*Since the writing of this blog, motion has been granted and the decision has not been overturned.
By now, most lawyers know that a plaintiff is not permitted to record a defence medical examination without leave of the Court, which is granted only when the plaintiff is able to demonstrate a bona fide concern as to the reliability of the examiner’s or the plaintiff’s account of any statements made during the examination (see the Court of Appeal decision in Adams v. Cook).
But what happens when a plaintiff takes it upon himself to secretly record a defence medical examination, and then seeks to rely on the recording to undermine the expert’s report?
The December 28, 2017 decision of Justice Paul Sweeny in Cruz v. Saccucci (2017 ONSC 7737 (CanLII)) deals with just this situation. The Plaintiff surreptitiously recorded a defence medical examination (in fact, he apparently recorded several). He then alleged that his recording conflicted with the contents of one of the expert’s reports. The Defendant brought a motion for a further defence medical examination with a new expert, on the grounds that the recording was improper, and undermined the defence medical process.
In granting the Defendant’s motion and ordering the Plaintiff to attend a new defence medical examination, Justice Sweeny found that it was unfair to the Defendant to have her defence medical expert potentially compromised through the Plaintiff’s improper conduct. Justice Sweeny found that a recording may not constitute a complete record, since much of the communication during a physical examination is non-verbal, and that the expert may have conducted his examination in a different way had he known it was being recorded, and that the expert had been deprived of the opportunity to ensure that his words and conduct were being accurately recorded.
This case upholds the decades-long move towards full transparency in the litigation process and the disallowance of any conduct which might amount to “trial by ambush”. Although not specifically addressed by Justice Sweeny, it is also worth considering that to have allowed such a surreptitious recording would have granted the Plaintiff an unfair advantage over the Defendant, since, presumably, the Plaintiff did not record his own experts’ examinations.