Straka v. Humber River Regional Hospital et al. [Indexed as: Straka v. Humber River Regional Hospital]

51 O.R. (3d) 1

[2000] O.J. No. 4212

Docket No. C33398

Court of Appeal for Ontario

McMurtry C.J.O, Morden and Catzman JJ.A.

November 9, 2000

Civil procedure -- Discovery -- Action for discovery being modern equivalent of equitable bill of discovery over which Court of Chancery had jurisdiction before Judicature Act, 1881 -- Action for discovery co-existing with rules of practice -- Action for discovery may be brought by application if no facts in dispute -- Doctor denied hospital privileges at one hospital because of reference letters from doctors at another hospital -- Action for production of reference letters available but defeated by claim for privilege -- Judicature Act, 1881, S.O. 1881, c. 5.

Evidence -- Privilege -- Confidentiality -- Reference letters privileged -- Wigmore criteria for establishment of privilege satisfied -- Doctor denied hospital privileges at one hospital because of reference letters from another hospital -- Action for production of reference letters available but defeated by claim for privilege.

The appellant, Dr. S, a certified specialist in anaesthesia, applied for active staff privileges at the respondent Humber River Regional Hospital ("Humber"). He was offered a position contingent upon Humber receiving reference letters from the respondent St. Michael's Hospital ("St. Michael's"), where he had medical staff privileges. The reference letters were requested from St. Michael's on the understanding that the comments in them would be held in strict confidence. The letters were received, and Dr. S did not receive his appointment, although he was permitted to practice at Humber on a locum tenens basis. He was told that the reference letters from St. Michael's were critical of his competence or character. He asked to see the letters. After this request was denied, he commenced an application for an order for production of the letters and, in that application, he stated that he required production for the following reasons: to pursue any possible action in defamation or for interference with economic relations; to pursue full active medical staff privileges at Humber; and to evaluate whether or not to commence litigation to protect his reputation and good name. Dr. S's application was dismissed, and he appealed.

Held, the appeal should be dismissed.

The first issue was whether Dr. S had a free-standing right of action for production of the reference letters in the possession of Humber. Dr. S could not establish this right on the basis of any of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the Public Hospitals Act, R.S.O. 1990, c. P.40 or as an aspect of a fiduciary duty owed to him by Humber. However, there was a possible basis for production based on an action for discovery, which is the modern equivalent of the equitable bill of discovery over which the Court of Chancery had jurisdiction before the Judicature Act, 1881. This equitable action for discovery co-exists with the rules of practice, and it may be brought by application, if there are no material facts in dispute. It is an equitable remedy, and an exercise of discretion is involved. The circumstances in which the action for discovery lies, however, are not settled. Generally, the threshold requirements are that the person seeking discovery must have: (1) a bon a fide claim against the alleged wrongdoer; and (2) a relationship with the person from whom production is sought beyond that person being a mere witness. The person against whom production is sought must be involved in some way with the transaction. In the immediate case, Humber was involved in the transaction, but the respondents submitted that Dr. S did not have a bona fide claim against St. Michael's and that an action for discovery is confined to the situation where the applicant has evidence of a legal wrong done to him or her but lacks only the name of the wrongdoer. The authorities, however, indicated that the nature of the scope of the action was not settled and was not necessarily as narrow as submitted. In the circumstances of this case, it could not be said that Dr. S was "fishing" to find out whether he had a case. He knew that the letters damaged his opportunity to be appointed, and he wanted information so that he could take steps to clear his name through legal proceedings if this should prove necessary. He had shown sufficient bona fides to justify a consideration of his claim for discovery. The alternative of a proceeding under the Public Hospitals Act for a hospital appointment, in which proceeding Dr. S would have the right to be informed of the allegations against him, was not a practical alternative to the action for discovery. Even if he could obtain copies of the reference letters, it was likely that he could be restrained by the implied undertaking principle from using them for any purpose other than prosecuting his statutory claim. Thus, Dr. S did have a free- standing right of action for production of the reference letters subject to that right being answered by a claim for privilege.

Privilege for the reference letters was established. The privilege was based on the application of Wigmore's four conditions for establishing a privilege against the disclosure of a communication. The four conditions are: (1) the communication must originate in a confidence that it will not be disclosed; (2) this element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties; (3) the relation must be one which in the opinion of the community ought to be sedulously fostered; and (4) the injury that would inure to the relation by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of litigation. Whether the Wigmore conditions are satisfied must be determined on the facts of each particular case, and in the immediate case, the conditions in dispute were conditions (2) and (4). On the evidence, these conditions were satisfied. Regarding the second condition, on the evidence, the element of confidentiality was essential to the effective maintenance of the relation between reference-givers and hospital boards. Regarding the fourth condition, Dr. S's rights under the Public Hospitals Act were a relevant consideration to take into account in considering what weight should be given to the benefit of the correct disposal of the litigation that Dr. S contemplated. That litigation was complex and would involve the overriding of an asserted privilege. Its benefit, when weighed against the injury to the public interest sought to be protected by the privilege, was weakened by the fact that the contemplated litigation was not the only way in which Dr. S could achieve his basic purpose. The statutory procedure afforded him a straightforward route to clearing his name with the very organization that was in possession of the critical letters. In these circumstances, the injury to the peer review process, a process important to the public interest, exceeded the benefit of the correct disposal of the litigation. Accordingly, the claim for privilege was established and the appeal should be dismissed.

APPEAL from a judgment of Pitt J. (1999), 1999 15086 (ON SC), 45 O.R. (3d) 630 (S.C.J.) dismissing an application for the production of documents.

