By Steven Rastin1
OTLA 2011 LTD Conference

Canadians are privileged to live in a country with one of the best health care programs in the world. We have highly-trained doctors, modern hospitals, and cutting-edge diagnostic tools. However, for all that, many of us are profoundly uncomfortable about making an appointment to see a doctor. The mere thought of having someone else poke and prod at you, run a series of tests, and potentially give you unpleasant news causes many of us to put off making medical appointments even when we should. Even without the stress of a lawsuit, it is a documented fact that the anxiety of just going into a doctor's office often results in a significant rise in blood pressure.2

This stress level is nothing, however, compared to the ordeal that many litigants face when they are forced to submit to defence medical examinations (DMEs) as part of the adversarial legal process. The DME doctor is not chosen by the patient, but rather by a company the patient has been forced to sue. The DME doctor is not bound by normal doctor-patient confidentiality, but has rather been specifically hired to pass on sensitive and private information to a third party. The role of the DME doctor is not to treat or heal, but simply to evaluate. The fundamental conflict between patient and DME doctor was expressed eloquently by Mr. Justice Doherty, speaking for the Ontario Court of Appeal, in Bellamy v. Johnson,3 when he observed:

Dr. Peerless [the DME doctor] appears to regard his examination as standing apart from the adversarial process. It does not. In conducting a "defence medical", a doctor is not operating within the bounds of the traditional doctor-patient relationship, where the doctor has been engaged by the patient whose trust and confidence in the doctor are essential to their relationship. Instead, the "defence medical" takes place in the context of an ongoing legal dispute where the examining doctor has been retained by the examinee's adversary. The examining doctor is not subject to the usual confidentiality requirements which are the sine quo non of the doctor-patient relationship. Indeed, the examining doctor's very purpose is to report his findings to the examinee's adversary. In making these observations I do not discount the independence of the doctor conducting the examination. I wish merely to highlight the distinction between the role of the examining doctor and their traditional role of a doctor who is examining a patient.

This is not to imply that there is anything inherently improper or untoward with respect to the DME examination process, but merely states the obvious truth that it is fundamentally different than the normal doctor-patient relationship. It would be equally unfair to automatically conclude that the DME doctor is biased. We have had many cases where DME doctors confirmed that our client was disabled, and in some cases the doctors have identified problems missed by other practitioners. We have been impressed enough with many doctors hired by insurance companies that we have begun to use them ourselves. However, the unfortunate reality is that not all doctors have demonstrated the same impartiality and professionalism when conducting DMEs. We have all come across cases where the doctor seems disinterested in what the client has to say; where he or she sees the client for only a few minutes but writes a lengthy, often impersonal, negative report; where the doctor conducts seemingly bizarre tests, or writes about observing the client in the parking lot or the waiting room, or where the doctor asks inappropriate and unnecessary questions about liability in an effort to discredit the claimant. The handful of doctors, on both sides, that have a reputation for less than total neutrality are generally known to lawyers and doctors, but a jury deciding an LTD trial is almost certainly unaware of professional reputations. Further, many of these doctors have excellent courtroom demeanours and make excellent witnesses against plaintiffs and for insurance companies.

For these reasons, it is not surprising that most plaintiff lawyers will do what they can to limit how many times they are forced to expose their clients to independent and defence medical examinations. Defendant insurance companies, on the other hand, complain that it is inherently unfair that the plaintiff is able to go to an unlimited number of medical experts for reports, while the insurance company is limited to a single examination. Fairness dictates, they would say, that both sides have equal access to the plaintiff. Plaintiff s counsel counters that the DME is an extension of the discovery process which takes place behind closed doors, without the presence of counsel and involves the placing of hands on the person and the probing of personal facts. The plaintiff herself is not just another piece of evidence. She is a person in her own right, and should be entitled to extraordinary protection when subject to such invasive and intimate examinations. It is worth noting that there is no common law right for a defendant to medically examine a plaintiff.

However, the right to conduct independent medical examinations does routinely form part of all contracts for long term disability insurance. A typical provision is as follows:

To be eligible for benefits, you must agree to undergo any medical examination or treatment likely to favour the recovery of your health, to the satisfaction of the insurance company. Failure to do so will result in suspension or termination of benefit payments. You will not be covered if you become disabled and you refuse to undergo a medical examination upon request by the insurance company.4

In addition, the right of a defendant to examine a plaintiff has been codified in the Courts of Justice Act5 and the Rules of Civil Procedure. The relevant portion of the Courts of Justice Act is Section 105 which specifies:

105.(1)In this section,

"health practitioner" means a person licensed to practice medicine or dentistry in Ontario or any other jurisdiction, a member of the College of Psychologists of Ontario or a person certified or registered as a psychologist by another jurisdiction.

Order

(2) Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.

Idem

(3)Where the question of a party's physical or mental condition is first raised by another party, an order under this section shall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe that there is substance to the allegation.

Further examinations

(4)The court may, on motion, order further physical or mental examinations. Examiner may ask questions.

(5)Where an order is made under this section, the party examined shall answer the questions of the examining health practitioner relevant to the examination and the answers given are admissible in evidence. R.S.O. 1990, c. C.43, s. 105 (2-5).

The CJA renders any debate moot as to whether it is appropriate to force a plaintiff to submit to invasive medical examination as part of the litigation process. The common law has been modified and any plaintiff knows at the commencement of litigation, that he is putting his entire medical history in issue and, as a condition of proceeding, and the insurance company will be permitted to explore any relevant medical issue.

But how many examinations can the LTD insurer conduct while adjusting and litigating a claim? The CJA clearly contemplates that more than one examination may be appropriate. The process for dealing with demands for medical examinations is set out at Rule 33 of the Rules of Civil Procedure which specifies:6

MOTION FOR MEDICAL EXAMINATION
33.01 A motion by an adverse party for an order under section 105 of the Courts of Justice Act for the physical or mental examination of a party whose physical or mental condition is in question in a proceeding shall be made on notice to every other party

ORDER FOR EXAMINATION
Contents of Order
33.02 (1) An order under section 105 of the Courts of Justice Act may specify the time, place and purpose of the examination and shall name the health practitioner or practitioners by whom it is to be conducted.

