Koehn appealed the dismissal of his Application to dispense with videotaping the Defence medical examination of Nguyen. Nguyen had retained an orthopaedic specialist to complete a medical examination and Koehn selected an Edmonton orthopaedic specialist, Dr. Russell, to conduct a Defence medical examination of Nguyen. Nguyen wished the examination to be videotaped, but Dr. Russell refused the request and indicated that he would not permit a nominee health care professional to be present during the medical examination. Koehn’s counsel contacted six specialists to determine if they would perform the Defence medical examination with videotaping; four responded that they would not, while two others said that they would. Counsel for Koehn did not wish to retain any of the four specialists who indicated they would allow videotaping, providing reasons that related to potential bias, credibility issues and not knowing the specialists as he had not previously retained them.

Moreau J. began by noting that Rule 5.44(5) pertained to the conduct of the medical examination itself and not to how the medical examination was recorded. Next, Moreau J. went on to consider Rule 5.3(1) and observed that it is similar to former Rule 216.1(1), which was contained in Part 13, Division 1 of the former Rules, under the title “Discovery of Records”. In contrast, former Rule 217(5), which permitted a party being examined to have a nominee medical practitioner present during the examination, was contained in Part 14, rather than Part 13 of the former Rules. Moreau J. stated that this made it appear that former Rule 216.1 did not apply to permit waiver of a party’s right to have a nominee present. Further, Alberta case law supported the conclusion that there was no recourse to Rule 216.1 under the former Rules to deprive a party of his or her election to have a nominee present during the medical examination.

In the current Rules, Rule 5.3(1) is contained in Division 1 of Part 5 and Part 5 also contains Rule 5.42(1) in relation to Defence Medical Examinations, which suggested to Moreau J. that the Court now has the power under Rule 5.3(1) to modify or waive the Plaintiff’s right of election under Rule 5.42(1) if the conditions set out in Rule 5.3(1)(a) or (b) are met. Moreau J. interpreted Subrule 5.42(1) and (2) as authorizing the Court to limit the manner in which a Plaintiff may exercise his or her options under Rule 5.42(1) in relation to recording or witnessing of a Defence Medical Examination. Based on the inclusion of these specific provisions that do not expressly limit the circumstances in which the Court may exercise its discretion, the Master was not constrained by the conditions set out in Rule 5.3(1).

Further, Rule 5.42(1) does not require that a Plaintiff demonstrate the potential for a bona fide concern as to the reliability of the doctor’s account of any statements made by the Plaintiff during the examination. Moreau J. was of the view that it was for the party seeking to dispense with videotaping to justify the Court exercising its discretion to deprive the person being examined of his or her entitlement to have the examination videotaped under the new Rule. Moreau J. stated that Rule 5.42(1) now secures the entitlement of a Plaintiff to elect in favour of video and audio-recording of the Defence medical examination, unless the Court orders otherwise.

In this case, there was no evidence indicating why the six specialists refused videotaping and no evidence that it might impair their ability to conduct a proper and effective medical examination. Moreau J. noted that it was the refusal of the specialists to permit videotaping that was limiting Koehn’s choices, not the actions of Nguyen in insisting on an option the Legislature determined he could elect to exercise. While Moreau J. stated that, in an appropriate case, where there was cogent reasons provided to justify dispensing with videotaping, the Court had discretion under Rule 5.42(1) and (2) to do so. In this case, the Court was not satisfied that asking for videotaping had a mischievous purpose.

Further, Koehn did not provide specific reasons why he did not wish to select any of the specialists from the pool of those that would allow the examination to be videotaped. One specialist had even signed a form indicating that while he would not permit the examination to be videotaped, he would permit a nominee to be present and this specialist was one of those counsel for Koehn favoured. Moreau J. held that the Master did not err in declining to confirm the appointment of Dr. Russell to perform the Defence medical examination as requested by Koehn. Such a selection would have deprived Nguyen of all the options set out in Rule 5.42 and in these circumstances, Koehn had not established that Nguyen should be deprived of all of those options. The Appeal was allowed to the extent of entitling Koehn, at his election to be exercised within 30 days of the release of the reasons, to choose a specialist to conduct the examination who would allow videotaping or to choose one who would agree to the presence of a nominee.