One of the issues before the Court was whether obtaining a Medical Examination (“ME”) by a Health Care Professional of the Defendant’s choice (“Defendant’s Medical Examination”) pursuant to the Rules of Court precluded the Defendant from obtaining a Certified Examiner’s Medical Opinion (“CEMO”) in accordance with the Minor Injury Regulation, Alta Reg 123/2004.

The Court held that a Defendant’s Medical Examination and CEMO’s are not mutually exclusive and the Defendant had recourse to both during the course of the litigation. In particular, Germain J. noted that there are no provisions in the Rules of Court or the Insurance Act, RSA 2000, c I-3, the governing statute for the Minor Injury Regulation, that place “any type of an elective burden on litigants to use one process or the other”.

Moreover, the Court held that there are important distinctions between Defendant’s Medical Examinations and CEMO’s. For example, pursuant to the Rules of Court, only Defendants may request a Defendant’s Medical Examination, while either party to the litigation can request a CEMO. In addition, a CEMO is admissible in Court as prima facie evidence, whereas a Defendant’s Medical Examination is not admissible unless the parties agree or the procedure set out in the Rules of Court is followed.