Further Examinations
(2) The court may order a second examination or further examinations on such terms respecting costs and other matters as are just.

DISPUTE AS TO SCOPE OF EXAMINATION
33.03 The court may on motion determine any dispute relating to the scope of an examination.

PROVISION OF INFORMATION TO PARTY OBTAINING ORDER
Interpretation
33.04 (1) Subrule 30.01 (1) (meaning of "document", "power") applies to subrule (2).
Party to be Examined must Provide Information
(2) The party to be examined shall, unless the court orders otherwise, provide to the party obtaining the order, at least seven days before the examination, a copy of,
(a) any report made by a health practitioner who has treated or examined the party to be examined in respect of the mental or physical condition in question, other than a practitioner whose report was made in preparation for contemplated or pending litigation and for no other purpose, and whom the party to be examined undertakes not to call as a witness at the hearing; and

(b) any hospital record or other medical document relating to the mental or physical condition in question that is in the possession, control or power of the party other than a document made in preparation for contemplated or pending litigation and for no other purpose, and in respect of which the party to be examined undertakes not to call evidence at the hearing

WHO MAY ATTEND ON EXAMINATION

33.05 No person other than the person being examined, the examining health practitioner and such assistants as the practitioner requires for the purpose of the examination shall be present at the examination, unless the court orders otherwise.

MEDICAL REPORTS

Preparation of Report

33.06 (1) After conducting an examination, the examining health practitioner shall prepare a written report setting out his or her observations, the results of any tests made and his or her conclusions, diagnosis and prognosis and shall forthwith provide the report to the party who obtained the order.

Service of Report

(2) The party who obtained the order shall forthwith serve the report on every other party.

PENALTY FOR FAILURE TO COMPLY

33.07 A party who fails to comply with section 105 of the Courts of Justice Act or an order made under that section or with rule 33.04 is liable, if a plaintiff or applicant, to have the proceeding dismissed or, if a defendant or respondent, to have the statement of defence or affidavit in response to the application struck out.

EXAMINATION BY CONSENT

33.08 Rules 33.01 to 33.07 apply to a physical or mental examination conducted on the consent in writing of the parties, except to the extent that they are waived by the consent."

In addition to the obligations placed on the parties by Rule 33, the courts have recently placed additional new obligations on experts with Rule 537 which stipulates:

53.03(2.1) A report provided for the purposes of subrule (1) or (2) shall contain the following information:

1. The expert's name, address and area of expertise.

2. The expert's qualifications and employment and educational experiences in his or her area of expertise.

3. The instructions provided to the expert in relation to the proceeding.

4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.

5. The expert's opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert's own opinion within that range.

6. The expert's reasons for his or her opinion, including,
i. a description of the factual assumptions on which the opinion is based,
ii. a description of any research conducted by the expert that led him or her to form the opinion, and
iii. a list of every document, if any, relied on by the expert in forming the opinion.

7. An acknowledgement of expert's duty (Form 53) signed by the expert.

Rule 53 has the potential to make a substantial difference in the way litigants and judges view the role of experts in our system. Form 53 requires all experts to personally verify that the opinion provided is fair, objective and non-partisan; that it is related only to matters that are within the expert's area of expertise; and acknowledge that they do not work for either party, but rather their role is to assist the courts in determining any matter in issue.

EXAMINATIONS UNDER THE CONTRACT AND THE RULES:
DO THEY GET BOTH?

A common problem encountered by claimants arises when an insurance company conducts one or more medical examinations pursuant to the contract of insurance, denies benefits based on those examinations, and then demands a FURTHER round of examinations pursuant to the Rules and Courts of Justice Act after the claimant commences litigation. A similar problem arises in the context of motor vehicle litigation when a claimant faces demands for further examinations during litigation after already submitting extensive examinations pursuant to the SABS.8 While there has been conflicting case law, the weight of judicial opinion appears to be falling down on the side of permitting the additional medical examination.

A number of early decisions supported the seemingly reasonable argument that pre-litigation medical examinations should properly be taken into account in determining whether a further examination under section 105 of the Courts of Justice Act warranted an unreasonable invasion upon the rights of the plaintiff. The leading decision here was Ebrani v. Citadel Assurance,9 where Madam Justice Lax said:

In May 1997, the defendant offered to have the plaintiff assessed by an orthopaedic surgeon, and without the benefit of counsel's advice, he went to see Dr. Michael Hall, orthopaedic surgeon, in June 1997. There is no evidence before me as to why a medical examination is again required. There is no evidence the plaintiff's condition has changed. I am of the view that this is for all intents and purposes a request for a second medical examination, which is intended to corroborate the opinion of Dr. Hall: see Lessar v. Radiak, [1956] O.W.N. 479 (Ontario Master).

A similar conclusion, in the context of long-term disability litigation, was reached by Mr. Justice Weekes in the unreported decision of Dowling v. The Great-West Life Assurance Company.10

Similarly, in a case involving a motor vehicle accident claim, Mr. Justice Valin, in Moore v. Royal Insurance Company of Canada,11 found that a prior medical examination undertaken in response to a claim for SABS is relevant to the question of whether a medical examination may be ordered by the Courts of Justice Act. He therefore concluded that a request by the defendant for a medical examination was a request for a second, and not an initial, examination. In two decisions before Masters, St. Pierre v. Liberty Mutual12 and Zinchuk v. Unum Provident Canada,13 Master Beudoin and Master Zinchuk respectively, both carefully consider the conflicting authority and found that pre-action examinations counted and both refused to permit "further" examinations.

The root case, which goes the other way, and finds an prima facie right by the defendant to compel additional medical examinations despite any number of pre-litigation examinations is Tsegay v. McGuire.14 In that case, Madam Justice Gillese (as she then was) was dealing with a request for a medical examination under Section 105 where there had already been an examination under Section 258.3 of the Insurance Act. She held that the primary examination did not constitute an examination for the purposes of Section 105 and therefore the insurer was entitled to an examination as of right.

