ADACSI v AMIN, 2013 ABCA 315
HUNT, PAPERNY AND O'FERRALL JJA
5.44: Conduct of examination
The Appellant Plaintiff sought damages for injuries from a house fire. Three people died in the fire. The Appellant survived, but was hospitalized for several months and claimed compensation for debilitating injuries preventing employment, resulting from the alleged negligence of the Defendant landlords. The Plaintiff was in her late thirties with a significant family history of Huntington’s disease.
Certain medical professionals had opined that some of the Plaintiff’s symptoms could relate to Huntington’s disease. The Respondents successfully applied in Chambers for an Order under Rule 5.44(2), requiring the Plaintiff to submit to a blood test for the presence of the Huntington’s disease mutant gene. The Chambers Judge granted the Order, finding that the proposed test was reliable and useful, and though a blood test was intrusive, it presented no real health risks.
On Appeal, the Appellant argued first that blood samples as ordered did not fall within the text of Rule 5.44(2), the Rule was not broad enough to include blood samples, the examining health care professional’s ability to take samples meant that a laboratory technician could not do so, the Rule did not explicitly say that a Court could require a person to attend for a test, and the Rule’s phrasing required samples to be taken contemporaneously. The Court dismissed these arguments as either at odds with the context, purpose, or a logical reading, of the Rule.
The Appellant also argued that the Chambers Judge erred in exercising her discretion to Order the Appellant to submit to blood tests. The Court dismissed the Appeal, holding that the possibility of the Appellant having Huntington’s disease was not frivolous in this case. The Appellant chose to sue for damages and could not deprive the Respondents of the opportunity to acquire evidence that might assist in their defence of the damages claimed against them.View CanLII Details