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:
From time to time BC Courts struggle with the issue of whether evidence obtained through secret tape recording is admissible in a civil trial. Reasons for judgement were published yesterday by the BC Supreme Court, Vancouver Registry, addressing this topic.
In yesterday’s case (Lam v. Chiu) the Plaintiff sued the Defendant for damages based on unjust enrichment. Prior to trial the Plaintiff had a conversation with the Defendant that he secretly recorded. In the course of the discussion the Defendant arguably acknowledged the alleged debt.
The Plaintiff sought to introduce the secret recording at trial. The Defendant opposed arguing secretly recorded evidence is too prejudicial to be admitted at trial. After thoroughly canvassing several authorities addressing this area of the law Madam Justice Gray found the evidence should be admitted. In doing so the Court provided the following reasons:
So I am going to summarize the law I have referred to by saying that there is a discretion in the court to exclude evidence where the prejudicial effect outweighs the probative value. There are cases where the court has commented on the practice of recording household conversations between family members and described that as odious. The court has also referred to illegal tape-recording, that is, tape-recordings when no party to the conversation had consented to it being recorded.
The case before me is not a family case. It is not a case where custody is in issue and it is not a case where the recording took place in the household of a family. The recording, in fact, took place primarily on the street outside Ms. Chiu’s workplace. It is not a case where there is an ongoing relationship of trust between parents.
This is a situation where the relationship between Mr. Lam and Ms. Chiu has broken down, and there is no need for them to have an ongoing relationship except to resolve the lawsuit before me. It is not a case of a large volume of material. It is a case of one recording. It is not a case where the recording is being put forward to show a general practice of how someone interacts with their children as in the Seddon case. It is a case where there is an allegation about a narrow point, that is, discussion about the existence of a loan.
I will summarize the factors in this case as follows. First, with respect to probative value, I will say that I have to refer to it for the purposes of considering admissibility and, at this stage, I am not weighing the evidence or making any comment about what weight, if any, should be given to the evidence. In my view, there may be some probative value to the tape-recording. There is some concern about the statement by Ms. Chiu, that, “But I tell you, you want to have the $100,000. No way because you treat me like that. That’s pay for it.” There may also be other utterances by Ms. Chiu giving rise to concern, but that is the one that is most prominent, in my view.
I also consider the probative value in contrast with what the situation would be if the recording is not admitted. Mr. Lam could testify that he met with Ms. Chiu, demanded the payment of the loan, that she did not deny that it was owing, and she said she had no intention of repaying it. That summary might well be accurate, but it would not give the full flavour of the conversation which is available from considering the recording and the transcript. So there is some probative value to having the full conversation reported as accurately as it can be.
In terms of prejudice, there clearly is unfairness when one party knows that a conversation is being tape-recorded and the other party does not. That is clear on the evidence and can be taken into account on considering what, if any, weight the evidence ought to be given. Mr. McMillan argued that the context was prejudicial. However, Ms. Chiu can supply any more evidence she chooses about the context of the discussion including any other background and any other concerns about the language.
The matter which gave me the greatest concern was the question of the impact on the administration of justice of permitting the admission into evidence of a surreptitious recording. I am not sure that I can characterize this surreptitious recording as odious. That was a term used by Mr. Justice Thackray and embraced by other judges, but when they were referring to recordings in a home with an ongoing parental relationship and, as I have said, that does not apply here. Whether it is odious or not, the recording was certainly unfair. It is not criminal because Mr. Lam knew the recording was being made. As I have said, the recording was staged and therefore unfair, but that is apparent from the recording.
This is a not a clear case. In my view, there is some probative value to admitting the full recording, and the concerns about prejudice are not sufficiently significant that the recording should be excluded from evidence, primarily because any concerns about them are clear on the recording itself.
So my ruling on the voir dire is that the recording is admissible.
Further to my previous post discussing the topic of taping independent medical exams, reasons for judgement were released today demonstrating that BC Courts are not very receptive to such evidence if secretly obtained.
In the 2006 case of Wong v. Wong the BC Court of Appeal made it clear that permission for a Plaintiff to record a defence medical exam will rarely be granted. Sometimes Plaintiff’s have recorded such exams without seeking the court’s permission first. While the secret audio recording of an independent medical exam by a participant is not necessarily a criminal offence in Canada, it is frowned upon. One remedy a Court can exercise when presented with such evidence is to simply exclude it from trial. Today’s case used exactly this remedy.
In today’s case (Anderson v. Dwyer) the Plaintiff was injured in a 2004 rear end crash. ICBC, on behalf of the Defendant, admitted fault for the accident but disputed the extent of the Plaintiff’s injuries. In the course of the lawsuit the Plaintiff attended a medical exam with Dr. Locht, an orthopaedic surgeon selected by ICBC. The Plaintiff surreptitiously recorded this exam and then her lawyer tried to make use of this recording at trial. Mr. Justice Schultes was not receptive to this and disallowed the use of this recording for cross examination purposes. While the reasons for judgement did not have an analysis of why the Court used this remedy the following was highlighted:
 The plaintiff also admitted surreptitiously recording her examination by Dr. Locht, the orthopaedic surgeon who conducted an independent medical examination of her on behalf of the defendant. ( This came to light as a result of an objection by the defendant’s counsel during the cross-examination of Dr. Locht. The plaintiff’s counsel did not use the transcript any further after the objection and nothing in my analysis of Dr. Locht’s evidence turns on its use.)
 Her explanation for this action was that she wanted an accurate record of everything that was said during the examination and was concerned that she would not be able to recall it herself without assistance. She felt she had been treated disrespectfully by representatives of the Insurance Corporation of British Columbia during a previous meeting about this litigation and, I gather, that as a result she was suspicious of how the examination would be conducted.
 She maintained that she did not originally intend to use the recording in the litigation but that a friend had typed it up for her shortly before the trial so that she could refresh her memory and at that point she found discrepancies between the transcript and Dr. Locht’s report. She intended it to be used during cross-examination only if “the truth wasn’t coming out” in his evidence…
 It was suggested to Dr. Locht that his report presented some of the plaintiff’s symptoms in a misleading way. For example, he described her as having “no sleep disorder”, although she told him that her neck pain woke her several times throughout the night. His explanation was that because she was still getting six hours of sleep per night, in total, he did not consider that she had a sleep disorder. Similarly, he described the plaintiff as being “physically capable” of continuing all work, household, and recreational activities that she could do before the accident, despite her descriptions of experiencing severe pain (and in one case nausea) after engaging in them. He explained that his determination that a person is physically able to perform an activity does not depend on whether she in fact avoids that activity because it causes her pain…
 With respect to the plaintiff’s general credibility, I did not find her recording of the examination by Dr. Locht, her failure to disclose potentially relevant documents, or her “hands on” involvement in this litigation to be as significant as the defendant suggested. However improper surreptitious recording of medical interviews may be, it appeared to me that this recording was a reflection of the plaintiff’s suspicious and hostile view of ICBC and of her desire to protect herself from the unfair treatment that she expected to receive from its representative, rather than of any desire to manipulate the evidence.
Given the very important role expert witnesses play in injury litigation it is fair to debate whether tape recordings should routinely be used to add greater objectivity to the IME process. Unless and until this comes about our Court’s will continue to struggle with the use this evidence will be put to when parties choose to obtain evidence through surreptitious recording.
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When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.
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