The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.
The author of this blog, David T.S. Fraser, is a Canadian privacy lawyer who practices with the firm of McInnes Cooper. He is the author of the Physicians' Privacy Manual. He has a national and international practice advising corporations and individuals on matters related to Canadian privacy laws.
For full contact information and a brief bio, please see David's profile.
The views expressed herein are solely the author's and should not be attributed to his employer or clients. Any postings on legal issues are provided as a public service, and do not constitute solicitation or provision of legal advice. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein or linked to. Nothing herein should be used as a substitute for the advice of competent counsel.
This web site is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and David T.S. Fraser. If you are seeking specific advice related to Canadian privacy law or PIPEDA, contact the author, David T.S. Fraser.
Friday, June 17, 2005
Thanks to a colleague in Newfoundland, I've obtained a copy of the decision in O'Dea v. Lucas, which I referred to yesterday (PIPEDA and Canadian Privacy Law: Insurance access trumps privacy: court). It has some interesting things to say about the right of litigants to relevant medical information in face of requests to limit access on the basis of privacy. If the information may be relevant to the resolution of the disputes between the parties, the privacy rights of the plaintiff must give way in the interests of justice.
IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR TRIAL DIVISION
CITATION: O’Dea v. Lucas et al, 2005 NLTD 98 Filing Date: 2005 06 09 Docket: 2003 01T 4224
BETWEEN: ROSEANNE O’DEA PLAINTIFF AND: ERNEST LUCAS FIRST DEFENDANT AND: MICHAEL STAPLETON SECOND DEFENDANT
Place of Hearing: St. John’s, Newfoundland and Labrador
Date of Hearing: January 27, 2005
Edward J. Shortall, Q.C. for the Plaintiff Rodney J. Zdebiak for the First and Second DefendantsAuthorities Cited: Cases Considered: Furlano et al v. Calarco (1987), 60 O.R. (2d) 451,  O.J. No. 744; Raymond Frenette et al v. Metropolitan Life Insurance Co., 1992 CanLII 85 (S.C.C.); A.Y. v. Gellately (2001), 198 Nfld. & P.E.I.R. 147; Micheli v. Sheppard,  O.J. No. 1609 (Ontario Court of Justice - General Division). Rules Considered: 32.02 and 38.01.(1) of the Rules of the Supreme Court, 1986
REASONS FOR JUDGMENT
 This matter comes before the Court by way of an interlocutory application on behalf of the plaintiff who suffered a soft tissue neck injury in a motor vehicle accident for which she claims the defendants are liable. In the statement of claim issued in this matter the only injury alleged by the plaintiff was a soft tissue injury to her neck, and she claims that as a result of the accident, and her injuries suffered therefrom, she has experienced pain and suffering and has undergone medical treatment for her injuries. The plaintiff has not made any claim for any cost of future care, loss of earning capacity, loss of housekeeping capacity, or any other form of pecuniary general damages. She has submitted a claim to the defendants claiming special damages, judgment interest, costs and non-pecuniary general damages only. The defendants have demanded production of the plaintiff’s family physician’s chart and her entire medicare billing history, as well as all pharmacy records for a 10 year period prior to the accident. The plaintiff takes the position that only conditions, treatments and medications relating to her neck would be relevant in the action and has agreed to the production of family physician’s records, MCP records and pharmacy records relating to the neck injury only and any other neck injuries whether before or after the accident in question, which injuries may be disclosed by such records. The plaintiff’s stated purpose is a desire to preserve her privacy with respect to conditions or treatments which she claims are not relevant to the action. She has not disclosed, even in the most summary way, what these might be. She therefore applies for an order, pursuant to Rules 32.02 and 38.01 of the Rules of the Supreme Court, 1986 that the discovery of medical records, including the family physician’s chart, MCP records and pharmacy records be limited to those relating to her neck.
