Court File and Parties

Date: December 2, 2019

Court File Number: 525/19

Ontario Court of Justice 7755 Hurontario Street, Brampton, Ontario

Endorsement: Justice L.S. Parent

Applicant: Janice Jackson Counsel: Fasiha Khan

Respondent: Nathaniel Dixon Counsel: Gerard J. Michaud

Nature of the Proceedings

[1] On November 28, 2019, I heard a motion, brought on behalf of the Respondent, Mr. Dixon, seeking the release of third party medical records from two medical practitioners and an optical company franchise.

[2] As noted in my endorsement dated November 28, 2019, preliminary issues were addressed prior to the hearing of the motion. The result of these discussions was that the motion proceeded only on the request for medical records in the possession of the two medical practitioners, namely Dr. Allan Lawrence Russell and Dr. Marjan Dolatshahi.

[3] As noted in my endorsement, Dr. Russell and Dr. Dolatshahi were paged prior to the hearing of the motion. They did not respond nor did a representative attend on their behalf. Neither Dr. Russell or Dr. Dolatshahi filed materials in response to the motion.

[4] The motion proceeded with submissions limited to the parties. My decision was reserved.

Position of the Parties

[5] Mr. Dixon's Notice of Motion located at Tab 18 of Volume 8 of the Continuing Record seeks an order requiring the named medical practitioners to release to both parties a copy of all medical records regarding Ms. Jackson from January 1, 2017 to present. The order sought also includes terms of production.

[6] In support of his position, Mr. Dixon has filed two affidavits sworn October 17, 2019 and November 14, 2019 located at Tabs 19 and 17 respectively of Volume 2 of the Continuing Record.

[7] Counsel for Mr. Dixon submissions in support of his client's request can be summarized as follows, namely that this disclosure is needed as it is:

a) relevant to the issues of custody and access before the court and therefore not speculative in nature or a fishing expedition;

b) in considering the proportionality factor required in family law matters, the criteria is satisfied given that the costs for the reproduction of the records would be nil if provided electronically or if in hard copy, at a proposed cost per page paid for by Mr. Dixon; and

c) that in cases involving the issues of custody and access, the privacy rights of an individual must be taken within the context of "best interests" of the child subject of the proceedings.

[8] Ms. Jackson's position is that this court should not grant the motion for production of records. Ms. Jackson has filed, in support of her position, an affidavit sworn November 6, 2019. In addition to this affidavit, counsel for Ms. Jackson has filed a Book of Authorities.

[9] Counsel for Ms. Jackson submissions in support of her client's opposition to the motion can be summarized as follows, namely that:

a) The request for disclosure is a fishing expedition by Mr. Dixon as the request for disclosure is very broad;

b) This request is a further example of the pattern of abuse Mr. Dixon has exposed Ms. Jackson to since their separation; and

c) Ms. Jackson has provided a detailed letter from Dr. Russell therefore disclosure of his medical records and Dr. Dolatshahi's records are not needed.

Legislative Framework

[10] There is no dispute between the parties that this motion is brought pursuant to Rule 19(11) of the Family Law Rules which provides as follows:

"If a document is in a non-party's control, or is available only to the non-party, and is not protected by a legal privilege, and it would be unfair to a party to go on with the case without the document, the court may, on motion with notice served on every party and served on the non-party by special service,

(a) order the non-party to let the party examine the document and to supply the party with a copy at the legal aid rate; and

(b) order that a copy be prepared and used for all purposes of the case instead of the original."

[11] This production motion was required given the absence of Ms. Jackson's consent to the release of these specific medical records.

Analysis

[12] It is not disputed that full and complete disclosure in family law matters is required under the FLR.

[13] In determining whether to compel the production of documents outside of a party's control and in the absence of their consent, the request for the production must be considered within the context of why the moving party seeks the disclosure given the privacy concerns at play.

[14] Counsel for Mr. Dixon submits that the court must also consider the issues of proportionality and relevance. Relevance of documents in litigation is important however this is not the test under Rule 19(11). The legal threshold, in the absence of privilege, is clear, namely that it must be "unfair" for the moving party to proceed without the information.

[15] The stage of the litigation is also important.

