Ontario Appeal Court overturns decision that would have widened scope for taping defence medical examinations

In a 3-2 decision, the Ontario Court of Appeal has reversed a lower court ruling that would have allowed taping of defence medical examinations in most (if not all) cases where a request is made, based on an alleged “systemic bias” among health practitioners who undertake medical examinations for the defence. 
In doing so, the majority on the court also declined to reconsider the court’s 1992 judgment in Bellamy v. Johnson, which set the ground rules for permitting the audio recording of a defence medical.
Writing for the majority, Ontario Court of Appeal Justice Robert Armstrong conceded “the litigation landscape has changed in the 18 years since Bellamy was decided” and that “legitimate concerns” have been expressed by the role of experts in the civil litigation process.
But in Adams v. Cook, Armstrong said “the record…is insufficient to 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.”
Armstrong further noted that changing the parameters for defence medical examinations should be a matter for the Civil Rules Committee.
In Adams v. Cook, plaintiff Lindsay Adams was injured in an auto accident. Her family doctor diagnosed her injury as cervical whiplash.
Counsel for the defendant, Helen Cook, sought an order to have the plaintiff examined by a specialist in physical medicine and rehabilitation.
The plaintiff agreed, but only on condition that the examination be audio recorded. Counsel for the defendant did not agree with this condition.
Before a motions judge, counsel for the plaintiff made no allegations against the medical specialist selected. Rather, he suggested there was a systemic bias among health care professionals who undertook medical examinations for the defence.
He submitted an affidavit describing certain scenarios in which defence medical examiners were, in the words of plaintiffs’ counsel, no more than “hired guns.”
The lower courts agreed. A motions judge, Ontario Superior Court Justice John Brockenshire, said the instances described in the lawyer’s affidavit demonstrated “the potential for a bona fide concern that could be construed as compelling.” He disallowed the defendant’s motion to conduct the examination without conditions.
The Ontario Divisional Court upheld Brockenshire’s decision. The Divisional Court made several references to Bellamy, and found that the bona fide request to tape an examination “should not be interpreted to require a specific factual foundation of potential abuse or concern directly attacking the credibility of the doctor chosen by the defence…”
The Ontario Court of Appeal disagreed, and overturned the decision of the Divisional Court.
“While I agree that it may not be necessary to attack the credibility of the doctor, there has to be something about the facts of the specific case that suggest to the court that an examination should be recorded,” Armstrong wrote for the majority. “It is not enough simply to allege general bias on the part of doctors who do defence medicals in order to obtain such an order.”