BELLEVILLE COURT FILE NO.: 0285/99
DATE: 20031112
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
B E T W E E N:
EFTERPI WILLITS and MARIANPHI ROMANIDIS
George Bonn, for the plaintiffs
plaintiffs (respondents)
- and -
JOHN D. JOHNSTON, CATHERINE JOHNSTON, NICOLE ELSE WILSON, NORMAN SOULARD and THE HALIFAX INSURANCE COMPANY
Michael J. Huclack, for the defendants John D. Johnston and Catherine Johnston
defendants (applicants)
HEARD: October 8, 2003
BELCH J.
On Leave to Appeal from the April 3, 2003 Decision of Mr. Justice Michael Quigley of the Superior Court of Justice (Ontario) sitting in Belleville Motions Court
[1] The motions judge ordered the plaintiffs may video-record a psychiatric examination that the defence’s medical doctor proposes to conduct of Efterpi Willits (“plaintiff”).
[2] The defendants’ doctor has stated he will not allow the plaintiff to take notes nor video-record the examination.
[3] The motions judge decided to allow a video-recording when the doctor chosen by the defence refused to allow the plaintiff either to video-record or take notes during the examination. The motions judge’s reasons were as follows:
There is substantial and compelling evidence before this court that the refusal by the doctor to permit a video-audio recording is a result of a preference and not a requirement to conduct a proper medical examination and, as such, is not necessary to protect the integrity of the medical examination;
The motions judge was satisfied that a video recording would not adversely impact or impair the doctor’s ability to conduct the medical examination;
The overwhelming medical opinion filed in this motion supports the efficacy and usefulness of a video-recording of the psychiatric examination and the judge was concerned the plaintiff was restricted from recording while the doctor had his notes, placing the plaintiff at great disadvantage;
The issue is one of fairness of such procedure;
The preponderance of medical evidence persuaded him that he ought to exercise his discretion in favour of permitting the use of video-recording;
The refusal by the doctor to conduct this medical examination in the presence of a video-recording was unreasonable; and
The motions judge was satisfied that the defendants would have no difficulty in retaining a competent psychiatrist to undertake such a psychiatric assessment which could be video-recorded.
The motions judge then set the conditions under which the video-recording would take place.
The Law
[4] Counsel agree that the leading authority is the Ontario Court of Appeal’s decision in Bellamy v. Johnson, 1992 7491 (ON CA), [1992] O.J. No. 864.
[5] Writing for the majority, Brooke J.A., Finlayson J.A. concurring, held:
The plaintiff has no right to determine how the examination is to be conducted or whether it is to be recorded. However, the judgment of the doctor as to how the examination is to be conducted is not final, and the court has jurisdiction to set terms and conditions relating to the examination including a condition relating to the recording of the examination… In my view, the court has inherent jurisdiction to make such an order if justice requires it to ensure that the discovery provided by the section and the Rules is facilitated.
[6] Doherty J.A., writing for the minority and concurring in the decision, added:
In deciding whether to permit the tape recording of conversations which occur during a “defence medical”, the court must consider the potential impact of the recording on 1) the opposing party’s ability to learn the case it has to meet by obtaining an effective medical evaluation; 2) the likelihood of achieving a reasonable pre-trial settlement; and 3) the fairness and effectiveness of the trial… The tape recording of conversations during a medical examination should not be allowed if that recording would detract from the examiner’s ability to provide the information referred to in Rule 36.06… If the recording would not interfere with the conducting of an effective medical examination, the court should go on to consider whether the recording would promote pre-trial settlement and enhance the fairness and effectiveness of the trial process… Each application to permit tape recording during the examination will depend upon its own facts. If the moving party demonstrates the potential for a bona fide concern as to the reliability of the doctor’s or plaintiff’s account of any statements made during the examination, and if the moving party proposes a method and terms of recording the examination which would provide both parties with a full and accurate record of those statements in a timely fashion, then an order permitting the recording would be appropriate.
[7] The majority also addressed the question of a disparity between the memories of the plaintiff and the doctor. The majority did not say that potential for a bona fide concern as to the reliability of the doctor’s or plaintiff’s account was a reason to permit recording. Rather, Mr. Justice Brooke, writing for the majority, described it this way:
I think the Rules proceed on the basis that there may be some disparity between the memory of the doctor and the memory of the plaintiff from time to time. The system has worked well in this regard, as is evident from the absence of any change in the recent revision of the Rules of Practice. There is no suggestion on the record before us that any injustice has occurred. To make an order in the circumstances of these appeals is almost to write an addendum to the Rules.
[8] The defence requests leave to appeal to the Divisional Court pursuant to Rule 62.02(4) of the Rules of Practice (the “Rules”), citing both grounds; firstly, under Rule 62.02(4)(a):
There is a conflicting decision of another judge or a court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted;
[9] One of the cases cited under the commentary on Rule 62.02(4)(a) in Ontario Superior Court Practice (2003/2004), Killeen/Morton/James is that of Nantais et al. v. Telectronics Proprietary (Canada) Ltd. et al, 129 D.L.R. 4th at page 110. This is a decision of Zuber J. of the Ontario Court (General Division). Justice Zuber writes,
In my respectful view, Rule 62.02(4)(a) does not apply to this kind of conflict, i.e., conflict between a single judge and that of an appellate court. Differences between an appellate court and a single judge should be addressed under the heading of “good reason to doubt”, 62.02(4)(b).
Nantais, supra, was appealed to the Court of Appeal. That court dismissed the appeal.
[10] On the authority of Nantais, supra, the court is satisfied the defendants’ claim for leave pursuant to Rule 62.02(4)(a) must be dismissed.
[11] Secondly, under Rule 62.02(4)(b), if:
There appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
[12] Whether or not I find good reason to doubt the correctness of the decision, the defence must still satisfy the second part of the test in 62.02(4)(b), that the proposed appeal is “a matter of such importance” that a panel of Divisional Court judges should hear an appeal.
[13] In the case of Greslik v. The Ontario Legal Aid Plan (1988), 65 O.R. (2d) page 110, a full panel of the Divisional Court of Ontario had this to say about “matters of such importance”.
A judge hearing a motion for leave to appeal must have good reason to doubt the correctness of the decision. He must also be satisfied that the matters involved are of “such importance” that in his opinion leave should be granted. We wish to draw to the attention of the members of this court and the profession at large that those words refer to matters of general importance, not matters of particular importance relevant only to the litigants. General importance relates to matters of public importance and matters relevant to the development of the law and the administration of justice.
[14] Given the position taken by this defendant’s doctor, that he will not conduct an examination that is video-recorded nor will he allow the taking of notes by the plaintiff, and given the motions judge has ordered that the conference be video-recorded, it is obvious that this decision is of particular importance to these litigants on the particular facts of this case, but is not I find a matter of general importance.
[15] Furthermore, the Court of Appeal in Bellamy, supra, has already established the legal principles in this area of the law. Even a decision from a panel of the Divisional Court, favourable to the defence, would not settle matters of general importance which is the standard required by Rule 62.02(4)(b) before allowing the appeal to go forward.
[16] Accordingly, application for leave under Rule 62.02(4)(b) is also dismissed.
[17] If counsel wish to have the court fix costs in this matter, they are entitled to make written representations limited to five pages each, the representations to be received by the court on or before November 30, 2003.
MR. JUSTICE DOUGLAS BELCH
Released: November 12, 2003