[16] As stated in the decision of Kent v. Kent, 2010 NLCA 53, the disclosure of documents in the "discovery stage" or initial stages of the litigation serves a different purpose than such a request prior to the trial. The production of documents at the earlier stage is to assist the party seeking the production in the presentation of their case.

[17] In its decision in Bailey v. Bailey, 2012 ONSC 2486, the Court set out the six criteria to be satisfied in order for the production of third party records to be ordered. The six criteria are as follows:

a) The documents are in a non-party's control;

b) The documents are available only to the non-party;

c) The documents are not protected by legal privilege;

d) It would be unfair for the party seeking the disclosure to proceed without the information sought;

e) The documents sought are relevant and necessary; and

f) Notice is provided to the non-party.

[18] Rule 19(11) therefore establishes a two-part test for production of records. To be successful, Mr. Dixon, as the moving party, must show:

1. that it would be unfair for him to proceed with his claims without the medical records being requested; and

2. these medical records are not privileged.

[19] Counsel on behalf of the parties agree that criteria (a), (b) and (f), as stated in Bailey, have been met.

[20] There is a dispute between the parties as to whether (c), (d) and (e) are satisfied. This dispute results in counsel for Ms. Jackson opposing the request for production on the basis that the documents are privileged and if not, the absence of production does not create unfairness to Mr. Dixon. Counsel for Mr. Dixon disputes this position.

Issue #1 – Are the Medical Records of Dr. Russell and/or Dr. Dolatshahi Privileged?

[21] The leading decision regarding the release of medical and/or therapeutic records is A.M. v. Ryan, [1997] 1 S.C.R. 157.

[22] In Ryan, the court considered privilege and the right of production of medical records in a civil action for damages by a victim of sexual assault against the perpetrator who sought production of her new psychiatrist's reports and notes.

[23] In her decision, Chief Justice McLachlin stated the following:

"1) Everyone owes a duty to provide evidence relevant to a matter before the court so that truth may be determined.

2. Privilege is an exception to the above duty if it can be shown that the privilege is required by a public good which supersedes the general principle that all relevant evidence be produced in order to ascertain truth.

3. The common law will recognize a right of privilege, as reflected in the Wigmore test.

4. The law of privilege must evolve to reflect the social and legal realities of the time and must keep Charter values in mind.

5. Charter values under the fourth part of the test include privacy, equal treatment and benefit of the law as per s. 8 and s. 15 of the Charter.

6. Even where there are compelling reasons to protect the communication from disclosure, it must be shown that the benefit to maintaining the privilege, however great that might seem, in fact outweighs correct disposition of litigation. The balancing of these two elements is an exercise of common sense and good judgment.

7. If a court determines that there should be production of privileged documents in order to get at the truth, the extent of production should consist of what is necessary to prevent that result. The need to get at the truth does not automatically mean that there must be full disclosure. Disclosure of some but not all and restricting who may see the documents are acceptable tools in the balancing of these two competing interests.

8. A judge may conclude that psychiatrist-patient records are privileged in appropriate circumstances. Once the first three Wigmore requirements are met and a compelling prima facie case is made for protection, the task and focus will then proceed to the balancing under the fourth head.

9. Fishing expeditions are inappropriate where there is a compelling privacy interest at stake.

10. A civil litigant must be prepared to accept some intrusion on her/his privacy to the extent it is necessary to get to the truth but civil litigation is not a waiver of privacy, nor a license to probe into private matters unnecessary to determine the litigation.

11. A judge may, but need not, examine the documents in issue in deciding whether or not to order production."

[24] Counsel on behalf of Ms. Jackson submits that privilege attaches to the documents in control of the medical practitioners involved in her care due to the relationship she has with them as her treating physicians.

[25] The relationship between Ms. Jackson and her doctors is considered "case-by-case" privilege due to the relationship between them. This was not disputed by either party through submissions by counsel.

[26] To determine if evidence is protected by a case-by-case privilege there are four factors for the court to consider. This is known as the Wigmore test, namely:

1. The communication must originate in a confidence that they will not be disclosed;

2. The element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;

3. The relation must be one which in the opinion of the community ought to be sedulously fostered; and

4. The 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 the action.

[27] The Wigmore criteria provides a general framework only. The criteria guide the court in its determination as to whether to require production within broad reaching policy considerations affecting all persons while balancing the requirements of fact-finding and full disclosure and privacy of the individual in the specific case before the court and who is the subject of the records sought. Simply put, the analysis is focused on the circumstances of the litigation.