 Rule 32.02 deals with discovery and inspection of documents and it provides:“32.02. The Court may at any time
(a) order any party to file and serve on any opposing party to a proceeding a list of documents in Form 32.01A, as provided by rule 32.01;
(b) order any party to make discovery, limited to certain documents or classes of documents only, or of documents related to the matters specified in the order;
(c) where it appears that any issue or question in the proceeding should be determined before the discovery of all or any of the documents is made, order that the issue or question be determined; or
(d) where satisfied that discovery of all or any of the documents is not necessary at that time or later, dismiss or adjourn the application; or
(e) make such other order as is just.”
 Rule 38.01.(1) provides:“38.01.(1) The Court may, on the application of any party or on its own motion, at any time prior to a trial or hearing,
(a) determine any relevant question or issue of law or fact, or both;
(b) determine any question as to the admissibility of any evidence;
(c) order discovery or inspection to be delayed until the determination of any question or issue;
(d) give directions as to the procedure to govern the future course of any proceeding, which directions shall govern the proceeding notwithstanding the provision of any rule to the contrary;
(e) where the pleadings do not sufficiently define the issues of fact, direct the parties to define the issues or itself settle the issues to be tried, and give directions for the trial or hearing thereof; or
(f) order different questions or issues to be tried by different modes and at different places or times. “
 Counsel for the plaintiff wishes to limit both document discovery and oral discovery in such manner that discovery is limited both in time frame and as to the nature of physical or other ailments suffered by the plaintiff. The plaintiff cites in favour of such restrictions a decision of the Ontario High Court of Justice in Furlano et al v. Calarco (1987), 60 O.R. (2d) 451,  O.J. No. 744. In this case on discovery in a personal injury accident, the plaintiff gave evidence that prior to the accident she had suffered from depression and that she had injured her neck in an earlier accident. The defendant moved for an order requiring the plaintiff to produce medical records from the date of the prior accident onwards. The master directed the plaintiff to obtain a report or clinical notes relating to her condition of depression and to any prior neck injury only. The defendant appealed, seeking to set aside the limitation on the master’s order. Potts, J., after review of various cases, stated:“I would conclude by noting that the balancing of a plaintiff’s interest in the confidentiality of medical records (and indeed, the interest of all patients whether currently involved in litigation or not) and a defendant’s interest in full disclosure of relevant materials is a delicate process. I would not agree with sweeping statements to the effect that once personal injuries are alleged in a lawsuit, a plaintiff’s entire medical history becomes a matter in issue. Criteria must be found by which to assess what part of a medical history is relevant and what is not. Because this case alleges broad physical and psychiatric injuries arising out of the accident, and there is evidence of both in the plaintiff’s recent pre-accident medical history, the defendant’s request for a review of the plaintiff’s clinical record from 1981 onward is not unreasonable. I am inclined however to limit this review to the medical conditions identified in the statement of claim or at the examination for discovery.”
 Rule 32.01(1) requires parties to provide a list of documents in a prescribed form “... of the documents of which the party has knowledge at that time relating to every matter in question in the proceeding ...”. In Raymond Frenette et al v. Metropolitan Life Insurance Company, 1992 CanLII 85 (S.C.C.), the Supreme Court of Canada considered issues arising concerning the production of documents under the Quebec Code of Civil Procedure. This Article 402 of the Code required that if, after a defence was filed, it appeared from the record that a document “relating to the issues between the parties” was in the possession of a third party, the third party may upon summons authorized by the Court be ordered to give communication of it to the parties unless he shows cause why he should not do so.