In her opinion:

An insurer's right to require the plaintiff to undergo a medical examination pursuant to Section 258.3 of the Insurance Act is separate and independent from the right of a defendant to bring a motion for a medical examination pursuant to Section 105 and Rule 33.01. To hold otherwise would be to undermine the operation of the two regimes. The purpose of Section 258.3 of the Insurance Act is to give an insurer the right to an independent medical examination so as to provide early disclosure to all parties, thus facilitating prompt settlement of claims without the need for an action. The purpose of Section 105 and Rule 33 is to ensure that the defendant has full rights of production and discovery, once an action has been commenced and pleadings exchanged. These latter provisions ensure that if a party puts his or her medical condition in issue in a civil proceeding, the opposing party can test that allegation under fair conditions. A defendant is entitled to complete discovery in order to properly defend and assess the allegations in the pleadings. Medical reports are critical to the resolution of personal injury disputes. The choice of physician to conduct the defence medical examination is a matter of importance to the defence. Medical reports contribute to settlements and constitute the crucial expert evidence on which a jury relies to do justice between the parties, if the matter proceeds to trial. The policy behind the defence medical exam is to uphold the right of the defendant to conduct his or her defence and to assist the court at trial by furnishing expert evidence that the subject to the adversarial process. The timing of the medical examinations is also different. The nature of the claim may have changed from the time the insurer exercises its right under Section 258.32 to the time the action is brought.

Madam Justice Gillese's reasoning has been applied to long term disability litigation cases. See, for example, Harris v. Canadian Life Assurance Co,15 were Mr. Justice Nordheimer acknowledged that there was conflicting authority, but follow the reasoning of Tsegay and concluded that a prior examination conducted pursuant to the contract did not count as a first examination under Section 105 and therefore the defendant had a prima facie right to the additional examination. Justice Nordheimer also relied upon the unreported decision of Mr. Justice Pitt, Ribeiro v. Canada Life Assurance Company of Canada, which also allowed a further examination pursuant to Section 105. Justice Pitt found simply:

I am not satisfied that a medical examination prior to litigation for purposes of determining disability payments should disentitle the defendants to a defence medical.16

More recently, Tsegay has been followed in Baron v. Kingsway General17 and, more importantly, by the Ontario Divisional Court in LaForme v. Paul Revere Life Insurance Co.18 The Divisional Court noted most of the pro-Tsegay cases cited in this paper with approval and concluded:

1. The right of an insurer to examination under an insurance contract is entirely separate and distinct from the right a party has to request a medical examination under Section 105 and Rule 33
2. An examination under the contract between the parties, prior to litigation, does not pre-empts or nullifying the clear right to a medical examination under Section 105 and Rule 33; and
3. A defendant has a prima facie right to a first medical examination under Section 105 and Rule 33 without the need for evidence or justification.

The Divisional Court placed considerable emphasis on the fact that a plaintiff, in litigation, has the ability to be assessed unlimited times by medical experts of his or her own choosing without the knowledge of the defendant, both before and after the defence examination. As such, the court was of the view that Section 105 and Rule 33 basically operate to level the playing field and first medical examinations should be allowed as of right. While this decision likely precludes the argument pending further appellate consideration, it is somewhat curious that after finding that the defendant was entitled to an examination as of right, the court went on to make specific reference to the fact that Section 105 and Rule 33 are designed to prevent abuse of process. The court found it relevant to note:

In the present case there was no abuse of process nor was there an attempt to bolster an earlier opinion. Rather, it was a request to have the plaintiff seen by the same expert doctor who had assessed him two-and-a-half years earlier. It was not, in our view, an attempt to corroborate another medical opinion.

Would the analysis have been different if the plaintiff had been able to argue that there was abuse of process? Creative counsel prepared to take a risk might consider arguing that a bad faith attempt to corroborate a pre-litigation medical opinion through the use of a separate medical expert may be conduct which would justify the invocation of Section 105 and Rule 33 to prevent abuse of process.

This idea was considered in Binns v. Skinner Estate.19 This decision dealt with an appeal from Master Polika's order denying the appellant, a statutory third-party, the right to send the plaintiff to a further orthopaedic medical examination. The insurance company had previously sent the claimant to orthopaedic examinations pursuant to the SABS with both Dr. McGonigal and Dr. Silverstein. The same insurance company now sought to send the plaintiff to another examination with Dr. Finkelstein for the tort action. The master denied the request indicating the insurance company could obtain a report from one of the two orthopaedic surgeons who had already examined the plaintiff. Mr. Justice MacDonald followed the Tsegay decision and partially allowed the appeal. He ordered that the plaintiff must submit to a further medical examination. However, he stipulated that that further examination could not be with a new doctor, but rather the insurance company was limited to sending the plaintiff back to see one of the previous examiners. Justice MacDonald accepted the Tsegay analysis, but nevertheless found it was appropriate to consider the relationship between pre-litigation and s.105 examinations. He noted:

The elements of interrelation between the two types of claims here are not as close as they were in Tsegay, where both the earlier and the proposed medical examinations were in respect of the tort claim. Nonetheless, I am respectfully of the opinion that the medical examination provisions of the Insurance Act and its Statutory Accident Benefits Schedule on the one hand and Section 105(1) of the Courts of Justice Act and Rule 33 on the other hand should be given compatible interpretations. In my view, where two or more statutes enacted by a legislature and regulations made or approved under an Act of the legislature address the same subject matter without constituting a single scheme, they are "presumed to operate together harmoniously and to reflect a consistent view of the subject in question": see Driedger on the Construction of Statutes, 3rd edition (1994), at page 287. In Murphy v. Welsh, Major J for the court held that there is a presumption of coherence between related statutes. See also Maurice v. Priel.

