Frenette v. Metropolitan Life Insurance Co., 1992 CanLII 85 (SCC), [1992] 1 SCR 647

Frenette v. Metropolitan Life Insurance Co., 1992 CanLII 85 (SCC), [1992] 1 SCR 647

Metropolitan Life Insurance Company Appellant

v.

Raymond Frenette Respondent

and

Hôpital Jean‑Talon Mis en cause

Indexed as: Frenette v. Metropolitan Life Insurance Co.

File No.: 21765.

1991: November 6; 1992: March 12.

Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Gonthier and Cory JJ.

on appeal from the court of appeal for quebec

Civil procedure ‑‑ Production of documents ‑‑ Medical records ‑‑ Form signed by insured at time of life insurance application authorizing insurer to have access to his medical records "for purposes of risk assessment and loss analysis" ‑‑ Insurer investigating cause of insured's death ‑‑ Hospital refusing insurer access to insured's medical records ‑‑ Application of art. 402 C.C.P. ‑‑ Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 5, 9 ‑‑ Act Respecting Health Services and Social Services, R.S.Q., c. S‑5, ss. 7, 8.

Insurance ‑‑ Life insurance ‑‑ Interpretation of contract ‑‑ Insurer's right of access to insured's medical records ‑‑ Form signed by insured at time of life insurance application authorizing insurer to have access to his medical records "for purposes of risk assessment and loss analysis" ‑‑ Insurer investigating cause of insured's death ‑‑ Whether insured waived right to confidentiality of medical records ‑‑ If so, whether hospital should give insurer unrestricted access to insured's medical records ‑‑ Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 5, 9 ‑‑ Act Respecting Health Services and Social Services, R.S.Q., c. S‑5, ss. 7, 8.

Hospitals ‑‑ Medical records ‑‑ Confidentiality ‑‑ Form signed by insured at time of life insurance application authorizing insurer to have access to his medical records "for purposes of risk assessment and loss analysis" ‑‑ Insurer investigating cause of insured's death ‑‑ Whether hospital should give insurer access to insured's medical records ‑‑ Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 5, 9 ‑‑ Act Respecting Health Services and Social Services, R.S.Q., c. S‑5, ss. 7, 8.

The appellant insurer issued a policy on the life of the respondent's son in 1983. Under the policy, on the death of the insured a basic indemnity of $10,000 was to be paid to the respondent ‑‑ the beneficiary of the policy. A rider also provided a supplementary indemnity for accidental death; death resulting from suicide and death from a fatal reaction to unprescribed drugs were expressly excluded risks. At the time he applied for the policy, the insured signed a standard form authorizing the insurer to have access to his medical records "for the purposes of risk assessment and loss analysis". In July 1986, the insured's body was found in a river. The autopsy revealed that the probable cause of death was asphyxiation as a result of drowning but, given the advanced state of decomposition of the insured's body, no chemical tests were performed on the insured's tissues to detect traces of alcohol or toxins. The insurer paid the basic indemnity but refused to pay the supplementary indemnity for accidental death, claiming that the drowning was not accidental but a suicide. These beliefs were based on information gathered from the medical records the insurer had been able to obtain during its investigation. These records indicated that, two days before his disappearance, the insured had been rushed to the emergency ward of the mis en cause hospital possibly for a drug overdose. The respondent took action for the recovery of the supplementary indemnity and refused to authorize the insurer to review the insured's medical records. Despite the insured's 1983 authorization, the hospital also refused to release the medical records. As a result, the insurer brought a motion under arts. 20, 400 and 402 C.C.P. seeking an order compelling the hospital to allow it to examine the entire medical records of the insured. The Court of Quebec dismissed the motion, holding that neither the waiver of the right to non‑disclosure of medical information contained in the policy nor the provisions of the Code of Civil Procedure gave the insurer a right of access to the medical records of its insured for the purpose of its investigation into the circumstances surrounding his death. The majority of the Court of Appeal affirmed the judgment.

