In Aherne v. Chang, 2011 ONSC 3846 (CanLII), Mr. Justice Paul Perell decided an appeal from a decision of Master Short. The Master had ordered that if the defendants in a medical malpractice action were to require that the plaintiffs undergo a defence medical examination and were they to provide to the medical examiner any records of surveillance conducted on the plaintiff, those records must be also be given to the plaintiffs at the same time.
Justice Perell dismissed the appeal.
The effect of the decision extends beyond medical malpractice claims, as the same principle would undoubtedly apply in a personal injury action (MVA, occupier’s liability, products liability, etc.)
In this case, the objection made by the defendant was, as summarized by Justice Perell, that “early disclosure of the surveillance records is unsupported by the authorities; that it would enable a plaintiff to deceive the health practitioner; and that no useful purpose is served in disclosing prematurely the surveillance records, which will be disclosed to the Plaintiffs later when the health practitioner’s report is delivered.”
We do not disagree with the order that was made in this case. In our experience though, the usual practice in these situations is to do one of two things:
- have the IME conducted in the usual way but without providing any surveillance to the medical examiner. Then, once the examination has taken place but before the report has been prepared, provide the surveillance records to the examiner, so that he or she can incorporate that information into the report. The Aherne decision would require that the surveillance be given to the plaintiff at the same time, but by then, the plaintiff would not be in a position to “deceive the health practitioner”; or
- wait until after a report of the examination has been provided and then send the surveillance to the examiner, who can be asked whether his or her opinion would be affected by that information. If so, a second report can be obtained and served. The surveillance would also have be provided to counsel for the plaintiff in that event.
In the case of the second course of action, an interesting question arises as to whether the surveillance must be disclosed, should the medical examiner not prepare a second report. Justice Perell referred to Rule 33.06(1), which provides that a written report must be delivered following a medical examination conducted under the authority of s. 105 of the Courts of Justice Act. (This is the familiar independent or “defence” medical examination.) Since a report must be provided in relation to that examination, there is not much doubt, in our view, that privilege is waived on any documents or information provided to the medical examiner to assist in the preparation of the report.
However, if the practitioner has prepared his or her report without seeing the surveillance, then Aherne has no application. Once the report contemplated by Rule 33.06(1) has been served, there is no explicit obligation in the Rule, to prepare or serve a supplementary report, even if the practitioner is provided with new information. Of course, failure to obtain and serve a new report would probably preclude the introduction of evidence from the practitioner at trial, commenting on the surveillance.
So, it seems to us that if a defendant is really worried that early disclosure of surveillance will allow a plaintiff to “deceive” a practitioner retained to conduct an IME, that problem is easily addressed in the manner outlined above.