Cases referred to AXA Equity & Life Assurance plc v. National Westminster Bank plc, [1998] E.W.J. No. 487 (Eng. C.A.); Bartram v. Wagner (1907), 9 O.W.R. 448 (H.C.J.), affd (1907), 10 O.W.R. 41 (C.A.); British Steel Corp. v. Granada Television Ltd., [1981] A.C. 1096, [1981] All E.R. 452, [1980] 3 W.L.R. 818, 124 Sol. Jo. 812 (H.L.); Dubai Bank v. Galadari (No. 6), [1992] T.L.R. 476; General Accident Assurance Co. of Canada and Sunnybrook Hospital (Re) (1979), 1979 1862 (ON SC), 23 O.R. (2d) 513, 96 D.L.R. (3d) 335 (S.C.); Glaxo Wellcome plc v. M.N.R., 1998 9071 (FCA), [1998] 4 F.C. 439, 147 F.T.R. 309n, 162 D.L.R. (4th) 433, 228 N.R. 164, 81 C.P.R. (3d) 372, 20 C.P.C. (4th) 243 (C.A.)[Leave to appeal to S.C.C. refd Dec. 10, 1998, [1998] S.C.C.A. No. 422]; Goodman v. Rossi (1995), 1995 1888 (ON CA), 24 O.R. (3d) 359, 125 D.L.R. (4th) 613, 12 C.C.E.L. (2d) 105, 37 C.P.C. (3d) 181 (C.A.); Interclaim Holdings Ltd. v. Down (2000), 2000 28245 (AB QB), 16 C.B.R. (4th) 84 (Alta. Q.B.); Johnston and Frank Johnston's Restaurants Ltd. (Re) (1980), 1979 3832 (PE SCTD), 33 Nfld. & P.E.I.R. 333, 93 A.P.R. 333 (P.E.I.C.A.); Kenney v. Loewen (1999), 1999 6110 (BC SC), 64 B.C.L.R. (3d) 346, 28 C.P.C. (4th) 179 (S.C.); Leahy v. Dr. A.B. (1992), 1992 2798 (NS SC), 113 N.S.R. (2d) 417, 309 A.P.R. 417, 8 C.P.C. (3d) 260 (S.C.) (sub nom. Leahy v. B.(A.)); McInerney v. MacDonald, 1992 57 (SCC), [1992] 2 S.C.R. 138, 126 N.B.R. (2d) 271, 93 D.L.R. (4th) 415, 137 N.R. 35, 317 A.P.R. 271, 12 C.C.L.T. (2d) 225, 7 C.P.C. (3d) 269; Mitchell and St. Michael's Hospital (Re) (1980), 1980 1780 (ON SC), 29 O.R. (2d) 185, 112 D.L.R. (3d) 360, 19 C.P.C. 113 (S.C.); Moodalay v. Morton (1785), 28 E.R. 1245, 1 Bro. C.C. 469, Dick. 652; Myers v. Wellesley Hospital (1986), 1986 2861 (ON SC), 57 O.R. (2d) 54, 14 C.P.C. (2d) 62 (H.C.J.); Norwich Pharmacal v. Customs and Excise Commissioners, [1973] 2 All E.R. 943, 3 W.L.R. 164, 117 Sol. Jo. 567, [1974] A.C. 133, R.P.C. 101 (H.L.); Orr v. Diaper (1876), 4 Ch. D. 92, 25 W.R. 23; P. v. T. Ltd., [1997] 4 All E.R. 200 (Ch. D.); Post v. Toledo, Cincinnati and St. Louis Railroad Co., 11 N.E. 540 (Sup. Ct. Mass. 1887); R. v. Gruenke, 1991 40 (SCC), [1991] 3 S.C.R. 263, 75 Man. R. (2d) 112, 130 N.R. 161, [1991] 6 W.W.R. 673, 7 C.R.R. (2d) 108, 67 C.C.C. (3d) 289, 8 C.R. (4th) 368 (sub nom. R. v. Fosty); Science Research Council v. Nassé, [1979] 3 All E.R. 673, 3 W.L.R. 762, I.C.R. 921, 123 Sol. Jo. 768 (H.L.); Slavutych v. Baker, 1975 5 (SCC), [1976] 1 S.C.R. 254, 55 D.L.R. (3d) 224, [1975] W.W.R. 620, 38 C.R.N.S. 306, 75 C.L.L.C. 14,263; Société Romanaise de la Chaussure S.A. v. British Shoe Corp., [1991] F.S.R. 1; Strazdins v. Orthopaedic & Arthritic Hospital Toronto (1978), 1978 1699 (ON SC), 22 O.R. (2d) 47, 7 C.C.L.T. 117, 7 C.P.C. 243 (H.C.J.); Taylor v. Anderton, [1995] 1 W.L.R. 447 (Eng. C.A.) Statutes referred to Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 Judicature Act, 1881, S.O. 1881, c. 5 Public Hospitals Act, R.S.O. 1970, c. 378 Public Hospitals Act, R.S.O. 1980, c. 410 Public Hospitals Act, R.S.O. 1990, c. P.40, ss. 37,39, 41-43 Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 8 Supreme Court of Judicature Act, 1873 (Eng.), 36 & 37 Vict., c. 66 Supreme Court of Judicature Act, 1875 (Eng.), 38 & 39 Vict., c. 77 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 14.05(3) (h) Authorities referred to Holmested and Gale, The Judicature Act of Ontario and Rules of Practice (1983), pp. 1693, 1694 Holmested and Langton, The Judicature Act of Ontario and The Consolidated Rules of Practice and Procedure (1890), p. 482 Matthews and Malek, Discovery, 2d ed. (1992), p. 22 Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2d ed. (Toronto: Butterworths, 1999), pp. 723-24 Story, Equity Jurisprudence, 12th ed., (1877), 1483 Wigmore on Evidence (McNaughton Rev. 1961), Vol. 8, 2285, 2286

Neil M. Abramson, for appellant. W.D.T. Carter, for respondent, Humber River Regional Hospital. Barnet H. Kussner, for respondent, St. Michael's Hospital.

The judgment of the court was delivered by

[1] MORDEN J.A.: -- The issues raised on this appeal are: (1) whether the applicant has a free-standing right of action for production of correspondence relating to him that is in the possession of the respondent Humber River Regional Hospital ("Humber"); and (2) if he has such a right of action, whether it is properly answered by a claim of privilege. Pitt J., whose reasons are reported at 1999 15086 (ON SC), 45 O.R. (3d) 630, decided both of these issues against the applicant. The applicant appeals from this decision. [See * at end of document]

[2] The following is an outline of the facts. The appellant is a certified specialist in anesthesia, is a member in good standing of the College of Physicians and Surgeons of Ontario, and had been a member of the active medical staff of the Wellesley Hospital since 1983. When the respondent St. Michael's Hospital assumed control of what became the Wellesley Central Hospital site of St. Michael's Hospital in or about April of 1998, the appellant was afforded medical staff privileges at this site.

[3] The Wellesley Central Hospital was ordered to be closed at a future date. The appellant applied for active staff privileges at Humber in the fall of 1997. His application was considered in the spring of 1998. On April 22, 1998, the Chief of Anesthesia at Humber wrote to the appellant to advise that "we would like to offer you an associate position in the Department of Anesthesia." The letter went on to say that the position was contingent upon Humber receiving a reference letter from the Chief of Anesthesia at the Wellesley Hospital and from the Chief of Staff at that hospital.

[4] The appellant provided Humber with the names of his former departmental chief and of certain other physicians who had been involved with the Wellesley Central Hospital's administration.

[5] Written references were provided to Humber. They comprised Humber's "Reference Questionnaire", duly completed, together with letters appended to them. In his affidavit in support of his application, the appellant deposed that he was advised by a member of Humber's board of trustees that the letters "were quite critical of my competence or character". In the cross-examination on his affidavit, Dr. Goluboff, the Chief of the Medical Staff at Humber, agreed with a question put to him that the reference letters were "particularly negative" with respect to the appellant. He also said that he had told the appellant that he would be obliged to indicate to the Humber board "that because of the letters, I couldn't support that application". The appellant was not appointed to the active medical staff at Humber.

[6] Humber, however, permitted the appellant to practise his profession on a locum tenens basis. On the hearing of the appeal, counsel informed us that the appellant had, just recently, been appointed to the associate medical staff at Humber. Without going into detail, it may be said that this position carries with it a lower level of rights than that of being on the active medical staff. It is agreed by all parties before us that this development does not make the appeal moot.

[7] The appellant's lawyer asked Humber for the reference correspondence. In his letter, the appellant's lawyer said:

So that there can be absolutely no misunderstanding, let me take this opportunity to confirm that this inquiry has absolutely nothing whatever to do with Dr. Straka's current locum tenens or medical staff privileges at the Humber River Regional Hospital. Indeed, Dr. Straka has been delighted by his work there and is most desirous of continuing on with same. Moreover, Dr. Straka advises that he is particularly pleased by the positive working environment and the collegial interaction with the staff at your hospital.

