Michael’s Law Firm Blog
Let's face it, many lawyers are terrible at math. Hiring a lawyer who can't do math can be a costly mistake.
For example, let's assume someone was disabled in a car accident on December 24, 2008, such that they were not able to do their job. They would be entitled to accident benefits for their lost income, commencing on January 1, 2009. For simplicity, let's assume they were entitled to $400 per week in lost wages, the maximum benefit, for a period of 104 weeks (at which point the disability test changes). Now, let's say we wanted to know the value of their claim on January 1, 2013, four years after benefits were first payable (perhaps for settlement purposes). Straight arithmetic tells us that $400 x 104 = $41,600.00. In the legal field, the straight math is wrong.
In any claim for personal injuries, the defendant is given the right to select a doctor to conduct a defence medical exam, often (erroneously) called an 'independent' medical exam. This right is provided to defendants by section 105 of the Courts of Justice Act, R.S.O. 1990. c. C.43 and Rule 33 of the Ontario Rules of Civil Procedure. Despite the passage of time, the prevalence of smart phones, the fact it is general practice in many jurisdictions, and the common law right to record your conversations, recording defence medical exams is not generally permitted in Ontario.
The first Ontario case to suggest that recording of medical examinations could be permitted was Bellamy v. Johnson, 1992 CanLii 7491 (On. Ca). In that case, the plaintiff's request to record the defence medical was ultimately denied. In declining to endorse the routine recording of defence medical examinations, Doherty J.A. indicated (in his concurrence, later adopted by the Court as the legal test):
Too frequently, Canadian Courts write overly long opinions or judgments. Specifically, it is not uncommon for judgments to run from the tens into the hundreds of pages. Such verbose judgments detract from the role of the Court, which is to set forth what the law is (if something is said, that no one understands, was anything really said at all?).
Likewise, verbose opinions create systemic inefficiency, requiring large amounts of time both to write, then later to read, analyze and try to determine "just what exactly does this mean or say." This adds cost and complexity to the system, which ultimately is borne by the public purse.