Held: The appeal should be allowed.

The authorization signed by the insured in the policy constituted a waiver of his right to the secrecy and confidentiality of his medical and hospital records both for the present and for the future. The terms "for the purposes of risk assessment and loss analysis" in the medical release are unambiguous and do not require interpretation. In choosing to employ the two different terms, "risk" and "loss", the parties unequivocally intended the waiver to apply to two distinct time frames in the life of an insurance policy: (1) the initial investigation required for the formation of the insurance contract; and (2) the investigation which becomes necessary to study the claim of a beneficiary to the supplementary indemnity for accidental death. This conclusion is supported by the ordinary meaning of the words as well as by the meaning given to them by the provisions of the Civil Code in its section on insurance.

A patient's right to the confidentiality of his medical records is a relative right which he may waive without restriction as to scope or time. Various legislative provisions, including s. 9 of the Charter of Human Rights and Freedoms and ss. 7 and 8 of An Act Respecting Health Services and Social Services, permit access to medical records in certain circumstances. One such case is where a beneficiary has given his consent to the release of his hospital records. Where a clear waiver has been given by the holder of the right to confidentiality, the question of the right to privacy in s. 5 of the Quebec Charter is no longer in issue since the holder of the right has, of his own accord, put aside his privacy under the terms and conditions set by him. Once an express or implied authorization has been found, health care facilities must release the information according to the terms of the authorization. In the present case, the hospital was not justified in denying the insurer access to the insured's medical records. The authorization signed by the insured at the time he applied for life insurance clearly gave his insurer an unrestricted right of access to his medical records "for the purposes of risk assessment and loss analysis". No restriction as to the scope of information contained in the records was mentioned by the insured. Thus, the insurer was entitled to have access to the insured's complete medical records provided these records were needed for the purpose stated in the authorization.

Where a health care establishment refuses to release the records requested despite a valid express or implied authorization, or a legislative provision allowing such access, a party may request an order of the court, based on art. 402 C.C.P., compelling the establishment to release such records. In the face of a clear express or implied authorization from the holder of the right of confidentiality, the courts have no discretion and must order the establishment to respect the terms of the authorization. Given the insured's authorization in this case, the court had no discretion but to grant the insurer's request for access to the insured's complete medical records "for the purposes of risk assessment and loss analysis".

However, even if there had been no waiver of the right to confidentiality, or had the authorization not been applicable to the investigation into the cause of death of the insured, the insurer was still entitled, under art. 402 C.C.P., to have access to the insured's complete medical records. Presented with such a motion under these circumstances, a court must exercise its discretion to grant access to medical records according to the degree of relevance and importance of the information sought relative to the issue between the parties. In exercising that discretion, a court must weigh the diverse interests in conflict ‑‑ the interests of justice against the right of privacy and confidentiality of an individual. Here, the cause of the insured's death is the central issue of the case. Access to the information sought becomes inextricably linked to the ability to prepare a full defence. Moreover, these records provide the best evidence or pertain most directly to the cause of the insured's death. As for the scope of access, the complete records of the insured held by the hospital are relevant and should be given to the insurer. Access to the insured's complete medical records would not constitute an unjustified intrusion into his private life. These records covered only a brief period of the insured's life. The nature of the claim puts into question a whole series of events which may have led to the questionable cause of death and renders these medical records crucial to the issue being litigated. In these circumstances, access to these records surely does not constitute a fishing expedition.