Humber refused to produce the correspondence on the ground that it was privileged.

[8] Later in these reasons, when I consider the question of privilege, I shall set forth more of the evidence relating to the "Reference Questionnaire" and to the "peer review" process respecting appointments to the active medical staff.

[9] In the appellant's notice of application that commenced this proceeding, he sought an "order for production of any correspondence in the respondent's possession which in any way relate[s] to the applicant physician's application for medical staff privileges at the respondent hospital", and he stated that he required "production of said correspondence in order to pursue any possible action in defamation or for interference with economic relations and to pursue full active medical staff privileges at the respondent hospital."

[10] The foregoing paragraph states what the object of the application was. Its object is also dealt with in the appellant's supplementary affidavit in support of the application. It contains the following:

2. I am seeking production of the so called "letters of reference" so that I may evaluate whether or not to commence litigation against the authors of same in order to protect my professional reputation and good name. I verily believe that such litigation would be impossible without being provided with the opportunity to review and consider these correspondence.

3. While I continue to work as a locum tenens at the respondent hospital, I have been advised by its chief of staff, Dr. Lanny Goluboff, and verily believe, that the existence of these "letters of reference" continues to act as a bar to my appointment to the active medical staff of the respondent. Therefore, it is my hope that the within application will be granted such that litigation may be commenced and a court of competent jurisdiction will be able to rule that those "letters of reference" contain material falsehoods. Additionally, should the within application be granted, those "letters of reference" may be expressly commented upon and modified by either their authors or other individuals who could comment on any events there referred to. Subsequent to such a court order or additional written comment I verily believe that I would become eligible to obtain an active medical staff appointment at the respondent hospital.

[11] Before the application came on for hearing before Pitt J. [reported at 1999 15086 (ON SC), 45 O.R. (3d) 630], St. Michael's Hospital successfully moved before Lane J. to be added as a respondent to the application. Lane J.'s reasons are reported at 1999 15077 (ON SC), 45 O.R. (3d) 414.

[12] I now turn to the issues of this appeal.

1. Does the Appellant Have a Free-Standing Right of Action to Obtain an Order for the Production of the Correspondence?

[13] This issue is logically the first to be considered because, if the appellant has no legal right to claim the correspondence, i.e. no "cause of action", the question of whether there is a defence to the claim in the form of a privilege does not arise.

[14] Pitt J. held that "a proceeding for such free-standing relief is not sustainable procedurally" (para. 13) [p. 634 O.R.]. He also said (at para. 9) [p. 633 O.R.]:

I am not prepared to find nor do I need to find that there may not be circumstances in which "free-standing" relief may be granted by a Superior Court pursuant to an application in the absence of an action or proceeding. It seems to me, however, that such relief ought only to be granted, if at all, in those circumstances in which either there is no recognized avenue available for pursuing the relief, or where the conventional route is so fraught with obstacles and the damage being suffered so great that it would be an act of judicial irresponsibility to deny access to the courts to the applicant. The denial of the right to earn a living, I do not doubt, would meet the test of intolerable suffering.

(Emphasis in original)

[15] By "procedurally sustainable" I take Pitt J. to mean that only in an existing action is there a procedure entitling someone to have production of documents in someone else's possession.

[16] Before us the appellant made several submissions on this question. First, he relied upon rule 14.05(3)(h) in the Rules of Civil Procedure. This provision enables a proceeding to be brought by application where the relief claimed is "in respect of any matter where it is unlikely that there will be any material facts in dispute". This provision, in itself, is of no assistance to the appellant. It goes no further than providing for a procedural vehicle which can be used by a person who has a substantive legal right to relief in which to assert that right. It does not create any substantive legal rights in itself.

[17] Next, the appellant relied upon the following decisions, in all of which a right to the production of medical records was recognized in a free-standing proceeding: Re General Accident Assurance Co. of Canada and Sunnybrook Hospital (1979), 1979 1862 (ON SC), 23 O.R. (2d) 513, 96 D.L.R. (3d) 335 (S.C.); Strazdins v. Orthopaedic & Arthritic Hospital Toronto (1978), 1978 1699 (ON SC), 22 O.R. (2d) 47, 7 C.P.C. 243 (H.C.J.); and Myers v. Wellesley Hospital (1986), 1986 2861 (ON SC), 57 O.R. (2d) 54, 14 C.P.C. (2d) 62 (H.C.J.). In each of these cases the right to production was based on a legislative provision, a regulation made under the Public Hospitals Act, R.S.O. 1970, c. 378 and R.S.O. 1980, c. 410, which was interpreted to confer the "cause of action". (A fourth decision, Re Mitchell and St. Michael's Hospital (1980), 1980 1780 (ON SC), 29 O.R. (2d) 185, 112 D.L.R. (3d) 360 (S.C.), held that the regulation did not confer any right to production.) The existence of the legislative provision makes these cases distinguishable.

[18] The appellant also relied upon the judgment of the Supreme Court of Canada in McInerney v. MacDonald, 1992 57 (SCC), [1992] 2 S.C.R. 138, 93 D.L.R. (4th) 415. In this case, La Forest J. began his reasons for the court as follows, at p. 417 D.L.R. [p. 141 S.C.R.]:

The central issue in this case is whether in the absence of legislation a patient is entitled to inspect and obtain copies of his or her medical records upon request.

[19] La Forest J.'s answer to the question was in the affirmative. It is not necessary to consider his reasons for this conclusion in detail. It is sufficient to note that the basis of the patient's entitlement lay in the fiduciary relationship between the patient and doctor. I refer, in particular, to p. 424 D.L.R. [p. 149 S.C.R.]: ". . . [T]he fiducial qualities of the relationship extend the physician's duty . . . to include the obligation to grant access to information the doctor uses in administering treatment"; and to p. 427 D.L.R. [p. 154 S.C.R.]: "[T]he patient's interest in his or her records is an equitable interest arising from the physician's fiduciary obligation to disclose the records upon request."

[20] In the present case the appellant cannot point to any established form of legal relationship between himself and Humber, fiduciary or analogous to it, on which to base his claim for production of the correspondence. Accordingly, McInerney v. MacDonald is of no assistance to him.

[21] Before leaving this authority, however, I would note that the court held that the right of access to information in the doctor-patient fiduciary relationship was not an absolute one. At p. 427 D.L.R. [p. 155 S.C.R.] La Forest J. said:

I hasten to add that, just as a relationship may be fiduciary for some purposes and not for others, this characterization of the doctor's obligation as "fiduciary" and the patient's interest in the records as an "equitable interest" does not imply a particular remedy. Equity works in the circumstances to enforce the duty. This foundation in equity gives the court considerable discretion to refuse access to the records where non-disclosure is appropriate.

(Emphasis in original)

[22] La Forest J. went on to indicate at pp. 429 and 431 [pp. 156-59 S.C.R.] that exceptions justifying non-disclosure might include cases where the interests of third parties are involved. This exception could well be applicable to the case before us if it were established that the appellant had some form of equitable claim, similar to that in McInerney, against Humber.

[23] There is a third possible basis of a free-standing right in the appellant to claim production of the correspondence which we should consider -- that of an action for discovery, the current version of the equitable bill of discovery over which the Court of Chancery had jurisdiction in England before the Supreme Court of Judicature Acts, 1873 and 1875 [36 & 37 Vict., c. 66 and 38 & 39 Vict., c. 77] and in Ontario before the Judicature Act, 1881, [S.O. 1881, c. 5]. We raised this possible basis with counsel for the parties following the completion of the oral argument and have received from them helpful written submissions on it.

