The three-year mark is nearing since the overhaul of the Alberta Rules of Court (New Rules). These rules were implemented with the goal of making the court process more efficient and more cost effective. The transition period from the previous rules to the New Rules has had the growing pains expected with any change in legislation.
A good starting point to the interpretation of the New Rules is the Foundational Rules which color the approach that should be adopted in analyzing how our Courts will be interpreting how the civil litigation process is to proceed.
Three new cases were decided this year, in which CBM Lawyers were involved, that provide insight on how the Court is approaching the New Rules.
The decision in Tan v. Swyrd (2013 ABQB 229) serves as a cautionary tale regarding the Form 37 “Request for a Trial Date” as required by Rule 8.4(1). Under the New Rules, if one submits a Form 37, they must certify that all Expert Reports have been exchanged.
The main issues in this proceeding was dispute between the plaintiff and defendant regarding the payment of fees for expert reports whose reports the plaintiff served on the defendant after the parties had filed a Request to Schedule Trial Date under Rule 8.4. The plaintiff submitted a certified Form 37; and the matter was set for Trial. After this step in the litigation process occurred, the plaintiff served further expert reports that she intended to rely on at Trial after the Form 37 was filed with the Court.
Mr. Justice T. Wakeling was direct in his displeasure of the false certification and subsequently sanctioned the Plaintiff indicating that “(t)he plaintiff must suffer for the sins of her counsel. His sins are hers.” Accordingly the defendant was not obligated to indemnify the Plaintiff for the contested experts fees.
Justice Wakeling’s decision emphasized the purpose of Rule 8.4 – namely, that trials should not be scheduled until all expert reports have been exchanged in order to avoid adjournments that waste the time of the Court and the time of the parties whose actions are trial ready. Failure to follow this Rule can result in severe consequences.
Erkatu v. Wilson (2013 ABQB 297) comprised appeals of two Masters’ decisions regarding the Rules that govern the exchange of Expert Reports. The litigation between the plaintiffs and defendants in both actions was at an impasse. The plaintiff refused to provide the expert reports that they would be relying on at Trial and had brought an application to enter a Litigation Plan that stipulated a deadline for the defendants to conduct any medical assessments that they wished to conduct of the plaintiffs. The defendants did not wish to decide whether a medical assessment would be necessary without knowing what experts the plaintiff was intending to rely on at Trial.
Both Masters granted the Litigation Plans which placed deadlines on the defendants to conduct any medical assessments of the plaintiffs without first having the reports from the plaintiffs’ experts.
Mr. Justice Nielsen relied on the Foundational Rules to inform his decision. Mr. Justice Nielsen interpreted the Foundational Rules to mean that the civil litigation process should be expeditious, economic, and result in just resolutions to ensure that both parties to a law suit will be treated fairly. His decision established that nothing in the New Rules prevents a defendant from waiting to rely on Rule 5.41 and 5.44 to determine whether to schedule a medical examination until after a plaintiff has disclosed its expert report(s) under Rule 5.35. There was no legislative intent present to require the defendant to take any initiative under Rule 5.41 prior to the plaintiffs’ disclosure under Rule 5.35.
Mr. Justice Nielsen further stated that requiring a defendant to schedule a potentially unnecessary medical examination is counter intuitive to the Foundational Rules. It did not promote timeliness or cost-effectiveness.
Prior to the New Rules, there was no sequence required in providing expert reports. The only requirement was the 120 day deadline. This posed many issues for defendants as it was a guessing-game of preparation to determine what issues the plaintiff would raise. Under the New Rules, plaintiffs can no longer sit on their expert reports until a Trial has been scheduled. With the New Rules, expert reports are produced earlier and timelines are now shortened. Defendants are now in a better position to respond to a substantive claim which in turn facilitates earlier settlement.
Justice Nielsen’s decision affirms the foundational principles of the New Rules in encouraging efficiency and reducing expenses. While defendants were often at a loss under the Old Rules, the New Rules have provided a more balanced playing field for defendants’ counsel to utilize their time more efficiently and substantively. The decision now allows counsel to compel the Plaintiff to attend their chosen expert in order to prepare a rebuttal report. This reduces the potential prejudice to the defendant’s in trying to meet the case of the Plaintiff.
Kohlendorfer v. Northcott (2013 ABQB 145) involved two separate personal injury actions that addressed the uncertainty in the videotaping of medical assessments. More specifically, the issue that arose was what use a defendant can make of the video once it has been received. Applications were made by two plaintiffs who similarly raised issues relating to the use of videotapes of the medical examinations they underwent. The applications were heard together by Madam Justice Read.
In both cases, the plaintiffs attended medical examinations that were videotaped. The plaintiffs provided a copy of the videotape along with letters restricting the use of the videotapes by the defendants. Specifically, the plaintiffs barred the defendants from providing the videotape to the medical examiner who was featured in the video, before the medical examiner completed the final report.
In one action, the defendants brought an application for an order directing that the medical examiner be provided with and permitted to review the recording before completing their final report.
In the other action, the medical examiner refused to provide a final report from his examination until he was permitted to review the video recording of the examination he conducted.
Madam Justice Read held that medical examiners are permitted to review the video recording of their medical examination before completing their reports. Furthermore, defence counsel is now permitted to review such video recordings.
At the heart of her decision was the Foundational Rules found in Part 1 of the New Rules. Namely, that the purpose and intention of the New Rules was to ‘provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost-effective way’. The underlying necessity is to ensure that the medical examination was conducted properly and that the report was accurate based on the examination.
Defendants are now put on a more equal footing by requiring that the videotape be provided to them “as soon as practicable”. This avoids the issue of trial by ambush and better allows a defendant to make full answer in defence.
Madam Justice Read’s decision provides a straight forward interpretation of Rule 5.43. In a time where overly technical strategic thought can hinder counsel, this decision is a reminder that the Rules exist to serve the purpose of reducing the complexity of claims.
Going forward, it is evident that a balance must be struck between the plaintiff’s privacy and the need for accurate evidence. Justice Read signaled that the line should be drawn at the defendant and the insurance adjusters viewing the videotape. Although she did not completely bar the idea from future claims, the necessity of allowing further viewers of the videotape will be decided on a case-by-case basis. As the issue of the defendant’s experts viewing the video recording made during the examination of another of the defendant’s experts was not raised, it remains to be seen how far Rule 5.43 applies.
Although the New Rules have brought immense change to the world of litigators, the judgments given by Justices Wakeling, Nielsen and Read offer consistent interpretations of the New Rules, and offer insight and guidance on how to approach them. The Foundational Rules are clearly meant to be the starting point for any dispute regarding the New Rules.