Cases Cited

Referred to: Jones v. National Coal Board, [1957] 2 Q.B. 55; Caisse populaire des Deux Rives v. Société mutuelle d'assurance contre l'incendie de la Vallée du Richelieu, 1990 91 (SCC), [1990] 2 S.C.R. 995; Consolidated‑Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co., 1979 10 (SCC), [1980] 1 S.C.R. 888; Beischel v. Mutual of Omaha Insurance Co. (1991), 1991 5900 (AB KB), 82 Alta. L.R. (2d) 103; Boivin v. Mutuelle d'Omaha (La), Cie d'assurance, Sup. Ct. Roberval, No. 155‑05‑000065‑897, February 22, 1990, unreported; Trempe v. Dow Chemical of Canada Ltd., [1980] C.A. 571; Cordeau v. Cordeau, 1984 2837 (QC CA), [1984] R.D.J. 201; Paillé v. Lorcon Inc., 1986 3823 (QC CA), [1986] R.D.J. 278; Rousseau (Succession de) v. Groupe Desjardins (Le), Assurances générales, 1989 459 (QC CA), [1989] R.J.Q. 785; Société centrale d'hypothèque et de logement v. Pagé, [1977] C.A. 560; Audet v. Hôtel‑Dieu de Salaberry de Valleyfield, [1974] R.P. 236; Lindsay v. Henri Laflamme Inc., J.E. 89‑760; Rothpan v. 123870 Canada Inc., J.E. 89‑1111; Coffey v. Tran, 1989 870 (QC CA), J.E. 91‑223; Goulet v. Lussier, [1989] R.J.Q. 2085; Taxi Newman Lafleur v. Cie d'assurances Provinces‑Unies, [1991] R.R.A. 411; Impériale (L'), Cie d'assurance‑vie v. Succession de Roy, 1990 2695 (QC CA), [1990] R.J.Q. 2468; Robitaille v. Cie d'assurance C.N.A., J.E. 79‑565; Laprise v. Bonneau, 1984 2873 (QC CA), [1985] C.A. 9; Hay v. University of Alberta Hospital (1990), 1990 2619 (AB KB), 69 D.L.R. (4th) 755; Cook v. Ip (1985), 1985 163 (ON CA), 52 O.R. 289; Furlano v. Calarco (1987), 1987 4240 (ON SC), 60 O.R. (2d) 451; Tamssot v. Belgrano (1987), 1987 4241 (ON SC), 59 O.R. (2d) 57; Dufault v. Stevens (1978), 1978 366 (BC CA), 6 B.C.L.R. 199; Halliday v. McCulloch (1986), 1986 1004 (BC CA), 1 B.C.L.R. (2d) 194.

Statutes and Regulations Cited

Act Respecting Health Services and Social Services, R.S.Q., c. S‑5, ss. 1(a), 7, 8.

British Columbia Supreme Court Rules, r. 26(11).

Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 5, 9, 52, 53.

Civil Code of Lower Canada, arts. 1019, 1056, 1204, 2468, 2499, 2528.

Code of Civil Procedure, R.S.Q., c. C‑25, arts. 2, 20, 399, 399.1, 400, 402.

Medical Act, R.S.Q., c. M‑9, s. 42.

Ontario Rules of Civil Procedure, r. 30.10.

Authors Cited

Bergeron, Jean‑Guy. Les contrats d'assurances (terrestre), t. 1. Sherbrooke: Éditions SEM Inc., 1989.

Bernardot, Alain et Robert P. Kouri. La responsabilité civile médicale. Sherbrooke: Éditions Revue de droit Université de Sherbrooke, 1980.

Birds, John. Modern Insurance Law, 2nd ed. London: Sweet & Maxwell, 1988.

Ducharme, Léo. "Le secret médical et l'article 9 de la Charte des droits et libertés de la personne" (1984), 44 R. du B. 955.

Knoppers, Bartha. "Confidentiality and Accessibility of Medical Information: A Comparative Analysis" (1982), 12 R.D.U.S. 395.

Lajoie, Andrée, Patrick A. Molinari et Jean‑Marie Auby. Traité de droit de la santé et des services sociaux. Montréal: Presses de l'Université de Montréal, 1981.

McLachlin, Beverley M. and James P. Taylor. British Columbia Practice, vol. 1, 2nd ed. Vancouver: Butterworths, 1991 (loose‑leaf).

Molot, Henry L. "Non‑Disclosure of Evidence, Adverse Inferences and the Court's Search for Truth" (1971), 10 Alta. L. Rev. 45.