I am of the view, therefore, that the prior medical examination under one statute or its regulation is relevant to the question of whether a medical examination properly may be ordered under the other statute or its regulation. As a result, I conclude that the master was not clearly in error in holding that the medical examinations conducted by the appellant for accident benefits purposes is relevant to the issue of whether it is now entitled to a further medical examination pursuant to Section 05 of the Courts of Justice Act and Rule 33.

Justice MacDonald applied Tsegay and ordered that the insurance company was entitled to a Section 105 examination, but at the same time he considered the prior actions of that same insurance company and placed appropriate limits to prevent abuse of process.20 In my view, it is arguable that the same sorts of considerations would apply in examining a request by a long-term disability insurance company to have the claimant examined by different doctors other than the ones that conducted the pre-termination examination(s).21

This potential argument was considered again and taken even further by Master Pope in the just released decision of Anderson v. 45859 Ontario Limited (c.o.b. Teacher Life Insurance Society (Fratemal).22 Here, the defendant sought to compel the plaintiff to undergo a further psychiatric examination. The plaintiff had already attended a psychiatric examination, a neuropsychological evaluation, and a psychiatric consultation based on solely a paper review. The defendant argued these pre-litigation medical evaluations had become outdated. The plaintiff countered that even when the pre-litigation medical examinations were carried out, the defendant was conducting surveillance and admitted that it anticipated litigation. The defendant claimed an unfettered right to a Section 105 examination and relied upon the authorities already discussed in this paper. Master Pope considered all these authorities, including the Divisional Court in LeForme, but nevertheless denied the right for a further examination. Master Pope placed great weight on the finding by the Divisional Court that there was no abuse of process nor attempt to bolster an earlier opinion in LeForme, but rather simply a request to have the plaintiff seen by the same doctor who had conducted the pre-litigation examination. Therefore there was no attempt to simply corroborate the earlier medical opinion.

Master Pope therefore found that LeForme could be distinguished from the case before him. He relied on Ebrani, Zinchuck and Harris, which he found to be directly on point and, by implication, not overturned by LeForme. Master Pope observed:

The fact that the defendant conducted a psychiatric examination and a neuropsychiatric examination of the plaintiff as permitted under the policy and prior to the commencement of this action is relevant to the fact that the request is now in the context of the litigation and pursuant different legislation. However, the test to be met by the plaintiff under both the statutory regimes is the same; that is, whether she is totally and permanently disabled from engaging in any employment for which she is reasonably suited by reason of education, training or experience due to physical or mental impairment... There is no new issue raised in the litigation that requires another psychiatric opinion. The defendants have presented no evidence that the plaintiffs condition has changed. There is no new diagnosis by any of the plaintiff's treating physicians or medical practitioners, nor do I find any new complaints made by the plaintiff subsequent to the insurer's examinations.23

Finally, in an apparent contradiction to some of the other authority, Master Pope placed great significance on the fact that the defendant could offer no good reason as to why it was necessary to have the plaintiff reassessed by a different doctor. Clearly, especially at the master level, there appears to be a significant willingness to put limits on Section 105 defence medical exams. The extent of those limits continues to develop.

Even if the LeForme decision does stand for the conclusion that there is an unfettered right to a new examination by the insurer after litigation commences, it is important to note that there are limits on that examination process. Consider, for example, the recent decision of Wice v. Dominion of Canada General Insurance.24 In this case, the insurance company wanted an in-home, all day assessment by an occupational therapist in the plaintiffs home with specified family members present. Madame Justice Eberhardt refused to order that the assessment proceed on those terms. In the first place, she noted that the case law demonstrates that an occupational therapist is not a medical professional as contemplated by Section 105 of the Courts of Justice Act. In the absence of sufficient authority placed before her to justify ordering an examination by a non-health practitioner has defined by the legislation, she declined to do so. She also noted that the plaintiff had raised case law where humiliation, invasion of privacy, and inconvenience were balanced against the necessity of a particular investigative method. She concluded that the proposed method examination was overly intrusive, that the litigation was proceeding too slowly, and she therefore declined to order that the examination proceed in the manner proposed by the defendant. While citing LeForme as authority that the defendant has a presumptive right to a defence medical, she ruled that it was within her authority to place reasonable limits upon the manner of conducting same.

A final consideration with respect to this topic is the potential impact of the changes to Rule 53 and the new obligations it places upon experts. The primary purpose of a medical examination conducted pursuant to the contractual provisions of a LTD policy is to provide a fair, objective and non-partisan evaluation of a claim for benefits. Provided that the insurance company and the medical doctor are acting in good faith, the pre-action examination is not about winning or losing, but is exclusively interested in coming to the correct and just determination as to whether the claimant properly qualifies for benefits. Interestingly, the new requirements of Rule 53 put the expert retained for litigation purposes in exactly the same position. The Acknowledgment of Expert's Duty Form requires that the expert act in a manner that is within his/her expertise, is fair objective and nonpartisan, and assists the court in determining a matter in issue. It seems clear that the intent of the rule makers and requirement of the judiciary with these new rules is to ensure that experts are not so much a part of the adversarial process as they are servants of the courts as judges and juries seek to come to a proper and just decision.

It may be open to argue that the rationale for distinguishing between pre-litigation examinations and Section 105/Rule 33 examinations as set out by the court in Tsegay and LaForme is no longer valid. These decisions were based on the idea that the purpose of an examination prior to litigation was to provide the insurer the right to a full disclosure and the ability to fairly evaluate the claim. A Section 105/Rule 33 examination, however, was meant to ensure that the defendant not only has full right of production and discovery but also the opportunity to properly defend, test and assess the allegations of the plaintiff in order to ensure justice between the parties if the matter proceeded to trial.

As Justice Gillese noted, "the policy behind the defence medical exam is to uphold the right of the defendant to conduct his or her defence and to assist the court at trial by furnishing expert evidence that is subject to the adversarial process."25 It is arguable, in my respectful submission, that the fundamental assumption which grounds Justice Gillese's analysis is that the defence expert's role is to assist the insurance company and the court by testing the evidence of the plaintiff in such a manner as to assist the defence in the adversarial process. However, pursuant to the new Rule 53, all experts whether testifying for the defence or for the plaintiff, are primarily present to assist the court to make a reasonable determination of the matters in issue based on the provision of fair, objective and nonpartisan evidence. Isn't that exactly the role of a medical expert conducting an examination prior to litigation pursuant to a contract of insurance? It will be interesting to see what creative arguments are advanced by counsel as to how this interesting and complex issue should, or should not, be reconsidered in light of the evolving role of the expert as a result of the new Rule 53.

