same under the new rule (at para. 9).

Master Schlosser dismissed the Plaintiff’s application. He held that the nine hour test proposed by the defendant’s occupational therapist was not overly intrusive and he gave the expert some latitude in proposing a longer than average examination. Master Schlosser observed that a vocational assessment was not specifically included in the definitions under the new Rules and would not automatically be permitted without the agreement of the Plaintiff. Master Schlosser allowed the test proposed by the vocational counsellor even though the approach proposed was from a psychological perspective. Psychological issues were not expressly mentioned in the Statement of Claim, but Master Schlosser took judicial notice that a person’s health may be affected by their psychological and psychiatric health. Further, the Defendant put the Plaintiff’s psychological condition into issue in their statement of defence. The Plaintiff failed to demonstrate that the proposed testing was inappropriate or otherwise crossed the line set by the decided cases.

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