[24] This free-standing right to discovery was resurrected by the House of Lords in Norwich Pharmacal v. Customs and Excise Commissioners, [1973] 2 All E.R. 943, [1974] A.C. 133. In this case, the House of Lords held that the owners of a patent of a chemical compound, furazolidine, which was being infringed by illicit importation of the compound manufactured abroad without licence, were entitled to maintain an action against the Commissioners of Customs and Excise to obtain the names and addresses of the importers who were infringing their patent. In the Court of Appeal, the plaintiffs acknowledged that they had no other cause of action against the Commissioners. In the result, it was held by the House of Lords that the plaintiffs had a right to commence a proceeding in which the only relief sought was discovery of information.

[25] Before considering the nature and scope of the right to assert a claim for discovery only, the first matter which should be addressed is whether, in light of the Rules of Civil Procedure and predecessor rules going back to 1881, there is any proper scope for the action for discovery. The respondent St. Michael's Hospital submits that the Rules of Civil Procedure provide a complete code for the conduct of legal proceedings and that, therefore, they alone should govern the availability and scope of discovery and production. The hospital submits that, because the rules do not provide for discovery or production from persons where no action has been commenced, an action for discovery would be irreconcilable with the rules and should therefore not be held to exist.

[26] With respect, I do not accept this submission. The fact that the rules provide for discovery only within the confines of actions does not convey the negative implication that the right cannot exist in the absence of an action or before an action is commenced. The submission has been expressly rejected in Kenney v. Loewen (1999), 1999 6110 (BC SC), 28 C.P.C. (4th) 179, 64 B.C.L.R. (3d) 346 (S.C.) and Interclaim Holdings Ltd. v. Down (2000), 2000 28245 (AB QB), 16 C.B.R. (4th) 84 (Alta. Q.B.), and implicitly rejected in all of the post-Judicature Act decisions that recognize the pre- action discovery remedy. It may be noted that a right of pre-action discovery has been conferred by a rule of practice in Nova Scotia (see Leahy v. Dr. A.B. (1992), 1992 2798 (NS SC), 113 N.S.R. (2d) 417, 309 A.P.R. 417 (S.C.T.D.) and at one time was in Prince Edward Island (see Re Johnston and Frank Johnston's Restaurants Ltd. (1980), 1979 3832 (PE SCTD), 33 Nfld. & P.E.I.R. 333, 93 A.P.R. 333 (P.E.I.C.A.).

[27] Further, in Ontario there are clear indications that the equitable action for discovery co-exists with the rules of practice. In the first edition of Holmested and Langton, The Judicature Act of Ontario and The Consolidated Rules of Practice and Procedure (1890), which was published after the Judicature Act, 1881 and the new consolidated rules were enacted, the following appears at p. 482:

In general discovery is obtained by interlocutory proceedings as ancillary to the main object of an action, but an action for discovery may, in a proper case, still be brought: Orr v. Diaper, 4 Ch. D. 92; Anderson v. Bank of British Columbia, 2 Ch. D. 644.

[28] Orr v. Diaper (1876), 4 Ch. D. 92, 25 W.R. 23, cited in this passage, was one of the major precedents relied upon by the House of Lords in Norwich Pharmacal in upholding the continued existence of the former equitable bill of discovery in the form of the modern action for discovery. Holmested and Langton continued this reference to the equitable action for discovery, in one form or another, through to the final edition, the fifth in 1940, at p. 927. The reference is also in the subsequent work of Holmested and Gale, The Judicature Act of Ontario and Rules of Practice (1983) at p. 1693.

[29] If the learned editors of these works thought that the action for discovery was at odds with the discovery scheme in the rules of practice, I do not think that they would have referred to the action without making this comment. In fact, Holmested and Gale at p. 1693 contains the following:

Actions for discovery, corresponding to the old "bills of discovery" in Chancery, may still be brought in England, though the necessity for such actions is now of rare occurrence; see Bray on Discovery, p. 610, where he said that there had been (prior to 1885) only three reported cases since the Judicature Act, referring to Reiner v. Salisbury (1876) 2 Ch. D. 378; Ainsworth v. Starkie, [1876] W.N. 8; Orr v. Diaper (1876) 4 Ch. D. 92. Under the system introduced by the Judicature Act it is not necessary to bring an action merely for the purpose of obtaining discovery, since "The plaintiff in every action is entitled to discovery as ancillary to the relief which he claims in the action": per Lord Herschell, in Ind. Coope & Co. v. Emmerson (1887) 12 App. Cas. 300 at 311.

[30] With respect to the last sentence in this quotation, I have no doubt that the bringing of an action merely for discovery, to obtain discovery for the purposes of an existing action, would not only be unnecessary but, also, not legally possible. Such an action would be met by the complete code answer.

[31] Holmested and Gale, specifically in reference to actions for discovery in Ontario, refer at p. 1694 to the judgment of Meredith C.J. in Bartram v. Wagner (1907), 9 O.W.R. 448 (H.C.J.). This was an action for an account and delivery over of documents and property. The plaintiff was the executor under the will of the defendant's deceased husband. At pp. 449-50 Meredith C.J. said:

It would appear that, notwithstanding the ample power to enforce discovery which the High Court possesses since the passing of the Judicature Act, an action for discovery may be brought: Orr v. Diaper, 4 Ch. D. 92; such actions are, however, rare, and the practice with regard to them is the same as that which was applicable to a bill for discovery before the Act. Such a bill was not brought to a hearing, and on a full answer being given, no further proceedings could be taken on it, and the defendant was entitled to an order for payment of his taxed costs: Bray on Discovery, p. 611.

[32] In light of the foregoing, I think that an action for discovery lies in this jurisdiction. The proceeding may be brought by way of application, if there are no material facts in dispute (rule 14.05(3)(h)).

[33] Before concluding this part of my reasons, I should say something about the bearing of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 on the issue of a free-standing right to claim production from Humber in this case. Public hospitals are not subject to this Act, and Pitt J. relied on this consideration and certain provisions in the Act, as strongly supporting his conclusion that the appellant had no free-standing right to production. On this appeal, the respondent St. Michael's Hospital asserted this argument against the right to production.

[34] Pitt J.'s reasons and St. Michael's Hospital's submissions were given and made in a context that did not take into account that our law includes the modern equivalent of the former equitable bill of discovery. The Freedom of Information and Protection of Privacy Act in s. 10(1) confers the right of access to government information on "[e]very person". The legislation, as far as I can see, does not require that the person seeking information have some particular purpose. Openness of government is the value underlying the Act.

[35] There is little significant overlap between the scope and purpose of the Act and of the equitable remedy. Accordingly, I would not regard the exclusion of public hospitals from the burdens of the Freedom of Information and Protection of Privacy Act as being a factor which tells against the right of a person, who can bring his or her case within the requirements of a modern action for discovery, to assert a claim in such a proceeding.