VIDEOTAPING DEFENCE MEDICALS

Assuming that the parties have agreed that the defence is entitled to a medical examination, another interesting issue that is currently the subject of hot debate is whether it should be permissible to videotape that examination. This question has recently come before the Ontario Court of Appeal in the leading decision of Adams v. Cook.26 Readers reviewing this paper should take note of the fact that as a direct result of the Adams decision, the Rules Committee is considering making changes to the Rules of Civil Procedure to deal with the question of whether a medical examination should be subject to being videotaped. The Committee has invited a wide range of interested stakeholders, including the Ontario Trial Lawyers Association, to make submissions. As a result, there is a distinct possibility that the materials set out in this paper will soon be modified by legislative or regulatory amendment.

Until such time as the rules are modified, it is instructive to examine the current state of the law with respect to this issue.27 The debate about whether to videotape defence medicals is not new. On the one hand, the medical establishment has generally been reluctant to surrender the privacy it enjoys while conducting medical examinations. It has often been argued that the mere process of taping the examination will corrupt the process. In fact, several doctors have informed the courts that they would refuse to conduct an examination if it were to be videotaped.

On the other hand, lawyers argue that while Section 105 and Rule 33 are intended to examine the plaintiffs medical condition under fair conditions by the opponent; in too many cases the current system is simply not fair. Allowing another individual, even a doctor, to examine your physical or psychological condition in an adversarial context is inherently intrusive. All too often, not only is the client asked questions about her actual medical condition, but also about liability, family history, income, and a host of other matters related to credibility. The defence medical examination is an extension of the discovery process that is conducted behind closed doors and without the benefit of having counsel present. Proponents of videotaping examinations have submitted that in order for the examination process to be fair as intended by Section 105 Rule 33, it is necessary that:

The plaintiff be able to give a full and accurate explanation to his/her lawyer about what was said and what happened during the examination;
the plaintiff has the linguistic capabilities and cognitive and physical abilities to respond to the questions asked by the examiner and understand and recall what has been said during the examination; and there is an accurate and impartial account of the examination.

However, in many personal injury matters, these conditions for fairness simply cannot be met, either due to the plaintiffs physical or mental health issues (cognitive, physical and emotional deficits), limited education and understanding of the questions asked, or limited understanding of the English language. Further, even if the plaintiff has a full understanding of the process, the examining physician has the ability to take notes contemporaneously with the examination. If the plaintiff does not have the same opportunity, it is very difficult for the plaintiff to challenge the defence expert's recording of tests performed, questions asked and the plaintiffs responses to same. There is an inherent bias in favour of a physician. Therefore, when there are different accounts of what transpired during a defence medical examination, the burden the plaintiff has to prove that the recording of a physician is incorrect is tremendous. Unlike the recording of a treating physician or the recording of a plaintiffs medical expert, the plaintiff does not have the opportunity to correct the record of a defence medical expert.

It is therefore not surprising that plaintiffs would prefer that defence medical examinations be videotaped to level the playing field. The Ontario Court of Appeal was asked to consider the question almost two decades ago in Bellamy v. Johnson.28 The court recognized that disputes concerning what happened behind closed doors of a medical examination could impair rather than improve opportunity for settlement. It acknowledged that "to the extent that statements made during the examination become controversial, a full and reliable record of those statements would facilitate the fact-finding process. Indeed, in many cases it would avoid the controversy and expedite the trial." However, the court refused to grant an automatic right to videotape examinations. It held that a plaintiff has no right to determine how an examination is to be conducted or whether it is to be recorded. The court found that only it had jurisdiction in appropriate circumstances, to set the terms and conditions relating to a defence medical examination. In deciding whether or not to allow a recording device, Mr. Justice Doherty established three factors that the courts should consider in the future when dealing with that question:

1. The opposing party's ability to learn the case it has to meet by obtaining an effective medical evaluation;
2. The likelihood of achieving a reasonable pre-trial settlement;
3. The fairness and effectiveness of the trial.

In explaining this test, Justice Doherty characterized an effective medical examination as one which enables the examiner to provide the information set out in Rule 33.06, specifically the examiner's observations, conclusions, diagnosis, and prognosis. He found that recording should not be allowed if it would detract from the examiner's ability to provide this information. Regarding the likelihood of achieving a reasonable pretrial settlement, Justice Doherty noted that producing a full and accurate record of the examination might well enhance settlement prospects. Further, he was of the view that the fairness and effectiveness of trial might be augmented by videotaped evidence as the existence of such a record would facilitate the fact-finding process by avoiding controversy relating to what went on during the examination. This would generally expedite the trial.

With respect to whether an examination ought to be videotaped, Justice Doherty provided the following direction:

If the moving party [i.e. the party requesting the recording] demonstrates the potential for bona fide a concern as to the reliability of the doctor's or plaintiffs account of any statements made during the examination, and if the moving party proposes a method and terms of recording the examination which would provide both parties with a full and accurate written record of those statements in a timely fashion, then an order permitting the recording would be appropriate.

The Court of Appeal in Bellamy applied a logical and common sense approach to this difficult question which recognized the fact that having a plaintiff submit to a medical examination by a doctor chosen by the other side is inherently adversarial. This does not imply that there is anything improper about the role of the defence doctor or that he or she should automatically be considered biased, but simply recognizes the defence medical is an extension of the discovery process in an adversarial system.

