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PAGE 8 COMMENT June 21, 2010 • Law Times the just, most expeditious, and least expensive determination of every civil proceeding on its merits." Yet, in a 3-2 decision in Ad- ams v. Cook, the Ontario Court Time to allow routine recording of defence medicals T he Rules of Civil Pro- cedure are to be "liber- ally construed to secure of Appeal ruled against the routine recording of defence medical examinations (also known as independent medical examinations) and sanctioned the continued practice where- by a plaintiff must establish "something about the facts of a specifi c case that suggests to the court that an examination should be recorded." So instead of routine record- ings, we must continue with ex- pensive motions in which plain- tiff s attempt to meet an elusive standard. Why? Because it's always been that way? Because we should wait for the civil 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 rules committee to study the issue? Well, times have changed, and it's time the courts recognized the need for routine recording of defence medicals. Th e chief reason for a defence medical is the pursuit of evidence to es- tablish an exaggeration of in- juries, malingering or outright fraud. Th e defence medical is thus part of the adversarial pro- cess and an integral part of the discovery phase of a lawsuit. So why don't we record q Send me 1 year of Law Times for only $159.00 (Total with GST: $166.95) Name: __________________________________________________________________________ Company: _______________________________________________________________________ Address: ________________________________________________________________________ City: ____________________________ Prov: _______________ Postal Code: __________________ Tel: ( ) _______________________ Fax: ( ) ______________________ Email: ____________________________________________________________________________ q Payment enclosed q Charge my: q Visa q Mastercard q American Express Card #: __________________________________ Expiry Date: ___ / ___ (mm/yy) Signature (required): ________________________________________________ Date: ________________ 240 Edward St. Aurora, ON. L4G 3S9 Tel: (905) 727-0077 Fax: (905) 841-4357 Mail or fax this form to Law Times them? At trial and in their re- ports, experts are allowed to ex- press their opinions. Th e opin- ions must be based on facts. Th e facts come from a number of sources, including statements made during the defence medi- cal. So why would we want any process in which the facts un- derlying an opinion could be in dispute? Do we really want to encourage a situation where the defence expert and plaintiff ar- gue about what was said during an examination? But isn't this exactly what we invite when we don't allow the defence medical to be recorded? Th e board of directors of the Canadian Society of Medi- cal Evaluators objects to the routine recording of defence medicals. Recently, it stated its position "that the use of elec- tronic recording is generally undesirable and unnecessary and creates a signifi cant poten- tial to invalidate the evaluation process." No reasons are given to support the conclusion that the mere existence of an inex- pensive tiny electronic record- ing device would invalidate or adversely impact a defence LT Sub ad - 1-4-3X.indd 1 5/26/10 11:09:06 AM Social Justice By Alan Shanoff medical. Th e society also says there are "no identifi ed medical indications to record" defence medicals. Of course, there are no medical indications in such cases. Th e physician conduct- ing the medical isn't treating the plaintiff . Th e plaintiff isn't attending the defence medical for therapeutic reasons. But there are legal indications to support recording it. Others argue the very fact an examination is being taped will aff ect the integrity of the process. If so, I suppose we should stop taping proceed- ings before the Supreme Court of Canada. Isn't it obvious that recording an event enhances evidence of the event and has little impact on its integrity? Isn't that why we now require police interviews with suspects to be taped? In the electronic world in which we live, taping is fast becoming the norm of daily life. I understand some doctors will refuse to participate in a defence medical if taping is re- quired. Good. Get rid of those doctors. Th ey shouldn't be con- ducting defence medicals in the fi rst place. Th ey clearly don't un- derstand the role of an expert in our adversarial litigation system. Th e Trial Lawyers Associa- tion of British Columbia has recently issued a recommen- dation that defence medicals be routinely taped. It points out that the recording of the medical "enhances the court's access to the truth." It states, correctly, that "with respect to parties or witnesses, however, whether lay or expert, the dy- namics of an adversarial system introduces pressures that leave the door open to conscious or even subconscious polariza- tion. It is naive to assume . . . that a medical expert who gen- erates signifi cant income from providing [medicals] for a par- ticular 'interest group' is com- pletely immune to these pres- sures, whether they are acted on or not." Surely, this should be obvious to any reader of the Goudge or Osborne reports. Th e affi davit in support of the plaintiff 's position in Ad- ams gave four specifi c examples of systemic bias among health practitioners who conduct de- fence medicals. So if we want "to secure the just, most expe- ditious, and least expensive de- termination" of personal injury actions on their merits, it's time to allow the routine recording of defence medicals. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e- mail address is ashanoff @gmail. com. Evidence in Family Law (LT 1-3x4).indd 1 www.lawtimesnews.com 6/18/10 10:07:46 AM www .lawtimesnews.com Includes a FREE digital edition!

• Cover
• Charter Rights
• Dodging A Bullet
• Focus On Family Law