Redman v. Sunnybrook School Limited, 2013 HRTO 1566

Human Rights Tribunal of Ontario

B E T W E E N:

Lindsay Redman

Applicant

-and-

Sunnybrook School Limited and Irene Davy

Respondents

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: September 18, 2013

Citation: 2013 HRTO 1566

Indexed as: Redman v. Sunnybrook School Limited

APPEARANCES

Lindsay Redman, Applicant

Carolyn Johnston, Counsel

Sunnybrook School Limited and Irene Davy, Respondents

D. Alan Whyte, Counsel

Introduction

1This Application is scheduled for a hearing on September 26 and 27, 2013. On September 16, 2013, the Tribunal held a case management conference call with legal counsel to the parties.

2One of the issues on the case management conference call was the production of the clinical notes of Dr. Thornton, a psychiatrist who treated the applicant from October 11, 2011 until January 8, 2013. The applicant has already produced six clinical notes of Dr. Thornton, as well as the referral to Dr. Thornton from the applicant’s family doctor. The applicant objects to producing eight clinical notes of Dr. Thornton because she asserts the notes are not relevant or are privileged. The applicant relies on the Supreme Court of Canada’s decision in A.M. v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157, to support her claim of privilege.

3On the case management conference call, the parties agreed that the applicant would file the eight contested clinical notes with the Tribunal with her proposed redactions on those notes. The notes of November 4, 2011, November 9, 2011, and March 26, 2012 did not contain redactions. The remaining notes contain redactions.

4The first issue to determine is whether the clinical notes of Dr. Thornton are arguably relevant to the proceeding. In order to establish “arguable relevance”, a party must show there is a nexus between the sought-after material and the subject-matter of the Application.

5In the Application, the applicant claims that as a result of the alleged discrimination and harassment during her employment, she experienced acute stress and anxiety requiring medical treatment. The psychiatric treatment provided by Dr. Thornton to the applicant during her employment and after her termination is arguably relevant to this claim. This includes the eight contested clinical notes.

6Documents meeting the “arguable relevance” threshold may not be ordered disclosed or may be subjected to limited disclosure if there are extenuating circumstances, such as privilege claims or privacy concerns that need protection. In Lampi v. Princess House Products Inc., 2008 HRTO 1 at para. 10, the Tribunal noted that:

[d]ocuments which are arguably relevant may nevertheless not be ordered disclosed if they are privileged, the probative value is outweighed by potential prejudice to the party producing them, or if the timing of the request risks derailing a just and expeditious hearing.

7The Supreme Court of Canada in Ryan held that records may be protected by common law privilege where four conditions are met: one, the communication must originate in a confidence; two, the confidence must be essential to the relationship in which the communication arises; three, the relationship must be one which should be “sedulously fostered” in the public good; and four, the interests served by protecting the communications from disclosure outweigh the interests in getting at the truth and disposing correctly of the litigation. The court held the first three conditions were met with psychiatric records between a psychiatrist and a sexual assault complainant.

8In my view, the first three conditions are also met with psychiatric records between a psychiatrist and a human rights complainant. The communications are confidential, their confidence is essential to the psychiatrist/patient relationship and the relationship itself and the treatment it makes possible are of public importance. The issue in this case is the balancing between protecting the applicant’s privacy interests and the respondent’s interests at getting at the truth in the hearing process.

9The balancing of competing interests is not an all-or-nothing exercise. It may well be that disclosure of a limited number of documents with the non-essential material edited out may ensure the highest degree of confidentiality and the least damage to the protected psychiatrist-patient relationship, while guarding against the injustice of non-disclosure.

10I have reviewed the eight contested clinical notes. The redactions suggested by counsel for the applicant are appropriate. All of the redactions concern the litigation before the Tribunal. In my view, the applicant’s description of the litigation process to her psychiatrist is not relevant to the issues in this case. As such, the redacted portions of the clinical notes do not have to be produced.

11The unredacted clinical notes should be produced to the respondents because they are arguably relevant to the applicant’s psychiatric treatment during her employment and after the termination of her employment. In order to assess the applicant’s claim that she experienced acute stress and anxiety requiring medical treatment because of the alleged discrimination and harassment that she experienced, the respondents are entitled to know the treatment she received. By redacting the non-essential parts of the notes, an appropriate balance is struck between protecting the applicant’s privacy and the respondent’s right to disclosure.

ORDER

12The applicant must product the following documents to the respondents:

a. The unredacted notes of November 4, 2011, November 9, 2011, and March 26, 2011;

b. The redacted notes of April 18, 2012, June 26, 2012, October 17, 2012, December 11, 2012, and January 8, 2013.