[36] The real question with respect to an action for discovery is: in what circumstances does it properly lie? We are concerned with an equitable remedy and, accordingly, the exercise of a discretion is involved. This was expressly affirmed in British Steel Corp. v. Granada Television Ltd., [1981] All E.R. 452, [1981] A.C. 1096 at p. 1174 (H.L.), which was an action for discovery. The object of the action is to enable justice to be done. With these general observations mentioned by way of preface, I turn now to more specific concerns.

[37] Norwich Pharmacal has been helpfully analyzed by Stone J.A. in Glaxo Wellcome PLC v. M.N.R., 1998 9071 (FCA), [1998] 4 F.C. 439, 162 D.L.R. (4th) 433 (C.A.), leave to appeal to the Supreme Court of Canada refused December 10, 1998, [1998] S.C.C.A. No. 422. At pp. 448-49 D.L.R., Stone J.A. stated two "threshold requirements" related to the granting of an order for discovery in a proceeding seeking discovery alone. They are: (1) the person seeking discovery must have a bona fide claim against the alleged wrongdoers; and (2) the person seeking discovery must share some sort of relationship with the person from whom discovery is sought. This second requirement was expressed in different ways in Norwich Pharmacal, where it was said that a person against whom discovery is sought should be "mixed up in the tortious acts of others so as to facilitate their wrongdoing" even though this is "through no fault of its own" (p. 175 A.C.) -- or should be "involved in the transaction" (p. 188 A.C.). A person fitting these descriptions is not a "mere witness" against whom, it is clear, no right of pre-action discovery lies. A "mere witness" can, of course, be compelled to testify at the trial, but not before. In Ontario, this is subject to obtaining, in an action, leave to examine a non- party: rule 31.10 of the Rules of Civil Procedure.

[38] Stone J.A. also said that a "basic condition" for this kind of discovery "is that the person from whom discovery is sought must be the only practical source of information available to" the person seeking discovery (at p. 449 D.L.R.).

[39] For the purpose of addressing the issues on this appeal, I accept the foregoing analysis.

[40] In the present case, the respondents do not, correctly, in my view, take issue with the satisfaction of the second threshold. Humber requested the reference letters in question and, if they are defamatory, Humber is "mixed up" or "involved" in the commission of the alleged tort, albeit entirely innocently. In other words, Humber is not a "mere witness".

[41] What the respondents do submit is that the appellant is not entitled to the discovery sought because he does not allege a bona fide claim against the reference-givers and, also, because he has not availed himself of an alternative source of information, a proceeding under s. 37 of the Public Hospitals Act, R.S.O. 1990, c. P.40. I shall now consider each of these submissions.

(a) Is there a bona fide claim against the reference- givers?

[42] The respondents submit that the appellant has not alleged a bona fide claim against the reference-givers. The allegations in the notice of application do not contain any statement that the letters of reference defame the appellant or are otherwise actionable, and the respondents submit that the appellant has no evidence to this effect. They submit that the equitable bill of discovery is not available in circumstances where the applicant seeks evidence which he or she thinks might assist in determining whether or not a right has been infringed or a tort committed. They refer to the following statement of Lord Cross in Norwich Pharmacal at p. 199 A.C.:

In the course of the argument fears were expressed that to order disclosure of names in circumstances such as exist in this case might be the "thin end of the wedge," that we might be opening the door to "fishing requests" by would-be plaintiffs who want to collect evidence or the requests for names made to persons who had no relevant connection with the person to be sued or with the events giving rise to the alleged cause of action but just happened to know the name. I think that these fears are groundless. In the first place, there is a clear distinction between simply asking for the name of a person whom you wish to make a defendant and asking for evidence.

[43] The implication of this is that the principle underlying an action for discovery is confined to a case where the applicant has evidence of a legal wrong done to him or her but lacks only the name of the wrongdoer. These, of course, were the facts in Norwich Pharmacal and in many other cases where relief was granted on a claim for discovery only. See, for example, Moodalay v. Morton (1785), 28 E.R. 1245, 1 Bro. C.C. 469; Orr v. Diaper, supra; Post v. Toledo, Cincinnati and St. Louis Railroad Co. (1887), 11 N.E. 540 (Sup. Ct. Mass.); and Glaxo Wellcome plc v. M.N.R., supra. In fact, a frequently quoted black letter statement of the principle in Story, Equity Jurisprudence, 12th ed. (1877) in 1483 reads:

But, in general, it seems necessary, in order to maintain a bill of discovery, that an action should be already commenced in another court, to which it should be auxiliary. There are exceptions to this rule, as where the object of discovery is to ascertain who is the proper party against whom the suit should be brought. But these are of rare occurrence.

(Emphasis added)

[44] The principle has, however, been expressed in wider terms in Norwich Pharmacal itself. Lord Reid said at p. 175 A.C.:

They [the authorities] seem to me to point to a very reasonable principle that if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration.

[45] This goes beyond confining the relief to the disclosing of the identity of wrongdoers and includes the duty to assist "by giving full information". In the English text Matthews and Malek, Discovery, 2d ed. (1992), the authors say at p. 22:

It should be noted that disclosure of the wrongdoer's identity is not enough; the obligation extends to giving full information.

[46] In support of this statement they cite Société Romanaise de la Chaussure S.A. v. British Shoe Corp., [1991] F.S.R. 1 at p. 5 where Millett J. said:

The plaintiffs of course put their case on the basis of the Norwich Pharmacal case, under which a defendant who has prima facie become involved, however innocently, in wrongdoing, is under a positive duty to assist a plaintiff by giving him full information and disclosing the identity of the wrongdoer. I observe that it is not sufficient to disclose the identity of the wrongdoer; the obligation extends to giving full information. That must include all information necessary to enable the plaintiff to decide whether it is worth suing the wrongdoer or not.

[47] Matthews and Malek cites, after Société Romanaise, and after "cf.", Dubai Bank Ltd. v. Galadari (No. 6), The Times, October 14, 1992 (C.A.) (see [1992] T.L.R. 476). In Dubai Bank, the judge of first instance had made an order against two defendants that they, on or before a certain date, by all lawful means available to them, obtain and produce to the plaintiffs on discovery (a) all documents relating to an account from or through which sums due to the plaintiffs were transferred including all bank statements; and (b) all documents relating to the payment of moneys pursuant to a settlement agreement dated February 11, 1989.

[48] The Court of Appeal held that this order was not within the Norwich Pharmacal principle. The report contains the following at p. 177:

In their Lordships' view that was not a proper analogy. The Norwich Pharmacal principle extended the power to order discovery of information by ordering a person who had assisted the commission of a wrong to disclose the identity of the wrongdoer. In effect, it was a power to require an agent to disclose his hitherto undisclosed principal.

This statement appears to reflect a narrow view of the principle.

