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In cases involving personal injuries in Ontario, defendants are given a virtually automatic right to have the plaintiff examined by a health practitioner. Section 105(2) of the Courts of Justice Act provides that “Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.”

The rationale for the rule is that by commencing an action for damages, a claimant puts their health condition in issue and it would be unfair not to permit a defendant to challenge this with evidence from a physician of their choosing. The question has arisen whether plaintiffs should be permitted to tape the examination. It is not uncommon for the parties to have differing memories as to what was said or done during the examination, and there is concern amongst many plaintiff’s counsel about the independence of physicians who earn much of their livelihood from the conduct of defence medical examinations.

The Courts have generally taken a conservative approach to permitting defence medial examinations to be video or audiotaped, requiring a showing of bias on the part of the doctor involved before allowing a plaintiff to do so. In the decision of Adams v. Cook, 2010 ONCA 293, a five judge panel of the Ontario Court of Appeal was asked to revisit the issue. In a 3-2 decision, the Court declined to permit the routine taping of defence medical examinations, holding that there are important issues requiring study by the Civil Rules Committee and the input of interested medical and legal organizations before such a step could be considered. The majority acknowledged that there was a basis for a change in practice:

I recognize that this court constituted as a panel of five judges is in a position to broaden the application of Bellamy and, in effect, make the recording of defence medicals a more or less routine practice. No doubt a case can be made for doing so. Arguably, the litigation landscape has changed in the 18 years since Bellamy was decided. Legitimate concerns have been expressed by the Honourable Coulter Osborne and others in respect of the role of experts in the civil litigation process. The findings and recommendations of my colleague, Justice Goudge in his report, Inquiry into Pediatric Forensic Pathology in Ontario: Report (Toronto: Ontario Ministry of the Attorney General, 2008) suggest similar concerns arise in criminal cases. Some contend that the routine recording of defence medicals and the transparency it produces would improve the discovery process. Given the electronic world in which we now live, it is perhaps at least questionable whether the presence of a small recording device is likely to have any adverse affect on a medical specialist’s examination.

The reasons of the dissenting judges well explained the basis for permitting the routine taping of defence medical examinations unless doing so would interfere with the proper conduct of the examination:

The Chief Justice constituted this five-judge panel specifically so that it could reconsider the principles in Bellamy. In light of the developments since Bellamy was decided 18 years ago, that reconsideration should take place.

As I have said, it appears that the majority in Bellamy concluded that a case-specific reason or bias on the part of the proposed examiner is required. In my view, any requirement for a case-specific bias on the part of a defence examiner is overly-restrictive for three reasons.

First, it is unreasonable to expect that an individual plaintiff or a plaintiff’s lawyer could amass the data necessary to support such an allegation. Such an undertaking would be inordinately difficult, expensive and time-consuming.

Second, in Bellamy at p. 593, Brooke J.A. quoted the Divisional Court’s statement that a defence orientation “is immaterial short of misconduct that should be subject to a report to the College of Physicians and Surgeons”. If it is necessary to prove a defence orientation to the level of professional misconduct, rarely would a court impose a recording condition when ordering a defence medical.

Finally, the inevitably personal nature of an attack alleging actual bias, if unsuccessful, could put the plaintiff at risk of alienating the examiner who will pronounce on his or her medical condition. The plaintiff may unnecessarily be left with an increased concern about the examiner’s ability to report objectively.

Maintaining the integrity of the litigation process is at the heart of this dispute. As both the majority and dissenting judges acknowledged, further study on this important issue is called for. In the meantime, in my view the dissenting judges got it right.