Morissette, Yves‑Marie et Daniel W. Shuman. "Le secret professionnel au Québec: une hydre à trente‑neuf têtes rôde dans le droit de la preuve" (1984), 25 C. de D. 501.

Norwood, David. Life Insurance Law in Canada. Toronto: Richard de Boo Ltd., 1977.

Quebec. Legislative Assembly of Quebec. Bill 20: Code of Civil Procedure. Québec: Queen's Printer, 1965.

Royer, Jean‑Claude. La preuve civile. Cowansville: Éditions Yvon Blais Inc., 1987.

Solus, Henry et Roger Perrot. Droit judiciaire privé, t. 1. Paris: Sirey, 1961.

Sopinka, John and Sidney N. Lederman. The Law of Evidence in Civil Cases. Toronto: Butterworths, 1974.

Watt, Alastair M. "Le secret professionnel" (1945), 5 R. du B. 189.

Wigmore, John Henry. Evidence in Trials at Common Law, vol. 8. Revised by John T. McNaughton. Boston: Little, Brown & Co., 1961.

APPEAL from a judgment of the Quebec Court of Appeal, 1989 1179 (QC CA), [1990] R.J.Q. 62, 34 Q.A.C. 143, affirming a judgment of the Court of Quebec. Appeal allowed.

Marzia Frascadore and Marc‑André Blanchard, for the appellant.

Jacques Marquis, for the respondent.

The judgment of the Court was delivered by

//L'Heureux-Dubé J.//

L'Heureux‑Dubé J. -- This appeal raises the question of the right of access of life insurance companies to the hospital records of an insured in the course of an investigation into the validity of a claim for indemnity, in this instance, a supplementary indemnity for accidental death. The resolution of this issue rests upon the wording of the insurance contract, particularly the authorization, signed by the insured, to release medical information, interpreted in the context of the [Quebec ]Charter of Human Rights and Freedoms, R.S.Q., c. C‑12 (the "Charter"), and the procedural scheme embodied in the [Quebec ]Code of Civil Procedure, R.S.Q., c. C‑25.

Facts

The appellant insurance company issued an insurance policy on the life of Patrick Frenette, the respondent's son, on November 10, 1983. According to the terms of the policy, on the death of the insured a basic indemnity of $10,000 was to be paid to the beneficiary of the policy. Where the cause of death was accidental, a rider incorporated into the policy provided a supplementary indemnity equal to or double the amount of the basic indemnity. A number of exclusions contained in the rider, however, limited entitlement to this supplementary indemnity; in particular, death resulting from suicide and death from a fatal reaction to unprescribed drugs were expressly excluded risks. At the time he applied for the insurance policy on October 27, 1983, the insured signed a standard form authorizing the appellant insurer to have access to his medical records "[a]ux fins d'appréciation des risques et d'étude des sinistres" ([translation] "[f]or the purposes of risk assessment and loss analysis").

The insured was last seen alive by his mother on July 25, 1986. His body was found by a fisherman in Rivière des Prairies on July 29, 1986. In the coroner's estimation, the body may have been in the water for about five to seven days. An autopsy revealed that the probable cause of death was asphyxiation as a result of drowning. However, given the advanced state of decomposition of the insured's body, no chemical test could be performed on the tissues of the insured to detect traces of alcohol or toxins.

Upon receiving the claim filed by the respondent ‑‑ the policy's beneficiary ‑‑ the appellant paid the sum of $10,000, the basic indemnity under the policy. It refused, however, to pay the supplementary indemnity for accidental death, claiming that the drowning was not accidental but was actually a deliberate act on the part of the insured, i.e., a suicide. The respondent took action on April 22, 1987 in the Provincial Court, district of Montreal (now the Court of Quebec, Civil Division) for the recovery of the supplementary indemnity. In its defence, the appellant insurer reiterated its claim of suicide, and alleged, furthermore, that the insured had a history of chronic alcohol and drug abuse and, at various times in the past (in one instance, by an ingestion of sulphuric acid in 1985), had attempted to commit suicide.

