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Dispute Over Production of Medical Assessment Centre File, Surveillance, and Benefits File

One of the issues in Dulude v. Lawrence et al., 2022 ONSC 1034, was whether the plaintiff was entitled to obtain production of the complete file of a medical assessment centre, except for draft reports.

The defendants arranged with Soma Medical Assessments for the plaintiff to attend three defence medical assessments. The plaintiff did not have evidence of any interference or impropriety on Soma’s part in the preparation of the experts’ reports.

Justice Hackland refused the plaintiff’s request for production of Soma’s file, stating:

[5]            This request is refused for the following reasons. It is a complete fishing expedition, unsupported by any basis for suspecting any interference with the expert’s duties by Soma or anyone else. Counsel has not sought leave to seek this relief, which is required as the matter was set down for trial over two years ago at which time there is an undertaking not to bring further motions. Also, assuming the Soma files are under defence counsel’s control (which I doubt), they are subject to litigation privilege as the reports were obtained and the related administrative activities were undertaken for the purpose of litigation. One does not have to be a lawyer or part of a law firm to be entitled to claim litigation privilege. Defence counsel may or may not call defence medical evidence at trial from any of the 3 experts recruited by Soma. However, if he does so, litigation privilege is deemed to be waived and this line of inquiry may be pursued at trial, subject always to any rulings by the trial judge.

Another issue related to surveillance. The defendant had produced all of the surveillance videos and associated reports. However, the plaintiff contended the videos were edited. The plaintiff sought the unedited videos, as well as the instruction letters from counsel to the private investigator, the investigator’s logs, and the names of the people who conducted the surveillance. The plaintiff wanted to know how the investigator obtained personal information that was contained in the surveillance reports, including private information pertaining to her three children.

Justice Hackland agreed with the plaintiff’s request, indicating:

[7]            I order that the information sought by the plaintiff from the private investigator is to be obtained by defence counsel and produced (unless there is an undertaking not to call this evidence). There appears to have been a significant ongoing intrusion on the privacy of the plaintiff and her family on the part of the private investigators, which may or may not be justified, and can be a matter addressed before the trial judge. I agree that this information and documentation is prima facie subject to litigation privilege but the court has the discretion to waive the privilege in the face of competing public policy considerations, and I do so. The Court of Appeal has explained that surveillance evidence must be scrutinized carefully and not used to ambush a plaintiff unfairly and must be produced well in advance of trial, see; Iannarella v. Corbett, 2015 ONCA 110 and Nemchin v. Green, 2019 ONCA 634.

Lastly, Justice Hackland agreed with the defendants’ request for production of documents related to the plaintiff’s recent settlement with her disability benefits insurer, including the insurer’s affidavits of documents and the transcript of the insurer’s discovery. The insurer did not oppose this request. Justice Hackland stated:

The plaintiff’s disability claim against Great West Life and her current tort claim both focus on the plaintiff’s medical condition and her ability to function and earn income and related medical and psychological issues. The issues are so similar that trial fairness requires that the defendant should have access to the documentation in the disability action, most of which has already been provided.