[49] The appellant relies upon P. v. T. Ltd., [1997] 4 All E.R. 200 (Ch. D.). In this case the plaintiff was uncertain whether a tort had been committed, specifically defamation of himself by an unknown third party. By notice of motion, the plaintiff had applied to the court for an order that the defendant, his former employer, disclose to him, and state in an affidavit, whether it had in its possession any documents containing or evidencing the precise details of allegations which were made against him and formed the basis of his dismissal from employment, and the identity of the complainant who made those allegations. At p. 208 Scott V-C. said:

In that respect [this refers to the fact that the plaintiff did not know whether he had a cause of action against the informant] his [the plaintiff's] position is not the same as that of the plaintiff in the Norwich Pharmacal case. In the Norwich Pharmacal case the plaintiff was able to demonstrate that tortious infringements of patent rights were being committed. It did not know by whom. It did not know who to sue. But that there was tortious conduct against it was not in question. In the present case, it is in question whether a tort has been committed against Mr P. He believes that it has. The purpose of any order I make, as I suppose of any order that a judge ever makes, is to try to enable justice to be done. It seems to me that in the circumstances of the present case justice demands that Mr P should be placed in a position to clear his name if the allegations made against him are without foundation. It seems to me intolerable that an individual in his position should be stained by serious allegations, the content of which he has no means of discovering and which he has no means of meeting otherwise than with the assistance of an order of discovery such as he seeks from me. It seems to me that the principles expressed in the Norwich Pharmacal case, although they have not previously been applied so far as I know to a case in which the question whether there has been a tort has not clearly been answered, ought to be applicable in a case such as the present.

[50] Further, in the recent English Court of Appeal decision AXA Equity & Life Assurance plc v. National Westminster Bank plc, [1998] E.W.J. No. 487, Morritt L.J. expressed the following dictum in para. 25:

Counsel for the Investors also raised in the course of argument the case where, although the identity of the wrong- doer is known, one fact crucial to the proper allegation of his liability is not but is susceptible of ascertainment from a known document in the hands of a third-party. It was suggested that in such a case if the third-party had been mixed up in the relevant transaction then there was no objection to an order for discovery; the mere witness rule would not be infringed because without the ascertainment of the missing fact there would be no trial; the application would not be lacking in particularity so as to be stigmatised as mere fishing for the document constituting the piece missing from the jigsaw puzzle would be capable of identification. It is not necessary to decide the point and [I] do not do so but I see much force in it. The consequence would be that the principle of Norwich Pharmacal would be applicable in any case where, for whatever reason, the action for which the document or information was required could not in its absence proceed to trial and would not be confined to cases in which the reason why the action could not so proceed was ignorance as to the identity of the proper defendant. The establishment of such a proposition would also enable effect to be given to the reference made by Lord Reid in Norwich Pharmacal to the duty to provide "full information" as well as the identity of the wrong-doer without giving rise to a general obligation to give disclosure. cf Arab Monetary Fund v. Hashim (No. 5), [1992] 2 All E.R. 911, 914.

[51] The foregoing authorities indicate that the nature and scope of the Norwich Pharmacal principle is far from settled. There was no mention of a "fishing inquiry" in P. v. T. Ltd. even though the plaintiff did not know whether he had a cause of action. He did know, however, that a person, or some persons, had made serious allegations against him of gross misconduct in the way in which he had conducted himself and that this had caused his employer to dismiss him. He also had good reason to think that this had ruined his career. In the present case, all that the appellant knows is that the reference letters were "particularly negative" with respect to his character and competence and of such a nature that they stood in the way of his appointment to Humber's active medical staff. They still stand in the appellant's way to appointment to Humber's active medical staff.

[52] If a narrow approach to determining the elements of an action for discovery were to govern this case, it would be difficult to say that a bona fide claim is asserted in this proceeding. The appellant does not know whether he has a cause of action against the reference-givers. It could be said that he is "fishing" to find out if he has a case. I do not think, however, that he is engaged in "mere fishing" (Axa Equity, supra). He does know that the letters damaged his opportunity of being appointed to the active medical staff at Humber. Although it is nowhere expressly stated in the material, it is obviously implicit in the appellant's position that he is unaware of what facts could have given rise to these letters. He would like to find out so that he may take steps to clear his name through legal proceedings if this should prove necessary.

[53] On these facts, I do not think that the appellant should be "non-suited" because his claim is not a bona fide one, i.e. that his claim should fail because the threshold requirement of a bona fide claim has not been shown. As I have said, we are concerned with an equitable remedy the granting of which involves the exercise of a discretion. The general object is to do justice. Accordingly, I do not think that a rigid view should be taken of the elements of the claim. With this approach in mind, I think that it is reasonable to accept that sufficient bona fides has been shown to justify consideration of the case as a whole. The nature and apparent strength of the appellant's case is a factor to be weighed together with the other relevant factors in arriving at the final determination of the claim.

(b) Is the person from whom discovery is sought the only practical source of the information?

[54] Under this heading, the respondents submit that the appellant should have applied under s. 37 of the Public Hospitals Act, R.S.O. 1990, c. P.40 for appointment to the active medical staff at Humber. In making this submission they refer to the rights the appellant would have under s. 8 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, which reads:

8. Where the good character, propriety of conduct or competence of a party is an issue in a proceeding, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto.

Reference may also be made to s. 39(5) of the Public Hospitals Act, which reads:

39(5) Where a hearing by the board is required, the person requiring the hearing shall be afforded an opportunity to examine before the hearing any written or documentary evidence that will be produced or any report the contents of which will be given in evidence at the hearing.

[55] It is not clear to me that in a proceeding under the Public Hospitals Act the appellant would have the right to production, before or at the hearing, of the reference letters. He would have the right to be informed of the allegations against him, in which case he probably would be apprised of the essential contents of the letters.

[56] Even if the appellant could obtain copies of the letters in a discovery process under the Public Hospitals Act, it is likely that he could be restrained by the implied undertaking principle from using them for any purpose other than prosecuting his statutory claim. See Goodman v. Rossi (1995), 1995 1888 (ON CA), 24 O.R. (3d) 359, 125 D.L.R. (4th) 613 (C.A.).

[57] In view of the foregoing, I do not think that the possibility of a proceeding under the Public Hospitals Act should be regarded as an alternative practical source of the information the appellant seeks and, as such, defeat his claim at this stage of the analysis. As will become apparent in the next part of my reasons, I do consider the appellant's rights under the Act to be material to the claim for privilege asserted by the respondents.

2. If the Appellant Has a Free-Standing Right of Action, Is His Claim Answered by a Claim of Privilege?

[58] Pitt J. decided this issue against the appellant on the application of Wigmore's four conditions for the establishment of a privilege against the disclosure of communications. The parties joined issue before us on the application of these conditions. They are set forth in 2285 in Vol. 8 of Wigmore on Evidence (McNaughton Rev. 1961) as follows:

. . . [F]our fundamental conditions are recognized as necessary to the establishment of a privilege against the disclosure of communications:

(1) The communications must originate in a confidence that they will not be disclosed.

(2) This 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.

(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

(Emphasis in the original text)

[59] It has been long established that confidentiality alone, no matter how earnestly desired and clearly expressed, does not make a communication privileged from disclosure: Wigmore at 2286. Something more than confidentiality must exist and this something more must satisfy the Wigmore conditions: Slavutych v. Baker, 1975 5 (SCC), [1976] 1 S.C.R. 254, 55 D.L.R. (3d) 224; R. v. Gruenke, 1991 40 (SCC), [1991] 3 S.C.R. 263, 75 Man. R. (2d) 112; and Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2d ed. (Toronto: Butterworths, 1999) at pp. 723-24.

[60] I turn now to the Wigmore conditions. The appellant does not really contest the application of the first condition. He originally submitted that the letters appended to the reference questionnaire form, which advised those submitting references that "[y]our comments will be held in the strictest confidence", could not have been sent in the confidence that they would not be disclosed. He did not, however, pursue this point -- correctly, I think, because there could not be any basis for thinking that the letters were in any sense different from the answers in the questionnaire form. They were part of them.

