In any claim for personal injury, 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):

“In deciding whether to permit the tape recording of conversations which occurred during a “defence medical” the court must consider the potential impact of that recording on:

1. The opposing party’s ability to learn the case it has to meet by obtaining an effective medical evaluation.
2. The likelihood of achieving a reasonable pre-trial settlement.
3. The fairness and effectiveness of the trial.”

The first factor predominates, and neither the doctor’s personal preferences nor the possible effect of a recording device upon the confidential nature of the proceedings or its potential effect upon the rapport between the examining physician and the plaintiff should be taken into account.

Moreover, each application to permit tape-recording during the examination will depend on its own facts.  If the moving party demonstrates the potential for a bona fide concern as to the reliability of the doctor’s or plaintiffs account of any statements made during the examination, and if the moving party proposes a method and terms of recording examination which would provide both parties with a full and accurate record of the statements in a timely fashion then an order permitting the recording would be appropriate.

Moroz v. Jenkins, 2010 ONSC 4789 at paras. 5-8.

With the passage of time, the issue of recording the defence medical examination was recently revisited in Adams v. Cook et al. 2010 ONCA 293 and the Moroz case cited above. In Adams, the Court refused to require the defence medical examination to be recorded, stating that the issue was better left to the Civil Rules committee (to change the Rules of Procedure). Conversely, Moroz permitted recording, where the plaintiff had psychological problems that could impair his ability to present an accurate history and to later recount what occurred during the examination. Interestingly, the Court placed limits on Moroz’s use of the videotape at trial, effectively requiring him to provide the defence with a videotape of his own expert exam, before being permitted to utilize the tape of the defence exam at trial.

Against this backdrop, hopefully the Rules committee will address this issue, and attempt to drag one facet of our court system into the 21st century.

A Proposed Method Forward:

Assuming the current Rule remain unchanged, the question presents itself, how to best protect injured clients from potentially biased defence medical examiners? Having given this some thought, I would suggest the following:

1. Review the Bellamy, Adams and Moroz line of cases closely to determine whether your client may be within an exception, such that recording may be permitted.
2. If your client may be within an exception, confer with defence counsel (in writing), making clear you would like to resolve the matter without the need for a motion. As suggested by Moroz, consider videotaping your own expert’s examination. If no agreement can be reached with the defence, bring a motion.
3. If your client does not appear to fall within an exception, ask the defence for permission (in writing) to videotape the examination anyway, stating that you will provide the videographer, and that the videographer will remain silent and stand in the corner, not obstruct the examination in any manner. If possible, provide the name of the videographer.
4. After the defence denies your request, which they invariably will, do a follow up letter, indicating that you respect their position, but will be sending a videographer with your client to the appointment anyway, should the doctor choose to permit the examination to be videotaped. Of course, your client will proceed with the examination if the videographer is barred from the examination, but the doctor will have to explain at trial just exactly what it was about their examination that they didn’t want the jury to see.
5. At trial, if appropriate, you could first raise the issue with your client, about showing up with the videographer, how the doctor refused to conduct the examination with him present etc.
6. Thereafter, you could raise the issue with the defence expert to suggest bias (Remember, doctors are supervised extensively in training, and performed their duties in front of other doctors, nurses, admin staff and patients. As such, there should be nothing about a video camera that prevents them from doing their job). Likewise, if defence counsel required them to videotape their examinations, it’s certainly something they could do. So does the problem only arise when the request comes from opposing counsel?
   Additionally, where a defence doctor bars a videographer from an examination, it certainly gives rise to the suggestion that the doctor has something to hide. After all, if there was room in the exam room for the videographer to stand, and he was there on the date of the examination, and ready and willing to record it, what exactly was it about the exam that the defence doctor didn’t want the jury to see? (A rhetorical question for closing).
7. Obviously, it would be preferable to simply record such defence examinations……… but until our court system begins to lose its aversion to technology and progress……. the best bet for many plaintiffs may well be to use the tools available to them to discredit the defence doctors.

To discuss these ideas further please contact GTA lawyer Michael Lesage directly by calling 617-495-8995 or emailing michael@michaelsfirm.ca.