Benc et al. v. Parker et al. 2012 ABCA 249
Insurance - Automobile insurance - Accident benefits - Certified examiner’s medical opinion
Benc commenced an action against the appellant arising out of a motor vehicle accident. The appellant requested that Benc attend for a certified medical examination pursuant to the Minor Injury Regulation to assess whether her injuries were “minor injuries”, which would cap damages for non-pecuniary losses. Dr. Stelmaschuk was advised of his selection as certified examiner on November 18, 2010. Section 9(1) of the Regulation stated that “The certified examiner must make reasonable efforts to schedule the assessment of the claimant for a time that is convenient to the claimant and that is within 30 days of the referral to the certified examiner”. On December 16, 2010, Dr. Stelmaschuk sent a fax to Benc’s counsel listing eight alternative dates, all after December 18, 2010. Benc’s counsel took the position that Dr. Stelmaschuk had failed to comply with s. 9(1) of the Regulation and Benc was not required to attend any subsequently scheduled examination because the original examination had not been held within 30 days of the referral to the doctor. The appellant applied for an order setting a peremptory date for Benc to attend a certified medical examination with Dr. Stelmaschuk.
A Master of the Alberta Court of Queen’s Bench interpreted s. 9(1) to require only that Dr. Stelmaschuk make reasonable efforts to schedule the examination within 30 days of referral, not that the examination itself had to be held within that period. She ruled that Dr. Stelmaschuk made the reasonable efforts required by s. 9(1) and she declared that the appellant retained the right to require Benc to attend before a certified examiner under the Regulation. Benc appealed.
The Alberta Court of Queen’s Bench (the chambers judge) agreed that s. 9(1) did not require the certified examination to be held within 30 days of referral, but concluded that Dr. Stelmaschuk had not made reasonable efforts to schedule the assessment. The chambers judge declined to determine whether the appellant was entitled to require Benc to attend an examination in the future. The appellant appealed.
The Alberta Court of Appeal allowed the appeal in part. The court held that Dr. Stelmaschuk made reasonable efforts to schedule Benc’s certified examination as required by s. 9(1) of the Regulation. Either party could apply for a determination in advance of trial that Benc had no reasonable excuse for not attending to be examined by Dr. Stelmaschuk (s. 10(3) of the Regulation). If she established that she had a reasonable excuse, either party could reschedule her certified examination at their option.