CITATION: Cruz and Cruz v. Saccucci, 2017 ONSC 7737

COURT FILE NO.: CV-14-296

DATE: 2017-12-28

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ANTONIO JOSE CRUZ and LUCIA DE FATIMA CRUZ, Plaintiffs

A N D:

CATHERIN SACCUCCI, Defendant

BEFORE: The Honourable Mr. Justice P. R. Sweeny

COUNSEL: William C. Wolfe, for the Plaintiffs

Andrew C. McCutcheon, for the Defendant/Moving Party

HEARD: May 26, 2017

Corrected Decision: A short style of cause and neutral citation number was added for publishing purposes on December 28, 2017.

December 28, 2017: CITATION: Cruz and Cruz v. Saccucci, 2017 ONSC 7737 was added.

E N D O R S E M E N T

[1] This is a motion made by the defendant for an order, inter alia, compelling the plaintiff, Antonio Jose Cruz (“Mr Cruz”) to attend an independent medical examination with Dr. Patrick Henry, Orthopaedic Surgeon, on June 6, 2017 at 2:00 p.m. The plaintiffs oppose the order. In the alternative, if the order is granted, Mr Cruz requests he be entitled to record the examination.

[2] This is a claim for personal injuries allegedly sustained by the plaintiffs as a result of a motor vehicle accident which occurred on February 18, 2012. The plaintiffs have been examined by several doctors on behalf of their own insurers and several doctors have conducted independent medical examinations on behalf of the defendant in this action. A mediation in this matter was held on November 2, 2016. The mediation was unsuccessful. However, at the mediation, plaintiffs’ counsel disclosed that Mr. Cruz had surreptitiously recorded a number of the medical examinations. Following the mediation, a number of letters were sent by the counsel for the defendant seeking disclosure of the particulars of the recordings, copies of the recordings, and transcripts. The parties have resolved as between themselves the production issues raised in the motion record.

[3] The plaintiffs allege that the recording and the transcript produced as a result of the recording of the examination by one of the independent medical experts retained by the defendant conflicts with the contents of the report prepared by the expert. On this motion, I make no finding and express no opinion as to whether there are any discrepancies or conflict between the report and the transcripts.

[4] The defendant says that the surreptitious recording is improper. In the circumstances, the defendant requests the opportunity to have the plaintiff examined by another independent medical expert of her choosing. The defendant says that it is appropriate that leave be granted, if necessary, to bring this motion under Rule 48.04. In the circumstances leave is granted. This issue was not known to the defendant until the disclosure was made at the mediation.

[5] The plaintiffs say that the defendant chose her expert and she is stuck with the expert report together with the possibility that the expert may be cross-examined on the contents of the transcript of his examination of Mr. Cruz. The actual issue of the cross-examination should be left to the trial judge.

[6] In Bonello v. Taylor, 2010 ONSC 5723, D.M. Brown J. (as he then was) outlined the law with respect to the ordering of a second defence medical. In this case, I am satisfied that in the interests of fairness, a second defence medical examination should be ordered.

[7] The surreptitious recording of the examination was improper. The effect of this recording is the doctor would now, most likely, be subject to cross-examination on issues as to what exactly happened in the course of the examination. The evidence of the plaintiff is also relevant. Mr. Cruz may be examined or cross-examined on the transcript. If the doctor was aware of the recording, he may have conducted his examination a different way. He may have been clearer in the language used. He may have been more specific is instructions given to the plaintiff. Much of the communication that goes on is nonverbal. The doctor was denied an opportunity to ensure that his words and conduct were being accurately recorded.

[8] The defendant has now been placed in the position that the evidence of her expert may be undermined. In any event, there is an additional layer added to the testimony of the plaintiff and the doctor.

[9] The defendant’s expert is required to execute his acknowledgement of duty. He has a duty to the court. The defendant is entitled to expect that her experts will provide the court with his or her opinions relevant to the issues in this proceeding. The issues in this proceeding are the damages suffered by the plaintiffs as a result of the motor vehicle accident. It is unfair to the defendant to have her expert potentially compromised based on some improper conduct on the part of the plaintiff.

[10] In the circumstances, the trial in the matter is not scheduled until October of 2017. This motion is brought in sufficient time that no party will be caught by surprise.

[11] With respect to the issue of the surreptitious recording, the plaintiffs have sought to rely upon the dissent in Adams v. Cook, (2010) 2010 ONCA 293, 100 O.R. (3d) 1, where Lang J.A. held that a recording condition to a defence medical is generally in the interests of justice, absent any adverse impact on the examiner’s ability to conduct an effective examination. Unfortunately, for the plaintiffs, the majority of the Court of Appeal held that there is no right of the plaintiff to record defence medical examinations without leave. The mere perception by the plaintiff that there was some bias in previous examinations is not sufficient for leave to be granted. Mr. Cruz shall not be entitled to record his examination by Dr. Henry.

[12] The deadline for service of the defendant’s expert reports as set out in the timetable of Arrell J. is extended to July 31, 2017.

[13] If the parties are unable to agree on costs, submissions may be addressed to me in writing at my chambers in Hamilton. The submissions should be limited to two pages plus any bills of costs or offers to settle. The defendant has seven days and the plaintiffs have a further seven days to respond.

Sweeny J.

DATE: Dec. 28, 2017