These beliefs or suspicions were based on information the appellant insurer had gathered from the medical records it had been able to obtain during the course of its investigation into the cause of death of the insured. In fact, records of July 24, 1986 ‑‑ the eve of his disappearance ‑‑ indicated that the insured had been rushed to the emergency ward of the mis en cause, Hôpital Jean‑Talon, on the previous day, possibly for a drug overdose after having ingested about 25‑30 Halcion pills together with other drugs. In these circumstances, the appellant asked the respondent, the beneficiary of the insurance policy, to sign an authorization allowing it to review the entire medical record of the insured. The respondent refused. The appellant then presented the original authorization signed by the insured on October 27, 1983 to the hospital requesting the release of the insured's medical records. The hospital also refused, citing hospital practices which prohibited release of medical records except where such original authorizations were signed by the beneficiary of the services within 90 days of the request.

As a result, the appellant brought a motion under arts. 20, 400 and 402 of the [Quebec ]Code of Civil Procedure, seeking an order compelling the mis en cause hospital to allow it to examine and make copies of the entire medical records of the insured, as well as an order against the Régie de l'assurance‑maladie du Québec to release the list of doctors who had treated the insured in the past. (In the Court of Appeal as before us, the second demand was abandoned.) The appellant alleged that the denial of access to the hospital records of its insured would greatly impair its ability to prepare a full and complete defence. Specifically, paragraphs 8 and 9 of its motion read:

[translation] 8. It is in the interests of the defendant‑applicant to be able to examine the complete medical records of Patrick Frenette, and for the mis‑en‑cause to allow it to make copies thereof;

9. Without an order of this Court, the defendant‑applicant will be unable to exercise its right to make full answer and defence;

The Court of Quebec (Civil Division) held that neither the waiver of the right to non‑disclosure of medical information contained in the insurance contract nor the provisions of the [Quebec ]Code of Civil Procedure gave the appellant a right of access to the medical records of its insured for the purpose of its investigation into the circumstances surrounding his death. Consequently, it dismissed the motion. On November 15, 1989, a majority of the Court of Appeal, Malouf J.A. dissenting, dismissed the appellant's appeal: 1989 1179 (QC CA), [1990] R.J.Q. 62, 34 Q.A.C. 143.

Judgments

Court of Quebec (Civil Division)

With respect to the written authorization given by the insured to the appellant, the judge concluded that because it was signed prior to the issuing of the policy, it could not apply to medical consultations past that date:

[translation] One thing is certain in this regard: the authorization signed by the deceased cannot be taken into account. It is prior to the issuing of the policy and cannot cover subsequent medical consultations.

The judge also held that the Code of Civil Procedure could not be of help to the appellant since art. 400 C.C.P. is directly concerned with the communication of medical records and applies only in the two following situations. First, where the records sought are those of a person whose "examination has been authorized" under arts. 399 and 399.1; the insured being deceased, in this instance, the first hypothesis had to be excluded. Second, where a civil liability action has been instituted under art. 1056 of the Civil Code of Lower Canada (the "Civil Code") by the relatives of the deceased; clearly such was not the case either. Furthermore, the scope of art. 400 could not be extended by interpretation beyond these two situations as this would encroach upon the right to medical secrecy provided for in s. 42 of the Medical Act, R.S.Q., c. M‑9, and the right to the confidentiality of hospital records guaranteed by s. 7 of An Act Respecting Health Services and Social Services, R.S.Q., c. S‑5, two rights whose fundamental nature are recognized by the Charter in ss. 9, 52 and 53.

Finally, regarding arts. 20 and 402 C.C.P., the trial judge said:

[translation] The defendant's reliance on arts. 20 and 402 C.C.P. is also in vain. The former assumes a "right" for which the Code provides no method of exercise: here the ambient legislation denies the alleged right. Article 402 is a general rule, older than art. 400, to which the latter deliberately creates an exception. Accordingly, the maxim generalia specialibus non derogant means that it cannot be applied to the medical record held by a hospital.

