Alberta Court Of Appeal Articulates New Test For Imposing Limits On Medical Examinations

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...