[28] This approach was adopted in the decision of Brown v. Capital Health Authority, 2006 NSSC 348. At paragraph 79, the Court commented as follows: "… privilege is not designed to facilitate truth finding, but rather to withhold probative evidence for public policy or social value reasons."

[29] Counsel for Ms. Jackson has provided the decision of Cojbasic v. Cojbasic, 2008 ONSC 8256. At paragraph 16, Justice Mackinnon states as follows:

"There is no blanket privilege for all medical records. Yet, it is well known that a fishing expedition is not permitted and orders for production of medical records are not made as a matter of course. Before production will be ordered, there must be evidence that connects the contents of the record to an issue in the case. Simply by making a claim for custody the entire medical history of a parent does not become relevant."

[30] In this case, counsel on behalf of both parties did not fully address the Wigmore criteria. Submissions primarily focused on the fourth criteria of the Wigmore test as this was the criteria in dispute between the parties.

[31] Chief Justice McLachlin, at paragraphs 33 and 37 of her decision in Ryan, stated as follows on the fourth criteria of the Wigmore test:

"It follows that if the court considering a claim for privilege determines that a particular document or class of documents must be produced to get at the truth and prevent an unjust verdict, it must permit production to the extent required to avoid that result. On the other hand, the need to get at the truth and avoid injustice does not automatically negate the possibility of production from full disclosure."

"Fishing expeditions are not appropriate where there is a compelling privacy interest at stake, even at the discovery stage."

[32] Mr. Dixon has been provided with a brief letter dated October 1, 2019 and a detailed report dated October 24, 2019 from Dr. Russell. It is not disputed that these reports were only provided after the filing of the production motion by Mr. Dixon.

[33] Mr. Dixon has plead, in his Answer filed September 4, 2019, that he seeks an order of sole custody. In support of his claim, he states at paragraph 6.2 that Ms. Jackson has "… medical conditions and addictions that put the Child at risk in her care." Mr. Dixon goes on to state at paragraph 6.7 the following:

"The Applicant (mother) has fibromyalgia and brain lesson (sic). She makes very heavy use of pain killers and drinks alcohol… Her symptoms include:

a) constant pain;

b) losing eyesight;

c) dizzy spells;

d) memory problems;

e) angry and mood swings;

f) depression and suicidal thoughts;

g) tiredness (trouble getting up in the morning and doing things."

[34] A review of Dr. Russell's report dated October 24, 2019 specifically addresses the medical conditions highlighted by Mr. Dixon in his Answer and the impacts of any symptoms on Ms. Jackson. Counsel on behalf of Mr. Dixon acknowledged in submissions that this letter is detailed.

[35] Given this, I see no reason to require anything further from Ms. Jackson's treating physician, Dr. Russell, by way of a production order of his entire file at this stage of the proceedings. Ms. Jackson's diagnosis of fibromyalgia, symptoms and pain management treatment is detailed in the reports provided.

[36] As stated by Mackinnon, J. at paragraph 19 of her decision in Cojbasic:

"… if the Respondent does choose to call a medical practitioner to testify with respect to his current mental health status and the therapy he is receiving, then the Applicant will be entitled to the notes and records from that practitioner and if there was any particular claim for confidentiality made, the trial judge could deal with that on a voir dire during the trial."

[37] This right would also be afforded to Mr. Dixon should Ms. Jackson choose to call Dr. Russell regarding her current diagnosis of fibromyalgia and pain management treatment in support of her parenting plan.

[38] For these reasons, I find that the fourth criteria of the Wigmore test has not been met by Mr. Dixon. His request for the release of Dr. Russell's entire medical file is therefore denied as I find these records to be privileged.

[39] The motion further requests the release of records from Dr. Dolatshahi.

[40] Counsel in his submissions conceded that Mr. Dixon is not clear as to the role of Dr. Dolatshahi. He submitted that Mr. Dixon believes that Ms. Jackson saw Dr. Dolatshahi for headaches.