 The bolded sections of our Rule 32.01(1) and s. 402 of the Quebec Code of Civil Procedure are in my view identical in effect in that the document must “relate to” the “issues between the parties” (Quebec) or “every matter in question in the proceeding” (Newfoundland). In the Frenette case the appellant insurer had issued a policy of life insurance on the respondent’s son. Under the policy there was a basic indemnity plus a rider which provided a supplemental indemnity for accident death. Death resulting from suicide was expressly excluded as a risk. The deceased’s body was found in a river. The autopsy revealed that the probable cause of death was asphyxiation as a result of drowning but, given the advanced state of decomposition of the insured’s body, no chemical tests were performed on the insured’s tissues to detect traces of alcohol or toxins. The insurer paid the basic indemnity but refused to pay the supplemental indemnity for accident death, claiming the drowning was not accident but a suicide. Those beliefs were based on information gathered from the medical records the insurer had been able to obtain during its investigation. These records indicated that two days before his disappearance, the insured had been rushed to the emergency ward of a hospital and questioned for a possible drug overdose. Despite a 1983 authorization releasing all medical information, the hospital refused to release medical records. The Court decided that the waiver determined the issue and that the requisite information ought to be released. The Court held that even if there had been no waiver to the right of confidentiality the insurer was still entitled under Article 402 of the Code of Civil Procedure to have access to the insured’s complete medical records. The Supreme Court of Canada held that a Court must exercise its discretion to grant access to medical records according to the degree of relevance and importance to the information sought relevant to the issue between the parties. In exercising that discretion, a Court must weigh the diverse interest in conflict – the interest of justice against the right of privacy and confidentiality of an individual. In the Frenette case, the cause of the insured’s death was central to the litigation. Access to information sought became inextricably linked to the ability to prepare a full defence. Moreover, the records provide the best evidence or pertain most directly to the cause of the insured’s death. As for the scope of access, the complete records of the insured held by the hospital are relevant and should be given to the insured. Access to the insured’s complete medical records would not constitute an unjustified intrusion into his private life. The records covered only a brief period of the insured’s life. The nature of the claim put into question a whole series of events which may have led to the questionable cause of death and render these medical records crucial to the issues being litigated. In these circumstances, access to the records did not constitute a fishing expedition.
 Plaintiff’s counsel referred also to comments by McLachlin, J. as she then was, referred to by Barry, J. in this Court in the case of A.Y. v. Gellately (2001), 198 Nfld. & P.E.I.R. 147. In A.Y. v. Gellately Barry, J. referred to McLachlin, J. in A.N. v. Ryan,  1 S.C.R. 157. Ryan involved a case where the plaintiff alleged she had been sexually assaulted by her former psychiatrist and had sustained injuries as a result of the assault. In order to deal with her problems she had sought psychiatric treatments from another psychiatrist. At the commencement of her treatment by the second psychiatrist she had expressed concern that her communications with the second psychiatrist remain confidential. The first psychiatrist requested production of the second psychiatrist’s records and notes. At para. 9 of his decision in A.Y. v. Gellately, Barry, J. referring to the decision of McLachlin, J. in Ryan states:“At paragraph 18 of her decision, Madam Justice McLachlin noted:‘The degree of protection conferred by the privilege may be absolute or partial, depending on what is required to strike the proper balance between the interest in protecting the communication from disclosure and the interest in proper disposition of the litigation. Partial privilege may signify that only some of the documents in a given class must be produced. Documents should be considered individually or by subgroups on a “case-by-case” basis.’” (Emphasis added by Barry, J.)
 Further at para. 13 of Gellately, Barry, J. refers to the following quote from para. 38 of Ryan by McLachlin, J.:“It remains to consider the argument that by commencing the proceedings against the respondent, Dr. Ryan, the appellant has forfeited her right to confidentiality. I accept that a litigant must accept such intrusions upon her privacy as are necessary to enable the judge or jury to get to the truth and render a just verdict. But I do not accept that by claiming such damages as the law allows, a litigant grants her opponent a license to delve into private aspects of her life which need not be probed for the proper disposition of the litigation.”
 Put simplistically the plaintiff’s position in this case is that what is involved is non-pecuniary general damages for a straightforward neck injury and that the plaintiff ought to be entitled only to examine such documents or to conduct oral examinations if the documents and the examinations are confined to the “same area” and must deal with conditions which:(a) aggravate the symptomatic injury for which claim is made;
(b) deal with pre-existing non-symptomatic conditions which would not but for the accident in question, have become symptomatic – i.e., the application of “thin skull” principles; and
(c) other injuries in the same area which would have become symptomatic.
 The defendants’ counsel takes the position that disclosure should not be governed by the size of the claim. He cites the principle applicable in tort damages assessments, i.e. restitutio in integrum. He questions how his client can be expected to put the plaintiff back into the position where she was without knowing what her baseline medical assessment was prior to the accident. He contends that unless he gets enough information he cannot know the size of the problem that he has to deal with.