Court of Appeal, 1989 1179 (QC CA), [1990] R.J.Q. 62

Baudouin J.A., for the majority, conceded that the authorization signed by the insured in the insurance policy constituted a waiver of his right to the secrecy and confidentiality of his medical and hospital records. However, in his view, the contractual waiver could be interpreted in two ways (at p. 65):

[translation] According to the first interpretation, this is a pre‑existing general waiver of professional secrecy which gives the insurer the right at the time of death, which may occur several years after the policy was issued, to examine all medical and hospital records that may have been prepared on its insured during his lifetime. According to the second interpretation, accepted by the trial judge, this clause on the contrary has a limited effect. The waiver, signed before the policy was issued, cannot be applied to medical consultations subsequent to the policy being issued. The words "loss analysis" should thus be understood as applying to losses already existing at the time of the proposal, which could accordingly affect the insurer's decision to agree or refuse to enter into the contract. [Italics in original.]

Concluding that the waiver was ambiguous, Baudouin J.A. applied the contra proferentem rule. He also questioned whether one could validly give an absolute or unlimited waiver of one's right to the secrecy of one's medical records ‑‑ both for the present and future ‑‑ in view of the fundamental nature of the right to professional secrecy recognized by s. 9 of the Charter. In his opinion, any waiver of such a fundamental right, when possible, must be [translation] "limited, specific and particularized" (p. 65).

With regard to the arguments as to process put forward by the appellant, Baudouin J.A. agreed with the Court of Quebec that such a request for medical records could not be granted under art. 400 C.C.P. since that article only contemplated the two distinct situations set out by the trial judge, neither of which were applicable in this instance. After reviewing the jurisprudence regarding art. 402 C.C.P., however, he expressed the view that the court had discretion to order the communication of medical records under that provision provided that the preconditions set out in art. 402 C.C.P. were respected. When dealing with medical records in the possession of physicians and hospitals, according to Baudouin J.A., the application of art. 402 C.C.P. is limited by two Charter provisions: s. 9 ‑‑ the right to non‑disclosure of confidential information -- and s. 5 ‑‑ the right to privacy. Consequently, two criteria must be weighed when considering the communication of medical records: first, the relevance of the documents sought with regard to the issues between the parties and, second, the protection of the confidentiality of medical records. The latter, being a relative right, may be waived either expressly or implicitly by the holder of that right. Baudouin J.A. stated that, while the jurisprudence had correctly held that an implicit waiver exists where the patient himself makes his physical or mental integrity a central issue ‑‑ such as in a medical malpractice case ‑‑ in the case at bar, a waiver of the right of non‑disclosure of all medical information could not be inferred from the authorization signed by the insured. To effect such a renunciation, in Baudouin J.A.'s opinion, the renunciation must be [translation] "clear, precise and limited" (p. 67). In this instance, not only was there no such renunciation, the order being sought by the appellant was much too broad. The scope of the information sought by the appellant was also, in his opinion, in clear violation of the insured's right to privacy guaranteed by s. 5 of the Charter and tantamount to a "fishing expedition". Consequently, he dismissed the appeal.

In concurring reasons, Gendreau J.A. was generally in agreement with Baudouin J.A. with respect to the interpretation of art. 402 C.C.P. He too ruled that medical records could be considered a document within the meaning of art. 402 provided they met the conditions set out in that provision. However, in his view, the order sought by the appellant in this case failed to meet these conditions and constituted a "fishing expedition". Accordingly, he observed at p. 73:

[translation] In short, though art. 402 C.C.P. may authorize access to documents held by third parties, it is not a blanket authorization to obtain communication of documents, especially when their secrecy is protected by law (ss. 7 and 8, An Act respecting health services and social services, R.S.Q., c. S‑5, and Medical Act, s. 42, R.S.Q., c. M‑9). In my opinion the appellant has not shown in the case at bar that it was entitled to the conclusion sought because, first, the complete medical record of its insured is a document relating to the issues within the meaning given to that expression by this Court, and second, he was entitled to have the confidentiality provisions enacted by the legislature overridden.

