February 27, 2022

By Brian Babcock

A court is will make an order for production for inspection of a document that is in the possession of a non-party and is not privileged, if a) the document is relevant to a material issue in the action; and b) it would be unfair to require the moving party to proceed to trial without having discovery of the document.

As we discussed in a prior article, privilege is the rule of evidence which protects certain confidential information from being disclosed in court proceedings. The most common privileges are solicitor client privilege and its cousins, litigation privilege and settlement privilege.

What about doctor-patient confidentiality? Isn’t that important too?

Yes, it is, but Canadian courts are reluctant to extend blanket or categorical privilege. When it comes to medical evidence, or the testimony of doctors, it is commonly ordered produced and admitted as evidence is a wide range of cases, most notably personal injury claims, plus certain family law, criminal law, and estates matters. The basic principle is that if someone puts their medical state – whether physical or mental – in issue, they give up any right to privilege.

As with other information not protected by a categorical privilege, claims of privilege to medical information are determined on a case by case basis. Of course, there are rules and precedents which apply, so that there is some consistency and predictability.

Although most Canadian law is adopted from Britain, we also borrow from our American neighbours. In the area of case by case privilege (or ad hoc privilege, if you permit the use of Latin), we apply the Wigmore Rules, named after John Henry Wigmore, a noted American professor and pioneering evidence textbook writer.

In his text, Wigmore examined the decisions on case by case privilege starting with ancient British cases, leading to more modern American decisions, and eventually including Canadian cases. His encyclopedic work became the leading authority in Canada as well as the United States, at least until Canadian writers ventured into the field. By that time, the Wigmore Rules were generally accepted and applied.

Wigmore extracted four rules from prior cases that say an ad hoc claim of privilege may be permitted where:

  1. the communication at issue originated in a confidence that it would not be disclosed;
  2. the element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;
  3. the relation must be one which in the opinion of the community ought to be sedulously fostered; and
  4. the interests served by protecting the communications from disclosure outweigh the interest of pursuing the truth and disposing correctly of the litigation.

How this can apply to medical records was illustrated in a case with a somewhat unusual request for production. Kinnear v. Kinnear was a will dispute, but in this case, it was not the deceased’s medical records being sought. Instead, it was the psychiatric records of the Applicant, a son of the deceased who disputed the validity of his father’s last will. The Applicant’s brother, who supported the validity of the will, raised the issue of whether the Applicant had started the law suit on time. We have explained before how the concept of “discoverability” may affect the date by which an action must be started.

In Kinnear, the Respondent hoped that his brother’s psychiatric records would demonstrate that the Applicant was aware of the issue of validity at an earlier date than the Applicant alleged, so he sought production of those records. They clearly pass the threshold of being relevant. But what about fairness and privilege?

If the documents are privileged, the court does not have to wrestle with the elusive concept of fairness. So that was looked at first.

This was an unusual enough request that the judge ruling on the request had no prior very similar case upon which to base their decision.  There was a prior Supreme Court of Canada decision, M.(A.) v Ryan, which applied the Wigmore Rules to psychiatric records in a different situation, one dealing with claims of sexual assault. In Ryan,  some but not all of the records were found not to be privileged, and the distribution and use of the records that were ordered produced was limited. The inquiry in that case focused on the fourth Wigmore Rule – whether the interests of justice required the production of the records.

In Kinnear, the first three factors strongly weighed in favour of privilege. In particular, the psychiatrist was concerned that disclosure would be bad for her patient’s mental health, and by violating her assurances of confidentiality, would harm the patient-doctor relationship.  The judge saw little risk that the claim of privilege would interfere with justice, because information from other sources was available to support the Respondent’s arguments, such as notes of the father’s lawyer, email exchanges and the Applicant’s own evidence.

Based upon this, in Kinnear, the judge ruled that privilege protected the records from production. The judge ejected any suggestion that this privilege had been waived, because there was no evidence that the Applicant was aware of the privilege, and therefore could not intend to waive it.

The different results in Ryan  and Kinnear show that the case by case approach and the Wigmore Rules gave the flexibility to respond to the issues and facts of specific situations.

The right to privacy is a fundamental value in Canadian society, but so is justice. Confidentiality and its legal cousin, privilege, act to protect privacy while serving the broader interests of justice and fairness.

However, it is important to know that:

  • not all medical records or doctor’s testimony is privileged
  • in some circumstances, the Wigmore Rules will protect the confidentiality
  • care must be taken not to waive this privilege
  • the privilege needs to be asserted in a timely and correct manner
  • you need to be alert to the possibility of privilege and act to protect it.

Sound and timely legal advice and representation can assist you in these objectives. In Thunder Bay and Northwestern Ontario, the litigation team at Weilers Law has significant experience in arguing issues of privilege, and has skills that you may require. Our experience includes estate litigation, as well as other areas of law. If you think you might need our help, please contact us to determine whether we can assist.