The common sense approach from Bellamy has been widely applied. In Willits v. Romanidis,29 the defendants moved for an order compelling both plaintiffs to submit to an examination by a psychiatrist without the examination being videotaped and without copies of these notes being produced. Mr. Justice Quigley conducted an extensive review of the law. Without making any adverse finding concerning the proposed psychiatrist, Justice Quigley hit squarely upon the concern of many plaintiffs of the inherently imbalanced playing field of the defence medical examination. He cited an American authority which noted:

There is nothing inherently good or bad about the credibility function of an IME. If there is no court reporter or other third-party present at the examination, however, a disagreement can arise between the plaintiff and the doctor concerning the events at the IME. Plaintiffs attorneys are understandably uncomfortable with a swearing contest at trial between an unsophisticated plaintiff and a highly-trained professional with years of courtroom experience. They have searched for ways to level the playing field on the credibility issues arising from such examinations.30

He acknowledged that ordinarily the medical practitioner determines the degree of privacy of an examination and the courts generally do not override the doctor's professional judgment, but in the adversarial setting this needs to be balanced against the principle of fairness and the privacy rights of the plaintiff. Justice Quigley applied the test set out in Bellamy and rejected the argument that the mere presence of recording devices threatens the integrity of the examination. He concluded that the overwhelming medical opinion filed before him supported the efficacy and usefulness of videotaping these particular psychiatric examinations. Given that the examinations were highly subjective in nature and involved interpretation of the emotional demeanor, speech characteristics, varying voice tones, volumes and loudness, eye contact and facial expressions of the plaintiffs, he concluded that the plaintiffs would be unable to dispute the doctor's interpretations without objective evidence. Such a limitation would constitute a significant disadvantage, and he therefore found that the psychiatrist's refusal to permit video recording was unreasonable.

It is worth noting that in this case plaintiffs counsel had agreed to provide a video recording of the medical examination conducted by its own psychiatrist. It is unclear whether this offer of reasonableness played any part in the judge's decision.

A more recent case that did not allow videotaping of an examination is Sousa v. Akulu.31 Here, the plaintiffs counsel argued that the plaintiff had limited knowledge of English coupled with cognitive and memory problems that could lead to her being misunderstood without a recorded examination. However, the master ordered the plaintiff to attend a non-recorded examination. He found the plaintiffs evidence concerning her poor memory and lack of English proficiency was weak and did not outweigh the prejudice the defendants would suffer. The court considered the fact that the plaintiffs own experts examined her and wrote reports without videotaping. Given the purpose of controlling the defence medical examination is to balance the parties' rights, the master concluded that the plaintiffs had failed to satisfy the onus of providing a compelling reason why it would be necessary to videotape a psychiatric defence medical in this case.

The videotaping of a defence medical examination was similarly denied in Worrall V. Walter.32 This case involved a request by the plaintiff to require that a psychiatric examination conducted by Dr. Reznek be videotaped. Based on earlier written comments made by Dr. Reznek concerning the impact of videotaping any psychiatric assessment, it was the plaintiff's position that the doctor might have demonstrated a potential defence bias. In addition, the plaintiff alleged that he had problems with memory and concentration which supported the need to videotape the examination. The argument concerning bias by Dr. Reznek is fascinating. The doctor wrote a letter dated August 22, 2006 in which he complained that the use of videotaping defence medical examinations is singularly and manifestly unfair and creates an imbalance in the evidence presented to the court. He indicated that his experience with videotaping psychiatric interviews had taught him that he would have to err on the side of interpretation of the client's presentation that favour the plaintiff if his interview were videotaped and that the "process of videotaping forces me, therefore, to conclude in favour of the plaintiff." Dr. Reznek's letter had caused significant judicial concern about the possibility that he was admitting that his conclusions would change simply by being videotaped and the letter alone warranted ordering that any examination be recorded.33

In response to negative judicial comment concerning his previous letter, Dr. Reznek filed a new letter dated November 21, 2008, in which he represented that he was merely discussing the inherent danger of videotaping and he asserted for the court that he would always take care to remain objective in his assessments and his opinion would not change merely because the assessment was videotaped. Justice Tausendfreund accepted this as a clarification of the doctor's position and denied the request that the examination be videotaped on the basis that the supporting evidence for same was neither substantial nor compelling.

The judge found it significant that the plaintiff's examinations had not been videotaped. Noting that both sides of litigation should be granted equivalent tactical and strategic advantages, he relied on the unreported decision of McNorton where Justice Sproat observed:

If this case proceeds in front of a jury, then people on the jury would logically wonder why was it only the defence experts who were subjected to video scrutiny. The members of the jury would also be put to the less than desirable position of having to assess the reports on one side of the case, based on their notes and recollections of the meeting and the experts on the other side of the case based on a video review.... I think that the fairness and effectiveness of trial would be compromised by having only one sides experts videotaped.

Arguments that there is a fundamental difference between the plaintiff building his or her own case through the collection of medical evidence and submitting to the intrusive physical and psychological examination by an agent for one's adversary appear, therefore, to have been rejected by the courts.

A full panel of five Justices of the Ontario Court of Appeal has recently revisited the question as to whether defence medical examinations ought to be routinely videotaped. In Adams v. Cook, 34 the plaintiff was injured in a motor vehicle accident. The defendant sought an Order that the plaintiff be examined by a physiatrist. The plaintiff was agreeable to attending for the examination but only on the condition that it be audio recorded. The plaintiff advanced the argument that there was a systemic bias among health practitioners who undertook medical examinations for the defence and that defence medicals were used to gain admissions against interest from plaintiffs by the defence expert in the guise of the defence health practitioner. The defendant refused to consent to having the examination audiotaped and moved to compel the plaintiff to attend the examination without it being recorded.

The motion was initially dismissed on the ground that plaintiffs counsel had a bona fide concern. The Divisional Court upheld the decision on the basis of evidence of general bias in the conduct of defence medicals as attested to in the affidavit of counsel for the plaintiff. However, the Ontario Court of Appeal allowed the appeal and overturned the lower court's requirement that the examination be audiotaped. The court reaffirmed the Bellamy analysis and held that there had to be something about the facts of the specific case that suggested to the court that an examination should be recorded. They held it was not enough simply to allege general bias on the part of doctors who did defence medicals, but rather specific facts needed to be produced in the evidence that justified audio recording of the defence medical in each specific case. The motions judge and the Divisional Court were held to have erred in accepting the evidence that medical specialists were tainted by a systemic bias. Therefore the record in the Adams case was insufficient, based on lack of evidence against specific practitioners, to broaden the parameters of an order for the recording of defence medicals.