The contractual waiver signed by the insured, in his view, should receive restrictive interpretation as it was part of an adhesion contract (contrat d'adhésion) and involved privileged information whose confidentiality is expressly protected by legislation (the Medical Act, An Act Respecting Health Services and Social Services and the Charter). Using Baudouin J.A.'s words, Gendreau J.A. agreed that a valid renunciation of this privilege must be [translation] "clear, express and limited" (p. 74). Unlike Baudouin J.A., however, Gendreau J.A. found the terms "loss analysis" not to be ambiguous; to him the "loss" in question clearly referred to the death of the insured. However, in his view, such an authorization must be limited in its scope (at p. 74):

[translation] . . . with respect, I cannot agree that examining the causes of death embraces an investigation of the entire private life of an insured contained in his medical record. The living habits, even the misconduct, of an insured that may be assumed from reading a medical record are certainly not included in the authorization signed. . . .

Finally, while the insurer has an interest in the causes of death, it does not, in my opinion, have any concern with anything else. . . . It has no right to define itself what is and is not useful, pertinent and related to analysing the loss, after reading the entire record: it must provide details and proof to the court from which the authorization is requested, as to what it is entitled to have.

Consequently, he concurred with the result reached by Baudouin's J.A.

Malouf J.A., dissenting, would have allowed the appeal on the basis of the waiver contained in the insurance policy. In his view, the terms of the waiver were not ambiguous and the intention of the parties was clear: in using two distinct terms "risk" and "loss", they intended the waiver to be applicable to two distinct stages in the investigative process relating to an insurance policy: the initial stage of appraising the risk, setting the premium and deciding to undertake the risk, and the final stage of determining the liability of the insurer under the policy. This conclusion was supported by a literal interpretation of the terms of the waiver, the ordinary meaning of the words, as well as the meaning given to them by the provisions of the Civil Code in its section on insurance. Accordingly, the term "risk" refers to [translation] "a future event, certain or uncertain, which may occasion loss" in relation to facts existing at the time of the application for insurance, while the term "loss" can only refer to [translation] "the realization of the risk and the determination which the insurer may make at that time". In Malouf J.A.'s view, the fact that the waiver was signed at the time of the application for insurance does not affect the insurer's right of access to the medical records of the insured for its investigation of the circumstances surrounding the latter's death. By signing the authorization to release his medical records, the insured in effect waived his right to the confidentiality of his records in favour of the appellant insurer as of the date of signing. Such a waiver survived the death of the insured. In spite of this conclusion, however, Malouf J.A. found that the order sought by the appellant was too broad. Consequently, he would have allowed the appeal but would have limited access to only those documents which are clearly material to the liability of the insurer, i.e., those which [translation] "refer directly or indirectly to the events leading to his death" (p. 71).

Relevant Legislative Provisions

Charter of Human Rights and Freedoms, R.S.Q., c. C‑12

5. Every person has a right to respect for his private life.

6. Every person has a right to non‑disclosure of confidential information.

No person bound to professional secrecy by law and no priest or other minister of religion may, even in judicial proceedings, disclose confidential information revealed to him by reason of his position or profession, unless he is authorized to do so by the person who confided such information to him or by an express provision of law.

The tribunal must, ex officio, ensure that professional secrecy is respected.

52. No provision of any Act, even subsequent to the Charter, may derogate from sections 1 to 38, except so far as provided by those sections, unless such Act expressly states that it applies despite the Charter.

53. If any doubt arises in the interpretation of a provision of the Act, it shall be resolved in keeping with the intent of the Charter.

