“Unlawful” Surreptitious Recording of Defense Medical Appointments Not Admissible At Trial

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, holding that a Plaintiff’s surreptitious recording of defence medical exams are not admissible at trial.

In today’s case (Cook v. Kang) the Plaintiff was injured in a collision and sued for damages.  In the course of the lawsuit the defendant obtained a court order that the Plaintiff be assessed by defence selected physician.  The Plaintiff also consented to see a second defence physician on similar terms as the court ordered appointment.

The Plaintiff surreptitiously recorded both appointments.  This came to light during trial and the existence of the recordings was not disclosed to the defence ahead of time.  The Court ruled that the recordings were not admissible on two grounds, first because they were not listed in compliance with the rules, second that recordings of court ordered medical appointments are “unlawful” without an express term permitting this.

In excluding the evidence Mr. Justice Riley provided the following reasons:

[25]       I accept that there is a line to be drawn. On one side of the line, I would place documents which could be used solely to challenge credibility (which may not be caught by Rule 7-1(1), or alternatively may be subject to privilege as part of the solicitor’s brief until the expert says something inconsistent with them) as discussed in Beazley. On the other side of the line, I would place documents which could be used for broader purposes in an effort to prove or disprove a fact in issue as discussed in Tran. In this case, I have no difficulty concluding that the surreptitious audio recordings of IMEs attended by the plaintiff fall into the latter category. The audio recordings are not extraneous materials the sole utility of which would be for cross-examination of the defence experts on collateral matters. Rather, they are, to use Goepel J.’s language in Beazley, “related to the matter in question”.

[26]       I therefore conclude that the plaintiff failed to properly list the audio recordings as required under Rule 7-1. …

[67]       I would apply that reasoning to the plaintiff’s surreptitious recording of the Hirsch IME. I would apply the same reasoning to the plaintiff’s surreptitious recording of the O’Shaughnessy IME, which did not take place under the Rules but nonetheless took place on the implicit agreement of counsel that it would proceed on the same terms as the Hirsch IME. I conclude that both recordings, the Hirsch recording and the O’Shaughnessy recording, were “obtained unlawfully”, in a manner that was contrary to the Rules.

[68]       Moving on to the second question, as to whether the recordings should be ruled inadmissible, the approach taken in Bhimji was to characterize “unlawfully obtained” recordings as “prima facie inadmissible”. To proceed otherwise would allow the plaintiff to do surreptitiously that which he did not seek leave to do directly.

[69]       In Bhimji, the court suggested that it might be necessary to hold a voir dire to determine whether it would be necessary to admit a particular recording, “in the interest of justice”. In the case at bar, a voir dire was held at the conclusion of the plaintiff’s case. The court thus has the benefit of the plaintiff’s testimony, giving his account of what happened at the Hirsch and O’Shaughnessy IMEs. Having been shown transcripts of the audio recorded conversations, I am not satisfied that they contained any evidence essential to the plaintiff’s case, that he could not get from some other source. Even without the recordings, plaintiff’s counsel will still have the opportunity to cross-examine Dr. Hirsch and Dr. O’Shaughnessy, armed with Mr. Cook’s version of what happened at the IMEs, and also with the benefit of the expert reports and clinical notes of the witnesses. I have not been given any basis for a concern that denying the plaintiff use of the recordings at trial would frustrate or undermine the truth seeking process, for example by allowing potentially false testimony to go unchecked, or by denying the plaintiff the ability to adduce evidence on a factual point that is potentially material to the disposition of the case.

[70]       My conclusion is that (i) the surreptitious audio recordings and resulting transcripts are prima facie inadmissible because they were obtained unlawfully in the sense that they were obtained in a manner that was contrary to the Rules, and (ii) it would not be in the interests of justice to admit them.