Audio recording of defence medical examinations to remain rare

Adams v. Cook, 2010 ONCA 293 is a (rare) judgment of the Court of Appeal where five judges sat.  They sat to reconsider the court's judgment in Bellamy v. Johnson (1992), 8 O.R. (3d) 591(C.A.).   Bellamy set the ground rules for an order permitting the audio recording of a defence medical. Such recording will be rare. 

The Court declined to reconsider the earlier decision.  Accordingly, audio recording of defence medical examinations will remain rare and be based on case by case factors.  The Court held:

[28]         That said, 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 a 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 Honourable 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: Report (Toronto: Ontario Ministry of the Attorney General, 2008) 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's examination.

[29]         However, in my view, the record in this case is insufficient to broaden and set new parameters for the making of orders requiring the recording of defence medical examinations, which would take into account all of the complexities and nuances that go with the conduct of such examinations.