More on the Prohibition of Recording Court Ordered Medical Exams


Reasons for judgement were published this week demonstrating that while the BC Supreme Court has discretion to permit a Plaintiff to tape record a Court-ordered medical exam, this discretion is rarely exercised.
In this week’s case (Colby v. Stopforth) the Plaintiff and her litigation guardian were ordered to attend a series of medical exams.  The Plaintiff sought permission to tape record these.  Madam Justice Dardi refused to allow this and in doing so provided the following comments:

[18] However, that is not the end of the analysis. I must next consider whether in the unique circumstances of this case the plaintiff has nonetheless adduced cogent evidence that the use of an audiotape would advance the interests of justice.

[19] The plaintiff forcefully argues that the audio recordings are required to protect Mr. Rogers. The plaintiff’s overarching concern is the potential for an evidentiary conflict between Mr. Rogers and an examiner, particularly given that Mr. Rogers is a key witness whose credibility will be a central issue at trial. Mr. Rogers also asserts that he requires this procedural safeguard because of his status as Ms. Colby’s committee—as a fiduciary he is required to act in her best interests.

[20] The court in Wong observed that a medical examination, although part of the discovery process, is quite different in nature from statements made to an independent medical examiner and cannot be equated with the statements taken under oath on an examination for discovery: Wong at paras. 27-29.

[21] As I mentioned in my earlier ruling, I am not persuaded that the potential for an evidentiary conflict between Mr. Rogers and the examiners is, in itself, a cogent reason for ordering an audio recording. Plaintiffs routinely answer questions at independent medical examinations, as they are required to do under the Rules, when their credibility is at issue.

[22] Nor upon careful consideration am I persuaded on the evidence that Mr. Rogers’ status as a committee, in itself, is a sufficiently compelling or cogent reason to warrant the use of an audio recording. To permit the use of audio recording here would be to place Mr. Rogers in a preferred or advantageous position to that of a plaintiff who attends an independent medical examination on his or her on behalf. There may be cases where it is appropriate that a litigation guardian or committee should be permitted the opportunity to have the independent medical examination audio recorded, but on the evidence adduced this is not one of them.

[23] In summary, the evidence in this case falls short of establishing that the use of an audiotape recording would advance the interests of justice. Based on the reasoning articulated by the Court of Appeal in Wong, I cannot conclude on any principled basis that the plaintiff has met the onus in the circumstances of this case for showing that the use of an audiotape recording at the independent medical examinations will advance the interests of justice. I therefore decline to make any orders in this regard.

For more on this topic you can click here to access my archived posts discussing recording what transpires at independent medical exams.

bc injury law, Colby v. Stopforth, Madam Justice Dardi, Recording independent medical exams, Rule 7, Rule 7-6, Rule 7-6(1)

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ERIK
MAGRAKEN

Personal Injury Lawyer

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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