[41] In compliance with Justice Khemani's order dated October 2, 2019 and granted on consent of the parties, Ms. Jackson has provided confirmation that on October 4, 2019, she provided, through counsel, the list of physicians seen by her between January 1, 2019 to present. This list, which was attached as Exhibit "C" to her affidavit sworn November 6, 2019, noted "Dr. Marjan Dolatshahi, Neurodiagnostic Clinic".

[42] In this case, the extent of the involvement of Dr. Dolatshahi with Ms. Jackson is not known by Mr. Dixon.

[43] I disagree with counsel for Ms. Jackson that the letters provided by Dr. Russell detail the involvement of Dr. Dolatshahi. I further disagree with counsel for Ms. Jackson that the MRI reports attached by Dr. Russell to his October 24, 2019 letter fully address the issue of headaches. Dr. Dolatshahi is also not the author of the MRI reports.

[44] In Cojbasic, Justice Mackinnon, as an alternative to producing the full records, ordered the party to provide a Statement of Agreed Facts to include dates, issues, diagnosis and treatment.

[45] A similar approach was also adopted by the court in T. (R.C.) v. T. (M.T.), [1997] B.C.J. No. 1239 (S.C.) where the court declined to order production of the notes and records of a parent's drug treatment facility preferring in the alternative to order a report from the facility.

[46] Given these circumstances and prior to requiring the release of Dr. Dolatshahi's entire medical file involving Ms. Jackson, I find that the approach adopted by Mackinnon, J. at paragraph 20 of her decision in Cojbasic, namely an alternative to the release of the entire medical records in the face of uncertainty as to the involvement of medical practitioners, is appropriate in this case.

[47] For these reasons, Ms. Jackson will be required, at her costs, to obtain from Dr. Dolatshahi, within forty-five (45) days of the date of this order, a letter setting out in detail her involvement with Ms. Jackson including dates, issues, diagnosis and recommended treatment. In my view, this approach provides a proper balancing of Ms. Jackson's privacy and the need for the court to get to the truth of the potential impact of her fibromyalgia and symptoms on her ability to parent her child.

Issue #2 – Threshold of Unfairness

[48] Given my determination on the criteria of privilege, it is not necessary for me to address whether the threshold of unfairness as set out in Rule 19(11) FLR has been met by Mr. Dixon.

[49] Although not required, I wish to provide the parties with my findings given that the focus of submissions and the evidence of the parties was on this issue.

[50] A review of Mr. Dixon's Answer, as detailed above, clearly establishes that he is aware of the medical issues of Ms. Jackson. Further disclosure is not required for him to pursue his claim for sole custody on the basis that Ms. Jackson's medical issues result in his child being at risk in her care as he has plead as such.

[51] Mr. Dixon is also in possession of a letter by the Peel Children's Aid Society dated October 30, 2019, which is attached as Exhibit "E" of Ms. Jackson's November 6, 2019 affidavit, concluding that they "… have inquired into Mr. Dixon's concerns and found no indication that Ms. Jackson's prescribed medication, health issue or temper have impacted on [the child's] safety at this time."

[52] Mr. Dixon has indicated, through counsel, that he intends to pursue his claim for sole custody with or without the release of the medical records he is seeking in this motion and with the disclosure he has been provided.

[53] For these reasons, I find that Mr. Dixon did not meet the threshold of unfairness as it relates to his request for production as requested in his Notice of Motion.

Order

[54] For the reasons stated above, the following order is granted:

a) the motion for production of records brought by the Respondent, Mr. Dixon, is denied; and

b) Ms. Jackson shall, within 45 days of this order, provide, through counsel, to Mr. Dixon, through counsel, a letter from Dr. Dolatshahi setting out in detail her involvement with Ms. Jackson including dates, issues, diagnosis and recommended treatment. Should Dr. Dolatshahi not be able to provide this letter within this timeframe, and it is not extended by the parties' consent or the court, or refuses to provide a letter, a further motion for the disclosure of her medical records may be requested to be scheduled by Mr. Dixon.

Costs

[55] If the parties are unable to come to an agreement on this issue, timelines for written submissions will be discussed at the next court appearance scheduled for December 10, 2019 at 10:00 a.m. in Courtroom #202.

Justice L.S. Parent