Law Times

Law TiMes • May 10, 2010 NEWS Appeal court rules on defence examinations Should plaintiffs have the right to record? BY MICHAEL McKIERNAN Law Times I n a split decision one per- sonal injury lawyer calls "too narrow," the Ontario Court of Appeal has overturned a lower court ruling that would have made taping of defence medical examinations a virtu- ally routine practice. Th e fi ve-judge panel ruled 3-2 against reconsidering the test for a request to record, which was set out nearly two decades ago in Bellamy v. John- son, and instead called on the civil rules committee to look into the issue. Th e Bellamy test puts the onus on the plaintiff to prove there is case-specifi c evidence to justify a recording. "Th at strikes me as too nar- row," Allan Rouben, a personal injury litigator from Toronto, says of the latest ruling. "If there is no evidence that the recording of the examination is detrimen- tal to the doctor's ability to con- duct the examination, I'm hard pressed to see what the harm is in allowing it to occur. It ensures there's a reliable record there." Rouben says the special circumstances surrounding examinations justify routine recording when the defence requests them. "You have to remember that this is a compelled examina- tion. Th e plaintiff is forced to share intimate details about their medical, physical or sometimes psychiatric exami- nation with a stranger. It can be very intrusive, and there's no doubt it is an adversarial position because they are hired by the defendant." In the current case, Adams v. Cook, plaintiff Lindsay Adams was injured in an auto accident and diagnosed with cervical whiplash. At trial, the defendant asked for an examination, which Adams agreed to on the condi- tion of having a recording. When counsel for the de- fendant refused, Adams' lawyer submitted an affi davit alleging systemic bias by medical profes- sionals who act for the defence in personal injury cases and citing matters where he said the doctor was no more than a "hired gun." A motions judge in the Ontario Superior Court accepted that ev- idence, a fi nding the Divisional Court later upheld. Subscribe to Law Times Why pay extra for your legal news? Cutting-edge legal affairs, news and commentary for just 44¢ a day! Make the time for Law Times and keep up with all the developments in Ontario's legal scene. Subscribe today and receive: • Unlimited access to the Law Times digital editions and to our digital edition archives...FREE • Canadian Legal Newswire, a weekly e-newsletter from the editors of Law Times and Canadian Lawyer...FREE Justice Robert Armstrong, writing for the majority on the appeal court, said the previous rulings were in error because the lawyer's evidence didn't re- late to the case. "It is not enough simply to allege general bias on the part of doctors who do defence," he wrote, noting counsel for the plaintiff hadn't expressed con- cern about the doctor chosen in this case. "To put it bluntly, there is not a scintilla of evi- dence that he is a 'hired gun.'" Doug Wallace, a lawyer with Wallace Evoy-Smith LLP in London, Ont., who acted for the defendants, says the verdict was a relief. "Th e medical specialist in this case was tainted with sys- temic bias even though there was no evidence whatsoever of bias against him. Th at would be dangerous if it were upheld because it tarred all experts with the same brush. So fair- ness has ruled the day." In a dissenting decision, Jus- tice Susan Lang called the re- quirement for case-specifi c evi- dence of bias "overly restrictive" Defence examinations can be 'very intrusive' and involve an 'adversarial position' for the plaintiff, says Allan Rouben. and said the silence of the Rules of Civil Procedure on the issue allowed the court to revise the Bellamy test to refl ect an "in- creased awareness about the par- tisan nature of expert evidence" since the 1992 decision. Rouben agrees with her stance, pointing to the case of discredited pediatric pa- thologist Dr. Charles Smith as evidence of changed attitudes towards expert testimony. "Before the Goudge inqui- ry, it might have been thought that Charles Smith was some- one who was very highly re- garded, and his opinions were treated as gospel by the courts. But that turned out not to be the case." In the end, Armstrong re- ferred the issue to the civil rules committee, saying it was better to canvass a wide range of in- terested parties, a move Wal- lace welcomes. "When you talk about re- cording defence medicals, you're talking about half the medicals in the case, not both. Th e concern the court had here was how to ensure a tactical ad- vantage is not given to one side or the other. Since Jan. 1, ex- perts are now required to sign an acknowledgment that their duty is to the court fi rst and foremost and not to the party that retained them. Th e rules have just been changed, so let's see if those changes respond to some of the issues relating to expert bias." LT PAGE 5 At Kent Legal we know not just anybody can do the job. That's why we've taken extensive measures, like using the latest technology, tools and top recruiters to ensure we not only match the right applicant for your position, but that we do it in the best response time. 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