[61] The appellant stood his ground on Wigmore's conditions (2) and (4) and submitted that neither these had been satisfied. He accepted that condition (3) had been satisfied -- that is, that the relation between those replying to requests for reference letters and the requesting hospital is one which, in the opinion of the community, ought to be sedulously fostered. There is overlap between this condition and conditions (2) and (4) and, in dealing with them, I shall indicate why I think the appellant's response to condition (3) is right. Accordingly, I shall not deal separately with condition (3) but shall turn now to conditions (2) and (4).

[62] With respect to condition (2) the appellant submits that the element of confidentiality, that is, secrecy, is not essential to the full and satisfactory maintenance of the relation between hospitals and reference-givers. In fact, he submits that the candour, which is rightly expected from those giving references, is better enhanced by openness and disclosure and that the view that confidentiality engenders candour has been "judicially decimated". He refers, in particular, to Science Research Council v. Nassé, [1979] 3 All E.R. 673, 3 W.L.R. 762 (H.L.). This case involved whether confidential reports made on employees by their superiors relating to the employees' performance suitability for promotion should be ordered to be produced in proceedings alleging discrimination in employment. The complainants sought production not only of the reports relating to themselves (as to which the employers had no objection) but also of those relating to other employees. The result of the appeal in the House of Lords was that the documents should be produced, but only subject to the tribunal's first inspecting them. The appellant relies upon the following passage in the opinion of Lord Salmon at pp. 683-84 [All E.R.]:

I cannot agree that the production of such documents could have the dire effect which has been suggested, and of which there is certainly no real evidence. I cannot accept the proposition that those whose duty it was to write reports about a candidate and his record, suitability for promotion etc would lack in candour because the reports, or some of them, might possibly sometimes see the light of day. This proposition bears a striking resemblance to that which was accepted as sound for upwards of 20 years after the obiter dicta pronounced by Viscount Simon LC in Duncan v Cammell Laird & Co Ltd [[1942] All E.R. 587, A.C. 624]. This proposition was however held to be unsound in Re Grosvenor Hotel, London (No. 2), [[1964] 3 All E.R. 354, [1965] Ch. 1210 at 1233], and generally accepted as unsound during the three years following that decision. The obiter dicta in Duncan v Cammell Laird & Co Ltd was then temporarily revivified by a majority decision of the Court of Appeal in Conway v Rimmer, [[1967] 2 All E.R. 1260], but was finally put to rest when that majority decision was reversed in your Lordships' House. No more than I accept the proposition relating to candour, do I accept the proposition that employees anxious for promotion or transfer would be inhibited from making the necessary applications if they knew that their application forms and the written decisions relating to them might also sometimes be allowed to see the light of day.

[63] I accept that it is not difficult to find judicial pronouncements to the same effect, that is, statements against the importance of confidentiality to candour. The question of whether confidentiality leads to candour is, of course, one of fact to be determined on the evidence in the case under consideration. This is recognized by Lord Salmon in Science Research Council in his observation that there was "no real evidence" supporting "the dire effect" that would apparently result from breach of confidentiality.

[64] On a more general plane, the importance of the evidence in the case is suggested by Lamer C.J.C. in R. v. Gruenke, 1991 40 (SCC), [1991] 3 S.C.R. 263 at p. 290, 75 Man. R. (2d) 112 with respect to the use of the Wigmore conditions:

This is not to say that the Wigmore criteria are now "carved in stone", but rather that these considerations provide a general framework within which policy considerations and the requirements of fact-finding can be weighed and balanced on the basis of their relative importance in the particular case before the court. Nor does this preclude the identification of a new class on a principled basis.

[65] In regard to the importance of fact-finding in determining the application of the conditions on a case-by-case basis, I refer to the decision of the English Court of Appeal in Taylor v. Anderton, [1995] 1 W.L.R. 447 (Eng. C.A.), which was concerned with the production, in a civil action against a former chief constable for malicious prosecution, of reports prepared by investigating officers during investigations into police conduct which had taken place after the plaintiff's acquittal on criminal charges. The defendant asserted a claim to public interest immunity in respect of the reports. The Court of Appeal concluded that the reports formed a class to which public interest immunity attached but it remitted the case for ultimate determination by the judge of first instance. The judge could order production if he was satisfied that the public interest in disclosure outweighed that in preserving confidentiality.

[66] In Taylor v. Anderton there was evidence given by the deputy chairman of the Police Complaints Authority on the importance of confidentiality to the forthright expressions by investigating officers. At p. 465 Sir Thomas Bingham M.R. said:

I am fully alive to the existence of a current of opinion strongly flowing in favour of openness and disclosure. I am also, however, mindful of the fundamental public interest in ensuring that those responsible for maintaining law and order are themselves uncorrupt, law-abiding, honest and responsible. I do not myself find the points made by Mr. Cartwright [the deputy chairman] in his affidavit to be unconvincing, unrealistic or suggestive of self-interested special pleading. In very many cases where an investigating officer is appointed, there must be a real prospect of civil, criminal or disciplinary proceedings. I have no difficulty in accepting the need for investigating officers to feel free to report on professional colleagues or members of the public without the apprehension that their opinions may become known to such persons. I can readily accept that the prospect of disclosure in other than unusual circumstances would have an undesirably inhibiting effect on investigating officers' reports. I would therefore hold that the reports of investigating officers made in circumstances such as these form a class which is entitled to public interest immunity. That does not, of course, shut out the plaintiff if he is able to satisfy the judge, applying the familiar tests, that, on the facts of this case, the public interest in disclosure of the contents of these reports or any part of any of them, outweighs the public interest in preserving the confidentiality of these reports. That is a matter for the trial judge, and it is a judgment which he will be very well fitted to make.

[67] As indicated earlier in my reasons, I shall now set forth the evidence in the present case relating to the "Reference Questionnaire" and to Humber's "peer review" process respecting appointments to the active medical staff. The letter of Dr. Goluboff, Humber's Chief of Medical Staff, which requested the references, reads as follows:

RE: Dr. Pavel Straka

The above physician has applied to join the Medical Staff of Humber River Regional Hospital and has given your name in reference. It would be greatly appreciated if you would complete and return this Reference Questionnaire which will aid our Credentials Committee in assessing his/her suitability for appointment.

We appreciate your answers to these questions in an objective and forthright manner. Please offer any other comments you believe will help us to evaluate the clinical abilities and other skills of the applicant.

Your comments will be held in the strictest confidence.

[68] In his affidavit Dr. Goluboff said:

9. I believe that the letters of reference at issue are both confidential and privileged for the following reasons:

a. First, the letters of reference were explicitly requested in confidence and with the expectation that they would not be disclosed to anyone other than the Hospital's Credentials Committee.

b. Second, confidentiality is essential to ensuring that reference requests which are made as part of the Hospital's staff selection process will generate honest and frank peer review from the medical community. Without the assurance of confidentiality, I believe that physicians would be reluctant to provide opinions which might be honestly held but not well-received by those about whom they are given.

c. Third, there is a strong public interest in maintaining the confidentiality of letters of reference which are generated by the medical community as part of a peer review process. In particular, the experience, competence and reputation of a physician are all factors which are relevant to a proper assessment of his or her suitability for appointment to a staff position. Members of the public who rely upon hospitals are entitled to expect that staff appointments will not occur without an assessment of these factors. It would be exceedingly difficult to obtain reliable information relevant to these factors without the candid input of an applicant's peers, colleagues and/or superiors.

d. Fourth, disclosure of the letters of reference relating to Dr. Straka would tend to undermine the effectiveness of the medical staff appointment process.

