The Defendant, Cahill, was sued by his brother-in-law, Murphy, in Alberta and in Ireland. Immediately before the Trial in Ireland was due to commence, Cahill suffered a stroke. The Trial was adjourned, and Irish counsel for Murphy obtained an Order from the Irish Court to obtain additional evidence of Cahill’s medical status, which was never received. Instead, a medical opinion letter was proffered by Cahill, and Murphy’s counsel sought a medical report from another doctor. Murphy was allowed to enter all of these reports into evidence in the Irish Action, but Cahill requested that the Alberta Courts strike out Murphy’s medical opinion because it disclosed Cahill’s depression.

Madam Justice Veit considered whether Murphy could use the reports in the Alberta Action. First, Justice Veit noted that Rule 6.11(1)(f) may govern whether the Defendant’s medical report is evidence. The Justice reviewed the history of the Rule, and considered the case law under former Rule 263 to help interpret Rule 6.11(1)(f) which, the Justice clarified, was intended to “allow applications to be heard on the basis of existing evidence only where such reliance does not create unfairness for the Parties” [emphasis in original]. Justice Veit concluded that, for the purposes of the Applications, it could be assumed that Rule 6.11(1)(f) referred to all evidence produced in any other Action, including the medical opinion submitted in the Irish Action.

Justice Veit also considered whether that evidence should be permitted in Alberta. Her Ladyship observed that Cahill had received notice of the intended use of the opinion, and had sufficient time to consider the implications of its use. Although Rule 6.11 did not identify the test for the Court to determine whether permission should be granted to adduce evidence from a different Action on an Application, Justice Veit summarized the relevant factors using prior case law.

Justice Veit concluded that Cahill’s medical evidence was not compelled, and the use of the evidence did not breach the implied undertaking rule which was encompassed within Rule 5.33. Cahill used his health as an excuse for the adjournment of the Irish Trial, so he could not complain that his evidence had been compelled. Justice Veit also held that the context in which the medical opinion was obtained was sufficiently similar between the two Actions - Cahill had used his medical status in an attempt to avoid procedural obligations – so it was only fair and reasonable that all of the evidence which was available in the Irish Action should be made available to the Alberta Court. Her Ladyship also considered Cahill’s argument that the use of the medical opinion should not be permitted because, in submitting to the assessment for the Irish Court, he was not allowed the protections available to an Alberta Defendant under Rule 5.42. Justice Veit opined that if the Irish Court issued the Order to receive the health evidence on its own motion, Rule 5.41 would not apply; but, if the Irish Order was obtained by Murphy because he was not satisfied with the medical information provided by Cahill, Rule 5.41 was broad enough to cover the Order. Justice Veit concluded that, if the medical opinion had been dealt with in Alberta through the use of Rule 5.41, the Court would give permission to use the opinion, even though none of the options available under Rule 5.42 were made available to Cahill. Justice Veit also observed that the principles espoused in The Ikarian Reefer, [1993] 2 Lloyd’s LR 68 (QBO) were no mystery to Alberta Courts and the principles were to be saluted: experts were not to engage as advocates, but they must be independent in the sense that they would give the same opinion if given instructions by the opposing party. Justice Veit concluded that the reference to The Ikarian Reefer decision did not taint the medical opinion proffered by Murphy. Justice Veit also held that Cahill’s medical opinion letter would be subject to Rule 6.11(1)(f) because it was evidence produced in and for the proceedings. Her Ladyship concluded that it was clearly fair that Murphy’s medical opinion be considered along with Cahill’s materials. Justice Veit also held that Murphy’s medical opinion should be admitted as evidence.

Justice Veit considered whether Cahill should be relieved of the obligation to present himself for Questioning on his Affidavit. Her Ladyship relied on Cahill’s materials and held that they did not disclose any reason why he could not present himself for Questioning.