On April 21st, a 3-2 majority of the Ontario Court of Appeal held that it was not ready to change an established rule that demands orders for the audio recording of defence medical examinations to be based on a reason particular to the facts of the case.
The plaintiff in a claim arising out of an automobile accident sought an order imposing a condition that a defence medical be recorded. The request was supported by an affidavit from counsel that alleged systemic bias amongst defence medical experts and a systemic concern about inaccurate reporting of plaintiff statements. The affidavit included evidence of four cases of alleged inappropriate conduct. The plaintiff also raised concerns acknowledged in Justice Osborne’s report on civil justice reform and Justice Goudge’s report on pediatric forensic pathology. She did not raise any concern about the expert proposed by the defence.
Justice Armstrong wrote for a three judge majority. He held that the Court of Appeal’s 1992 judgment in Bellamy v. Johnson established that orders to record medical examinations must be based on the facts of a specific case. Though acknowledging concerns about systemic unfairness, Justice Armstrong held that the evidentiary record before the Court was insufficient to establish a new rule.
Justice Lang wrote for the two judge minority. She questioned the meaning of Bellamy stated by the majority, but nonetheless held that a requirement to prove a case-specific basis was overly-restrictive. Justice Lang said that orders for a defence medical should include a condition permitting the plaintiff to record the examination unless a motion judge is persuade (by the defence) that the recording would compromise the examiner’s ability to learn the plaintiff’s case or about his or her condition.
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