 Defendants’ counsel contends that while evidence with respect to the neck injury claimed is important it does not help entirely with determination of the question of quantum. Implicit in the claim for non-pecuniary general damages is a claim for loss of amenities of life. Defendants’ counsel asks how he can determine if the plaintiff has lost an amenity by reason of a neck injury if she had already lost that amenity of life due to some other pre-existing condition. Hypothetically the question could be “How can the defendant compensate the plaintiff for no longer being able to engage in a game of bowling because of the neck when she already could not engage in a game of bowling because of a leg injury?”.
 The defendant also points out that there may be other conditions at play, for example, degenerative disc disease in the lumbar or thoracic spine which may impact upon the claimed neck injury. If he is limited in his examination and discovery he claims that he can never determine if the spinal condition is general. Even when dealing with normally unrelated medical conditions, defendants’ counsel claims that the same principle applies. He postulates the question “What if the plaintiff could not bowl any more due to stomach cancer?” or “What if the life expectancy of the plaintiff was less due to some unrelated condition such as cancer?”.
 Defendants’ counsel also points out the risk of receiving false information or information being withheld from him. He claims that without full disclosure he has no way to know if the information provided to him is true or false. In addition, he points to simple fragility in the plaintiff’s memory as her personal health historian and he cannot, without full disclosure, test her memory in that regard. Defendants’ counsel contends that the injury and symptoms claimed by the plaintiff are not ones which are easily segregated. He postulates that a shoulder injury from some other causation may refer pain to the neck. If he is unable to measure her baseline condition prior to the accident he contends he is placed at a serious disadvantage.
 Additionally, defendants’ counsel submits that the plaintiff has failed to adduce any evidence to show that disclosure of medical evidence beyond the medical evidence specifically relevant to the plaintiff’s neck would result in some further physical or emotional harm and asserts that the onus should be on the plaintiff to demonstrate this situation before any consideration should be given to restricting discovery.
 I accept that information sought by the defendants might be of a highly personal or sensitive nature, the release of which might cause some anxiety on the part of the plaintiff. However I have not been provided with any medical evidence that this will in fact result. I must therefore balance the general privacy interest of the plaintiff against the interest of pursuing truth and disposing properly of the litigation, and in this regard I conclude that justice requires me to find that the plaintiff’s privacy interest must give way to the right of the defendants to access to all reasonably relevant information relating to the plaintiff’s medical condition before and since the accident.
 I am not satisfied that the injury claimed to be suffered by the plaintiff is sufficiently discrete and detached from impacts by reason of other physical conditions, that the examination of her medical records can property be confined only to her “neck” without seriously and negatively impacting upon the ability of the defendants to investigate whether pre-existing or subsequently arising conditions have caused or may cause loss of amenities of life claimed by the plaintiff to be attributable to the neck injury. In this regard the case is significantly different from that relied upon by the plaintiff in Micheli v. Sheppard,  O.J. No. 1609 (Ontario Court of Justice - General Division), where the plaintiff suffered a serious eye injury and the master dismissed the defendant’s motion for production of clinical notes and records. In Micheli the Court held that the key to disclosure was relevance to the issues raised in the matter and that while the pleadings were broad the plaintiff was asserting a claim referable only to his eye. The Court held that the master was correct in concluding that the defendant’s broad and general request for all of the plaintiff’s clinical records in these circumstances went beyond the limits of relevance. However, in our circumstances I am not satisfied that the defendant’s requests for clinical records and pharmacy records do in fact go beyond the limits of relevance, and therefore in terms of disclosure in its purest form I deny the plaintiff’s application with costs to the defendant.
 It may well be however that certain restrictions on the disclosure or the dissemination of information beyond those persons within an immediate need to know might be appropriate. These could be of the nature ordered by Barry, J. in A.Y. v. Gellately (para. 21). If this is an issue between the parties, it can be dealt with on a subsequent application.
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