C.A. Splits 3-2 Against Routinely Allowing Recording of Defence Medical Exams

In Adams v. Cook, a five-member panel of the Court of Appeal declined to change the ground rules laid down in 1992, in Bellamy v. Johnson (1992), 8 O.R. (3d) 591(C.A.), as to when an audio recording of a defence medical examination is permissible. Justices John Laskin and Robert Sharpe agreed with Justice Robert Armstrong in allowing an appeal from a Divisional Court ruling, which had ordered that the examination be recorded. Justices Susan Lang and Eileen Gillese dissented and would have upheld the Divisional Court decision.

The case was a personal injury action arising out of a motor vehicle accident. The plaintiff was diagnosed by her family doctor as having “cervical whiplash”. The defence sought to have the plaintiff examined by a physiatrist. The plaintiff agreed, on condition that the examination be audio recorded, a condition to which the defendant did not agree. As a result, the defendant moved for an order compelling the plaintiff to attend to be examined without conditions.

In opposition to the motion, the plaintiff’s lawyer filed an affidavit in which he made no allegations about the particular physiatrist whom the defendant’s counsel had selected. However, he claimed in his affidavit that health practitioners who perform defence medical examinations are often “hired guns” and that a systemic bias against personal injury plaintiffs exists among them. He said that the “temptation to use corrupt practices and ulterior strategies”, which he said “is rife within the industry” could be “precluded by audio taping and videotaping the assessments”. This would, he said, be “an exercise to preserve the integrity of truth, justice and fairness”.

There was no evidence that the doctor in question objected to the use of an audio recorder at the examination.

The defendant’s motion was dismissed by Justice John Brockenshire, who felt that the affidavit of the plaintiff’s lawyer (who was not cross-examined) showed “the potential for a bona fide concern — that could be construed as compelling”.

The defendant obtained leave to appeal to the Divisional Court, but the appeal was dismissed.

In the Court of Appeal, the Court elected to sit as a five-judge panel. The majority rejected the conclusion of Brockenshire J. and the Divisional Court, that it was unnecessary for the plaintiff to demonstrate a concern about the particular doctor whom the defendant had chosen to conduct the examination. The Court said: “It is not enough simply to allege general bias on the part of doctors who do defence medicals in order to obtain such orders [i.e., orders permitting audio taping of the examination]”. That, in a nutshell, was the basis for the majority’s decision to allow the appeal. The majority felt that its earlier decision in Bellamy had made clear the need for evidence of a basis for concern in the particular case. (And the majority observed that “there is not a scintilla of evidence that [the physiatrist chosen by the defence] is a ‘hired gun’.”)

Justice Armstrong acknowledged that the five-member panel was in a position to reconsider the Court’s 1992 decision in Bellamy and to lay down new rules governing defence medical examinations. However, he recognized that the effects of doing so could be far-reaching and concluded that the evidentiary record in this case was not sufficient to permit such a wide-ranging inquiry. If this is to be done, he said, the task should be undertaken by the Rules Committee.

Accordingly, the appeal was allowed and the examination by the physiatrist chosen by the defendant was ordered to proceed without conditions.

The minority acknowledged that Bellamy had focused on case-specific issues in determining whether to permit recording. However, Lang J.A., writing for herself and Justice Gillese, did not think that the Bellamy decision precluded consideration of more systemic issues, such as those raised in this case.

Justices Lang and Gillese felt that in 1992, experts’ reports were widely considered to be inherently reliable but that in 2010, that was unfortunately no longer the case. They noted that while the relationship between a treating physician and patient is one involving trust and confidentiality, the relationship between a plaintiff and an independent examiner has no such characteristics. Finally, they pointed to the ubiquity of recording of many quotidian activities (ATM transactions, calls to customer support lines, police interviews) and noted that modern digital technology would allow recordings of examinations to be made with minimal disruption. They would have dismissed the appeal.

It seems likely that this is an issue that will now surface at the Rules Committee.

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