Adams
Continued From Page 1
broaden and set new parameters
for the making of orders requiring the recording of defence
medical examinations, which
would take into account all of
the complexities and nuances
that go with the conduct of such
examinations,” he explained.
He stressed that there was “not
a scintilla of evidence” presented
in the case before the court to
show that the defence expert in
question was a “hired gun”.
Rather, the plaintiff pointed
to alleged systemic bias among
defence experts, basing this
assertion on the professional
experiences deposed to by her
lawyer, which were not “
sufficient to draw any general conclusions,” the judge said.
Justice Armstrong said
recording defence medicals
raises many questions—such as
whether there should be a
reciprocal defence right to record litigation-oriented medical
examinations performed by
plaintiffs’ examiners.
Such issues are better addressed
by the province’s Civil Rules Committee which can canvass the
views of the medical profession,
insurers, and interested Bar
groups such as the Advocates’
Society, he concluded.
The majority went on to set
aside the order of the motions
judge and Divisional Court below,
which would have allowed the
whiplash plaintiff in the case to
audio record an examination by a
defence rehabilitation specialist
(she did not allege that this particular expert was biased).
“If Bellamy applies, the plaintiff has not proven specific facts
that justify audio recording of
the defence medical in this case,”
Justice Armstrong said, overturning the Divisional Court’s
judgment, which would have
effectively allowed the recording
of defence medicals on request
in most cases.
Douglas Wallace of Wallace
Evoy-Smith in London, Ont., who
represented the defendant on
appeal, told The Lawyers Weekly
the decision is simply the latest in
a line of cases to contribute to an
ongoing debate among lawyers
and judges across Canada.
“In the last five or six years
there have been a lot of motions
to require defence medicals to be
video-taped or audio-taped and
that creates an unfairness in the
system because for the most part
plaintiff independent medical
examinations are not audio- or
video-taped,” he said. “The
majority essentially held that
they weren’t prepared to revisit
Bellamy, and they would leave
the law as it exists.…In other
words there has to be some [evi-
dence of] bias on the part of the
assessing doctor or something
along the lines of memory
incapacity, or memory problems,
on the part of the [plaintiff]
claimant which, on the specific
facts of the case, would require
safeguards to be put in place for
the medical assessment in the
form of audio- or video- record-
ing. In this case, that evidence
wasn’t there, and what evidence
was presented was in the form of
what I referred to in the court as
‘war stories’ by a lawyer saying
‘I’ve had bad experiences with
defence medicals being biased in
the past.’ ”
At press time calls to the
plaintiff’s counsel, DiPierdomen-
ico Law Firm in Amherstburg,
Ont., had not been returned.
“It may be said, as a
practical matter, that
plaintiffs who may
want to record later
defence medicals
should consider
recording their own
litigation-oriented
expert examinations…
Bert Raphael of Vaughan,
Ont, a former Advocates’ Society
president who has done defence
and plaintiff’s work over the past
50 years, told The Lawyers
Weekly there are good arguments
for recording independent medical examinations conducted by
both plaintiffs and defence.
“I guess what’s sauce for the
goose is sauce for the gander,”
Raphael observed. He noted
recordings bolster the truth-seeking function in adversarial
cases. “I think that’s [an issue]
for the rules committee,” he said.
Advocates’ Society executive
director Alexandra Chyczij told
The Lawyers Weekly “we are
reviewing the decision and would
be pleased to provide input to the
Civil Rules Committee.”
Adams v. Cook arose from a
car accident which the plaintiff
says gave her severe cervical
whiplash. The defence sought an
order requiring her to be exam-
ined by a specialist in physical
medicine and rehabilitation. She
agreed, but only if the examina-
tion would be audio recorded.
The defence then moved in
Superior Court to compel her to
be examined without any condi-
tions. The plaintiff’s counsel
filed an affidavit attaching a let-
ter he wrote to the defence
explaining that the proposal to
audio record was based on his
belief that the recording was
necessary to ensure fairness and
to avoid a credibility contest
between his client and the
defence expert over what the
participants actually said during
the exam.
Reasons: Adams v. Cook, [2010] O.J. No.
1622.
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