Case Report – Majority of Ontario court holds firm on rule for taping defence medicals

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.

Adams v. Cook, 2010 ONCA 293.

Case Report – Nova Scotia judgment a sign of things to come on litigation and non-party privacy?

On June 30th, the Nova Scotia Supreme Court issued a judgment in which it dismissed a motion for production of documents. Though a routine motion, the Court’s reasoning may demonstrate a more modern approach to production in civil disputes, and one arguably invited by the pending changes to Ontario’s Rules of Civil Procedure.

The plaintiffs brought a motion for production in furtherance of their action against an investment dealer and an individual investment advisor. They sought documents pertaining to complaints brought by other clients against the advisor based on a claim that the dealer failed to supervise the advisor. The Court applied the “semblance of relevance” test called for by Nova Scotia’s now-replaced Civil Procedure Rules and held that the records should not be produced. Though it framed its analysis as being about relevance, the Court clearly weighed the relative value of production against its impact on non-party privacy:

In my view, the documents pertaining to other clients’ trading accounts handled by Mr. Bagnell under Mr. Youden’s supervision fail to meet the test of relevancy. Similar act evidence of this sort has little probative value to an examination of the handling of the plaintiffs’ trading accounts and in my opinion, is not necessary for disposing fairly of the proceeding. The subject allegation of inadequate supervision, whether framed in negligence or as a breach of fiduciary duty or breach of contract, will require the court to determine the appropriate standard of care and/or scope of fiduciary duty owed to the plaintiffs. That is going to be informed largely by evidence of industry standards and practices, the workplace manuals of RBCDS pertaining thereto (which already have been produced), the contract between the parties, and perhaps the introduction of expert opinion evidence. How Mr. Youden supervised the trading accounts of other clients of Mr. Bagnell would have little probative value in this determination, especially where different clients often have different investment objectives and risk tolerances in their trading activities. I am simply not persuaded that the production of these records would likely lead to the discovery of admissible evidence in this action…

The second reason for denying this application is based on confidentiality concerns. If the documents sought were ordered to be produced, there would be some unknown number and identity of other clients whose personal financial affairs would now be disclosed in this litigation, unbeknownst to them. Personal financial information is a very private and sensitive subject to most individuals. While I recognize that the implied undertaking rule would offer some protection, confidentiality concerns nonetheless remain and in the absence of any compelling argument of relevance such that the production of these documents is necessary for disposing fairly of the proceeding, those confidentiality concerns become an added reason for the dismissal of this application.

This is arguably the type of reasoning that will be invited when Ontario’s new Rules of Civil Procedure come into force on January 1, 2010. The landmark changes to the Rules will be brought in by O. Reg 438/08. This amending regulation will establish proportionality as a governing principle for interpreting the Rules, establish bare relevance as the threshold for production and establish a list of factors that a judge or master should consider in making discovery-related orders. The amendments do not expressly contemplate protection of non-party privacy as a relevant factor, and the impetus to the Rule changes (the Osborne Report) is primarily about affordability of civil justice as between parties to litigation. The changes do, however, invite a more nuanced approach to civil production, and the balancing of non-party privacy interests reflected in this Nova Scotia case may become more common.

MacGowan v. RBC Dominion Securities Inc., 2008 NSSC 421.