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CIVIL PROCEDURE - Discovery - Physical or psychological examination

Friday, April 12, 2019 @ 8:42 AM  

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Appeal by the defendants from a decision of a chambers judge limiting a medical examination by a health care professional of the respondent minor. The respondent was injured at school when a classmate threw a badminton racquet which struck her, causing permanent damage to her eye. She alleged that because of her injuries, her vocational potential was adversely affected and she would have reduced income in the future. The parties agreed that the respondent should undergo a vocational assessment, but the respondent refused to consent to an examination that included an interview which would occur without counsel present. The appellants applied for an order directing that the respondent submit to an examination by a clinical psychologist who would prepare a vocational assessment. The psychologist proposed to conduct an interview of the respondent and to perform several tests. The chambers judge imposed limitations on the length of the interview, on two questions that the psychologist proposed to ask, and on the number of tests. She restricted the length of the assessment to seven hours, including a one-hour interview. The chambers judge permitted most of the proposed testing but concluded that four of the proposed tests could not be conducted and further that there could be no standard psychological tests unless agreed to by the respondent.

HELD: Appeal allowed. The chambers judge limited the medical examination based on what appeared to be no more than the names of the tests themselves, based on her own interpretation of their merit. The plaintiff did not adduce any affidavit evidence to show why the tests proposed were harmful to her, or any expert evidence to show the tests would be beyond the scope of a typical vocational assessment. The psychologist’s evidence did not provide any compelling reason to limit the examination. There were other protections for a plaintiff who underwent a medical examination. Rule 5.42(1) permitted a plaintiff to nominate a health care professional to be present during the examination, to videotape the examination and to make a word-for-word recording of the examination.

McElhone (Litigation representative of) v. Indus School, [2019] A.J. No. 300, Alberta Court of Appeal, P.A. Rowbotham, J. Strekaf and J. Antonio JJ.A., March 15, 2019. Digest No. TLD-April82019010