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.
[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.