[69] The cross-examination on this part of the affidavit did not make any inroads on it. In the course of it, Dr. Goluboff gave further evidence why he had deposed that confidentiality was important as far as the candour of the references was concerned:

Q. . . ., and when you say in paragraph "B" that without the assurance of confidentiality, you believe the physicians would be reluctant to provide opinions, on what do you base that belief? Any discussions you had?

A. Past experience, on occasion.

Q. Past experience, on occasion? Do you want to elaborate?

A. I mean, it's not a consistent thing. There have been applicants who have -- whom I have over the years -- with whom I've received references on from -- for example, teaching programs, which were highly complimentary, but when you actually called up colleagues involved in the teaching program whom you knew, and spoke to them, it was apparent that these references that had been requested by the candidate were far from totally revealing.

Q. I understand that, but I don't understand how --

A. So, we believe -- and I think there has been experience whereby if the -- if the -- often in these cases, the candidate has received a copy of the reference.

Q. Right.

A. So, they actually have a copy and it has been our experience that those are always very positive. When somebody writes somebody -- when they've been asked to provide a reference, they provide the candidate with the reference, and they write the reference. I have never seen one that was anything but positive, whereas the ones that I have seen that were not positive, have tended to be where the candidate was not privy to the reference.

Q. It's clearly just based on your own experience?

A. Yes.

[70] In considering this evidence I must be sensitive to the possibility that it reflects "special pleading" (see Taylor v. Anderton, supra) and that it is not necessary to accept it simply because there is no evidence to the contrary. With these cautions in mind, I do conclude, as did Pitt J., that this evidence is persuasive and that it should be accepted. The second condition in Wigmore is, therefore, satisfied.

[71] I turn to Wigmore's fourth condition which, for convenience, I shall repeat:

(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

(Emphasis in the original text)

[72] I shall consider first the injury that would inure to the relation by the disclosure of the communications. The relation is that between potential reference-givers and the hospital board, the hirer of the hospital's medical staff. I have concluded, with respect to the third Wigmore condition, that this is a relation which, in the opinion of the community, should be sedulously fostered. I understand the community in this context to mean the general public, i.e. all those who avail themselves of the services of public hospitals.

[73] I have little difficulty concluding that the members of the public would have a vital interest in the integrity and thoroughness of the methods hospital boards use in deciding whom to appoint to what positions on their medical staffs. The lives and health of members of the public are directly affected. On the evidence in the present case, I have earlier concluded that the element of confidentiality is essential to the effective maintenance of the relation between reference- givers and hospital boards.

[74] For these reasons, it is reasonable to conclude that any injury to the relationship flowing from a failure on the part of a hospital board to receive comprehensive and accurate information on applicants for appointments to the hospital staff would have a serious impact on the public interest.

[75] I turn now to the other element to be weighed in the application of the fourth Wigmore condition.

[76] It may be noted that this condition appears to assume that there is litigation afoot that may not be correctly determined for lack of relevant evidence, i.e. it involves the assertion of the privilege in the course of a trial. This is not quite our situation. The basic question in the present case is whether the appellant should be put in a position, as a result of a successful discovery proceeding, to commence a proceeding against the reference-givers and, then, to have a correct disposition of that proceeding.

[77] I accept that access to the courts is a fundamental right in our legal system. I would not want to compare it in general terms with a litigant's right of access to evidence in existing proceedings, with a view to determining which is deserving of greater protection. On the facts of this case, I have already concluded that the appellant's claim has sufficient bona fides to escape being dismissed at the threshold level. Through no fault of the appellant, of course, his case is not as strong as that of the applicant in Norwich Pharmacal, where it was reasonably clear that the applicant's patent rights had been infringed and that all that stood in the way of the applicant asserting its rights was lack of knowledge of the infringer's identity.

[78] The present case has an additional complexity. Even if it were assumed that the letters were defamatory, there would likely be defences of justification and qualified privilege to be met and overcome before the appellant could ultimately succeed.

[79] The appellant's main interest, in the correct disposal of the litigation he contemplates, is the clearing of his name and to "become eligible to obtain an active staff appointment at the respondent hospital". I have earlier in these reasons set forth a part of the appellant's affidavit in which this quotation appears. The affidavit was sworn five months after the sending of the appellant's lawyer's letter to Humber in which he said that the appellant's desire to have the reference letters produced "had absolutely nothing whatever to do with Dr. Straka's locum tenens or medical staff privileges at the Humber River Regional Hospital". Accordingly, it may be taken that now the appellant has an interest in the active staff appointment at Humber.

[80] I think that it is at this point that the appellant's rights under the Public Hospitals Act, ss. 37-39 and 41-43 are a relevant consideration. Under the Act the appellant has the right to have his entitlement to appointment to Humber staff decided by Humber's board or, on appeal, by the Health Professions Appeal and Review Board or, on further appeal, by the Divisional Court. Appeals to the Divisional Court are wide open. They may be based on questions of law or fact, or both, and the court has all the powers of the tribunal below.

[81] The statutory procedure affords the appellant a straightforward route to clearing his name with the very organization that is in possession of the critical letters. As I have indicated earlier in these reasons, it may be that in this proceeding the letters would not be produced before or at the hearings before the hospital board or the appeal board. The appellant, however, would have reasonable disclosure of the case against him before the hearing and Humber's medical advisory committee would be obliged to submit its case against the appellant at the hearing. This might necessarily involve the reference-givers being required to testify and subjected to cross-examination. This would not involve any breach of confidence or privilege respecting the correspondence but, if it should, I would think that the claim of privilege would be answered by the policy of the Public Hospitals Act procedure.

[82] The existence of the statutory procedure, which is open to the appellant, is a relevant factor to take into account in considering what weight should be given to the benefit of the correct disposal of the litigation that the appellant contemplates in the present proceeding. This litigation is somewhat complex and necessarily involves the overriding of an asserted privilege. Its benefit, when weighed in the scales against the injury to the public interest sought to be protected by the privilege, is weakened by the fact that the contemplated litigation is not the only way in which the appellant can achieve his basic purpose. The only possible benefit which the appellant would not have by following the statutory route would be the recovery of damages.

[83] When the benefit of the correct disposal of the litigation is considered in this wider context, I have little difficulty in concluding that the injury to the relation, i.e. to the peer review process, would clearly exceed the benefit of the correct disposal of the litigation.

[84] Accordingly, in my view, the fourth Wigmore condition has been satisfied and, in result, the claim for privilege with respect to the letters is established.

Disposition

[85] For the foregoing reasons, I would dismiss this appeal with costs.

Order accordingly.

Notes

• The appellant submitted in his factum that Pitt J. erred in ordering the appellant to pay costs to the respondents. This submission was not made on the hearing before us. The costs issue was not mentioned in the notice of appeal, nor was leave to appeal sought sought with respect to costs. There is no indication that Pitt J. erred in the exercise of his discretion on this subject and I shall not deal with it in these reasons.