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Videotaping Medical Experts (Examining You on Behalf of the Opposing Insurance Company) – Part 3

Further to our September 15, 2010 blog and our October 27, 2010 blog, we discuss the ongoing caselaw on the issue of audiotaping or videotaping a defence medical assessment arising in a personal injury lawsuit.

In Bakalenikov v. Semkiw (2010 Ontario Superior Court of Justice), the issue of videotaping or audiotaping a psychiatry defence medical assessment is discussed, with an extensive analysis of the caselaw and effect of Rule 53.03.

Master Short notes that the objectivity of the proposed defence psychiatrist is challenged in this motion.  Reference is made to two reported FSCO Arbitration decisions (being Accident Benefits arbitrations under the Financial Services Commission of Ontario), as well as a reported Ontario Superior Court of Justice decision, all of which express concerns over the objectivity and neutrality of this particular psychiatrist.

Master Short states in the decision:

[50] …. While videotaping occurs in many medical settings and its benefits are that much greater than audiotaping because it provides a visual record as well an oral record, there may be a corresponding increase in costs.   Consistent with the practice of proceeding with small, incremental changes to the rules, it is recommended that the initial step be limited to introducing audio recording.

[51] In the case before me I feel that video recording would be unduly obtrusive and not necessary. However, I agree with the proceeding proposal that the introduction of audio recording would be a prudent first step.


[66] It seems to me that the new duty of an expert to the court comes with a previously unaddressed potential issue for trial counsel. Before, the plaintiff could remind the jury that the expert was retained by the defendant. Now counsel for the defence may seek to enhance the evidence of such experts by pointing out that the expert is the Court’s expert, without any risk of bias as his or her primary duty is now to the court.

[67] Surely,  if it can be argued that such experts bear an implicit imprimatur of the court, the court has an obligation to ensure to the extent possible that the experts have understood and acted in accordance with their new, very different, responsibilities.

[68] If a judge of the court has made a finding with respect of an individual expert in the past, that is the finding of the Superior Court. How can the court abdicate any responsibility to audit the performance of such experts in light of the expressed intent of the amendments made to Rule 53?

[69] Alan Shanoff in his Law Times column (supra), commenting on the decision in Adams expressed the view:

“So why don’t we record them? “At trial and their reports, experts are allowed to express their opinions.  The opinions must be based on facts.  The facts come from a number of sources, including statements made during the defence medical.  So why would we want any process in which the facts underlying opinion could be in dispute?  Do we really want to encourage a situation where the defence expert and plaintiff argue about what was said at the examination? But isn’t this exactly what we invite when we don’t allow the defence medical to be recorded? 


[76] The Court expects and relies upon frank and unbiased opinions from its Experts. This is a major sea change which requires practical improvements to past opaque processes. How are long time plaintiffs’ and defendants’ experts to be “trusted” to change their stripes? At the initial stages skilled, licenced professionals clearly must be taken at their word that on principal they take their Form 53 Undertaking to Court seriously. They are clearly promising to bring a new, transparent and objective mind set to the drafting of their reports and to their subsequent testimony.

[77] In this case I am obliged to consider a proposed expert who has on at least 3 occasions had his opinions disregarded by the Court for bias and advocacy for the Defence. He has been criticized by a judge of this Court for delivering his evidence  as “an advocate for the party calling him as a witness.”

[78] As noted in paragraph 58 above Dr. PD in his affidavit states, “I have not in the past and would not in the future conduct an assessment while being taped. [my emphasis]

[79] The Plaintiff before me seeks to record this expert’s interview. The Defence has given no evidence that this would be impractical, intrusive or an obstacle to their chosen expert conducting his interview and examination. Rather, this Doctor has deposed that if ordered to allow a recording, he will not conduct his examination. That is of course his prerogative.

[80] On the facts before me in this motion however, I find that this expert’s objectivity needs to be demonstrated. The Court now implicitly holds out to jurors that experts testifying are the Court’s experts, independent of the plaintiff or of the defendant.

[81] At least at the outset of this new system, the Court’s positive duty encompasses the power to allow a non-intrusive form of audit of the experts paid by the those ultimately liable to fund the payment of any liability determined at the trial.

[82] On the peculiar facts before me in this matter, I am required to fashion appropriate procedural safeguards to ensure the Trial Court has proper independent and reliable evidence and reports available. I am satisfied that it is appropriate for this plaintiff to have an audio recording of the entire examination. This recording must be copied to all counsel and the examining doctor.

[83] In the future, in other actions, it would seem fair that if counsel for the plaintiff wishes  the examination arranged by the defence to be taped, then there ought to be recordings made of the corresponding  examinations, with  both recordings, being  fully circulated, forthwith, unedited and in full. Whether the expert’s interview was apt or adequate is then objectively assessable.  This may well, in some cases, assist the Defence. On the basis of my analysis in these reasons this appears to be an inherently neutral step.

[84] I believe the national trend is clearly towards allowing such recordings as a quality control “check” on the process. I can see much benefit to the parties and the court. The court and ultimately the public have a right to be confident in the independence and competence of experts reporting on matters before the court.

[85] If the Defendant’s proposed doctor is unwilling to reconsider his position, the Defence will have to select a different expert.

As another issue in this motion, the plaintiff sought to deny an orthopaedic defence medical on the basis that the plaintiff had never been seen by an orthopaedic surgeon in support of his lawsuit.

[26] In light of the new duties to the court of experts, it seems to me that the defence ought to be granted some latitude in selecting the expert they are retaining.  While the plaintiff may feel the proposed expert lacks an appropriate degree of expertise, my permitting the examination at this point does not “qualify” the expert for giving testimony at trial.  The ability to challenge the appropriateness of the expert remains available before the trial judge.  Here are the expert asserts that he has the requisite knowledge to conduct the proposed examination, and I am not prepared to refuse to accept his professional assessment on that issue at this stage of the proceedings.

Gregory Chang
Toronto Insurance Lawyer