The decision of the majority was written by Mr. Justice Armstrong. He noted that while the parties had not expressly requested it, the case before them really amounted to a request to reconsider the courts' judgment in Bellamy. The critical aspect of this case was that the plaintiff made no allegations against any particular medical specialist, but rather pro-offered the opinion that there was a systemic bias among health practitioners who routinely did medical examinations for defendants. The defence doctor, alleged the plaintiff, was often no more than a "hired gun" who routinely wrote reports containing statements alleged to have been made by injured plaintiffs which, if contested, would create credibility issues. The best way to avoid such problems, and facilitate the search for truth, would be to audio or video record the defence medical examination.

Justice Armstrong conceded that there was potential merit to the plaintiffs position and that it might be appropriate to reconsider the principles set out in Bellamy.

He noted:

I recognize that this court constituted as a panel of five judges is in a position to broaden the application of Bellamy and, in effect, make the recording of defence medicals a more or less routine practice. No doubt the case can be made for doing so. Arguably, the litigation landscape has changed in the 18 years since Bellamy was decided. Legitimate concerns have been expressed by the Hon. Coulter Osborne and others in respect of the role of experts in the civil litigation process. The findings and recommendations of my colleague, Justice Goudge in his report, "Inquiry into Pediatric Forensic Pathology in Ontario," suggest similar concerns arise in criminal cases. Some contend that the routine recording of defence medicals and the transparency it produces would improve the discovery process. Given the electronic world in which we now live, it is perhaps at least questionable whether the presence of a small recording device is likely to have any adverse affect on a medical specialist examination.

However, Justice Armstrong was not prepared to make such a significant change based on the record before the court. The court was concerned that there is insufficient evidence in detail regarding the allegation of alleged systemic bias. The court opined that there was good reason for the Civil Rules Committee to consider whether changes to the system were necessary. In deciding whether to order that medical examinations the recorded, the court suggested that the following also be considered:

1. If such an order is made on a more or less routine basis, should the court order that subsequent medical examinations by expert doctors retained by the plaintiff be subject to the same requirement?
2. What else can be done to "level the playing field" for the defendant in respect of medical examinations by plaintiff's experts?
3. What about the unrecorded medical examinations that have been done by the plaintiffs experts prior to the defence seeking an order for medical? The concern here is that routine recording of the defence medical will give the plaintiff and unfair tactical advantage.
4. What obstacles, if any, are there to the conduct of an effective medical examination if all examinations are routinely recorded? Is it possible to generalize or are we driven back to the position of Doherty J.A. that what is involved is a case specific analysis?
5. Did the Hon. Coulter Osborne not make a recommendation that defence medicals be routinely recorded?
6. Will the reforms related to expert witnesses recommended by Coulter Osborne and implemented by amendments to the Rules of Civil Procedure be sufficient to deal with the perceived problems concerning defence medical experts?
7. How can the views of the medical profession be comprehensively canvassed together with the views of the Advocates Society, the Ontario Trial Lawyers Association, the American College of Trial Lawyers, the Canadian Medical Protective Association, the Medico-Legal Society and other interested organizations?

Writing for the dissent, Justices Lang and Gillese were more open to arguments related to systemic bias and would have permitted the defence medical to be recorded in this case.

Readers of this article should be advised that the Rules Committee has taken the directive of Mr. Justice Armstrong seriously and is now in the process of conducting a comprehensive review concerning whether medical examinations ought to be audio or video taped.

Adams was decided before the changes to Rule 53 were implemented. Two cases have subsequently considered both the Adams decision and the potential impact of the new Rule 53 which requires the expert to provide fair, objective and nonpartisan evaluations.

Master Short provides an excellent and detailed analysis in Bakalenikov v. Semkiw.35 After a comprehensive review of the old case law, the Adams decision, and the new Rule 53, Master Short applied the law to the specific case before him. He noted that the proposed expert in this case, on at least three occasions, had his opinions disregarded by the court for bias and advocacy for the defence. One judge had gone so far as to criticize the expert for delivering his evidence as an advocate for the party calling him as a witness. This particular doctor had deposed that he would refuse to conduct an assessment well-being taped. The judge found the new Rule 53 to be significant noting:

The court expects and relies upon frank and unbiased opinions from its experts. This is a major sea change which requires practical improvements the past opaque processes. How are longtime plaintiffs; and defendants' experts to be "trusted" to change their stripes? At the initial stages skilled, licensed professionals clearly must be taken at their word that on principle they take their Form 53 Undertaking to courts seriously. They are clearly promising to bring a new, transparent and objective mindset to the drafting of their reports and to their subsequent testimony.

The court found that would not be overly impractical, intrusive or an obstacle to have the report audiotaped. Master Short suggested in closing that, in the future, examinations by both sides ought to be audio recorded and distributed to the other side. His review of other jurisdictions led him to conclude that the national trend is clearly towards allowing audio and video recording as a quality control check on the process. He concluded that this trend will provide the parties and the court with confidence in the independence and competence of experts reporting on matters before the court.

Finally, in the recent decision of Moroz v. Jenkins,36 Mr. Justice Wood affirmed his view that Adams stood for the proposition that the test for videotaping evidence in Ontario remained Bellamy. Based on the evidence before him, supported by the plaintiffs medical doctors, that the plaintiff had clear evidence of psychological difficulties which could seriously impair his ability to present his condition or history appropriately on any given day, the judge agreed that it was appropriate to order that the examination be videotaped. Interestingly, however, he placed limits on that recording. He ordered that absent a recording of the plaintiffs psychiatric examination, the recording of the defence examination may not be introduced into court to contradict any findings of the defence psychiatrist in cross examination.

