The principles governing the video or audio taping of defence medical examinations have remained fairly consistent since the Ontario Court of Appeal’s decision in Bellamy v. Johnson (1992), 8 O.R. (3d) 591. A plaintiff must first demonstrate actual bias or a bona fide concern about the reliability of the examining doctor before the taping of a defence medical examination will be permitted.

These principles were recently revisited by the Court of Appeal in Adams v. Cook, 2010 CarswellOnt 2408. While the Court reaffirmed the Bellamy principles, it signalled that changes to those principle might be required given that “legitimate concerns” had been raised about the present role of experts in the civil litigation process.  

In Adams, the plaintiff was injured in an automobile accident and was subsequently diagnosed by her family physician with a cervical whiplash. Following this diagnosis, counsel for the defendant requested that the plaintiff be examined by a specialist in physical medicine and rehabilitation. The plaintiff consented to this request on the condition that the medical examination be audio recorded. Counsel for the defendant opposed the proposed condition and brought a motion to compel the plaintiff to attend an examination free of any conditions.  

At the hearing of the motion before Justice John Brockenshire, the plaintiff opposed the defendant’s motion and argued that there was a systemic bias amongst health care professionals who undertook defence medical examinations and filed an affidavit to illustrate examples of abuse by medical experts. Upon review of the materials, Brockenshire J. agreed that the materials evidenced serious systemic problems and this was sufficient to meet the Bellamy principles.  

Brockenshire J. ordered the taping of the plaintiff ’s medical examination without any specific evidence that there was a history of abuse or bias with the individual physician chosen to conduct the defence medical examination.  

Justice Brockenshire’s decision was appealed to the Divisional Court specifically on the ground that there was no evidence showing abuse or bias by the physician retained by the defence and, as such, the legal test established by the Court of Appeal in Bellamy had been misconstrued.