In other words, to ensure fairness, the videotape evidence of the defence examination would only be admissible if the plaintiff obtained a medical examination of his own that was videotaped and produced to the other side.

The law with respect to the videotaping of defence medical examinations is clearly evolving. Mr. Justice Armstrong, in Adams, has called for the Civil Rules Committee to revisit the issue with significant input from stakeholders, including the Ontario Trial Lawyers Association. At the same time, the new Rule 53 requirements for experts, developments in other jurisdictions in Canada, and changing technological capability all support the likely trend towards increased audio and videotaping of both plaintiffs' and defendants' medical examinations.

_____________________________

1The author would like to acknowledge the considerable assistance of my colleague Nicole Vaillancourt with the preparation of this paper

2 This is often referred to as white coat syndrome.

3 (1992), 8 O.R. (3d) 591 (0.C.A.)

4Taken from an actual LTD policy that is currently the object of litigation.

5 R.S.O. 1990, C. C.43, s. 105 (1); 1998, c. 18, Sched. G, s. 48.

6 R.R.O. 1990, Reg. 194

7 O. Reg. 438/08

8 It is noted that the two situations are not identical. The LTD case involves a pre-litigation examination (or multiple examinations) pursuant to the terms of the contract. The SABS case has the additional component of having a pre-benefit termination examination that is mandated by the relevant sections of the Insurance Act rather than private contract. However, both scenarios deal with situations where the plaintiff has submitted to examinations prior to the Statement of Claim being issued and the court being asked to determine what impact, if any, that prior examination has upon the right to request a further r.33 examination. While recognizing that the situations are not identical, the courts have generally looked at both somewhat interchangeably, and have considered previous decisions from both contexts to have precedential value.

9 [1998] O.J. No. 6279 (Gen. Div.)

10 (S.C.J. Court File No. 52580/99 (Newmarket), April 4, 2000, as set out in Harris v. Canada Life Assurance Company (2002), CanLii29429 (ON.S.C.)

11 [2006] O.J. No. 166 (0. S.C.)

12 [2001] O.J. No. 5973 (0.S.C.)

13 [2005] O.J. No. 321, 20 C.C.L.I. (4th) 153, 10 C.P.C. (6th) 55.

14 (2000), 1 C.P.C. (5th) 311, [2000] O.J. No. 1557 (S.C.J.).

15 Supra, note 10.

16(reported, February 8, 2002, S.C.J. Court File No. 99-CV-175770 (Toronto)).

17 [2006] OJ. No. 1067, 80 O.R. (3d) 290 (SIC)

18 [2006] O.J. No. 2508, 84 O.R. (3d) 634,43 C.C.L.I. (4th) 135 (Div. Ct)

19 [2000] O.J. 3739, 50 O.R. (3d) 275 (SO)

20 Consider also Morgan v. London Life, [2000] O.J. 3152 (SO) where Master MacLeod found that the plaintiff was entitled to challenge London Life's decision to have the plaintiff examined, not by the four original medical practitioners who had conducted the initial pre-termination examination, but by four completely different practitioners. The Master found that the plaintiff was entitled to inquire into the bona fides of London Life's selection of physicians.

21 Litigants considering this argument should be aware, however, of the recent decision of Sonny v. Sonnylal [2010] 0.J. No. 365 (SO) where Master Brott allowed a minor to be reassessed by a neuropsychologist different from the one that had conducted the assessment three years previously. The decision was upheld on appeal to Justice Pitt, however it is worth noting that Justice Pitt strongly implied at paragraph 12 of his reasons that this decision is not to overturn Master Brott was based on the standard of review and that he "may have come to a different conclusion is not a proper ground for granting the appeal." This statement strongly implies that Justice Pitt would have decided the question differently on the merits.

22(2010) CanLII 6585 (On.S.C.).

23 Anderson, supra, at para. 44-44.

24[2009] O.J. No. 3455, 78 C.C.L.I. (4th) 207, (50) leave to appeal refused [2009] 0.J. No. 5607.(SCJ)

25 Tsegay, supra, paragraphs 4-5; followed in LaForme, supra.

26 [2010] O.J. No 1622, 100 O.R. (3d) 1, 318 D.L.R. (4th) 716 (C.A.)

27 I would like to acknowledge with gratitude the excellent analysis of the pros and cons of recording medical examinations generally as found in two position papers recently prepared to assist the OTLA Board in evaluating this question. The first was prepared most thoroughly by Andrew Murray and Maia Bent, while the second paper was authored by myself and the talented and persuasive Wendy Moore-Johns.

28 (1992), 8 O.R (3d) 591, 90 D.L.R. (4th) 564 (0.C.A.)

29 (2003) CANLII 14047 (0.S.C.)

30 U.S. Security Insurance Co. v. Cimino, [200-1 FL-QL 1310 (Supreme Court of Florida).

31 (2006) CanLII 254117 (Ont. S.C.)

32(2009) CanLII 597 (0.S.C.)

33 See, for example, the unreported decision of Sproat, J. of McNorton v. Schuett (October 2, 2006) where the Judge concluded, "I read his comment... As indicating that he would somehow provide the court with a different opinion if he was being videotaped than if he was not being videotaped. This causes me some concern... I am sufficiently concerned.., that if Dr. Reznek is the person who's going to conduct the examination, then I think it should be videotaped." (para 9 and 11); See also, Griggs v. Young, Court file 42793 at London, where Justice Templeton reviewed the letter and concluded, "Dr Reznek's words speak for themselves unless and until withdrawn or amended formally... Dr. Reznek appears to be concerned about the process of litigation and the impact of his opinion upon one party or the other. Concerns of this ilk as expressed by Dr. Reznek do not enhance any degree of comfort with respect to the objectivity of this particular assessment... My comments above underlined an overriding concern which may negatively impact the fairness and effectiveness of the trial of both parties.

34 Supra, note 24

35 (2010) CanLII 2928, (SO)

36 [2010] O.J. No. 3730 (SC)