An Act Respecting Health Services and Social Services, R.S.Q., c. S‑5

1. In this Act . . . the following expressions and words mean:

(a) "establishment": a local community service centre, a hospital centre, a social service centre or a reception centre;

7. The medical records of the beneficiaries in an establishment shall be confidential. No person shall give or take verbal or written communication of them or otherwise have access to them, even for an inquiry, except with the express or implied consent of the beneficiary, or on the order of a court, or the coroner exercising his duties or in cases where an Act or regulation provides that such communication is necessary for its administration. The same shall apply to the records of beneficiaries receiving social services from an establishment.

A professional, however, may examine such records for study, teaching or research, notwithstanding subparagraph 5 of the second paragraph of section 59 of the Act respecting Access to documents held by public bodies and the Protection of personal information (chapter A‑2.1), with the permission of the director of professional services of the establishment which keeps such records or, failing such a director, with the permission of the director general, in accordance with the criteria established in section 125 of the said Act.

A beneficiary shall have the right to obtain that the establishment send to another establishment or to a physician or dentist designated by him, a copy, extract or abstract of his record, in accordance with the regulations.

Where an establishment provides a person with nominative information of a medical or social nature concerning him contained in his record, it shall, upon the request of the beneficiary, provide him with the assistance of a professional qualified to help him understand the information.

An establishment may refuse for the moment to give communication to a beneficiary of nominative information concerning him contained in his record where, in the opinion of his attending physician, it will likely be seriously prejudicial to his health. In such a case, the establishment, on the recommendation of the attending physician, shall determine when the information may be communicated and shall inform the beneficiary.

A beneficiary to whom an establishment refuses, for the moment, access to nominative information concerning him may, by way of a motion, apply to a judge of the Superior Court, of the Court of Québec, or to the Commission, for a review of the decision. He may also apply to the Commission d'accès à l'information.

Notwithstanding section 83 of the Act respecting Access to documents held by public bodies and the Protection of personal information, no beneficiary has the right to be informed of the existence or to take communication of nominative information concerning him given by a third person which is contained in his record, where knowledge of the existence thereof or the communication thereof would make it possible to identify the third person, unless that person has agreed in writing to the disclosure of such information and the source thereof to the recipient.

The seventh paragraph does not apply where the nominative information was furnished by a health or social services professional or by a member of the staff of a health or social services establishment.

8. The following may also take communication of the record of a beneficiary:

(a) the heirs and legal representatives of a beneficiary, including the mandatary of an incapable person of full age;

(b) (subparagraph repealed);

(c) the holder of parental authority in regard to the record of a minor;

(d) a person entitled to the payment of a benefit under a life insurance policy of a beneficiary.

Notwithstanding the first paragraph, the heirs of a recipient shall not be given communication of the record of that recipient, except for the purposes of exercising their rights as heirs.

Similarly, no person who is entitled to the payment of a benefit under an insurance policy on the life of a recipient may be given communication of the record of that recipient, except for the purposes of establishing his rights to the benefit.

A minor under fourteen years of age is not entitled, within the scope of an application to have information communicated to him or rectified, to be informed of the existence or take communication of nominative information of a medical or social nature concerning him contained in the record held by the establishment. This paragraph does not have the object of restricting normal communications between a beneficiary and a health or social services professional or a member of the staff of a health or social services establishment.

This section applies notwithstanding the first paragraph of section 94 of the Act respecting Access to documents held by public bodies and the Protection of personal information (chapter A‑2.1).

Medical Act, R.S.Q., c. M‑9

42. No physician may be compelled to declare what has been revealed to him in his professional character.

Code of Civil Procedure, R.S.Q., c. C‑25

400. A court may order a hospital to allow a party to examine and make copies of the medical record of the person whose examination has been authorized or whose death gave rise to an action under article 1056 of the Civil Code.

401. If, after defence filed, it appears from the record that a document relating to the issues between the parties is in the possession of a third party, he may, upon summons authorized by the court, be ordered to give communication of it to the parties, unless he shows cause why he should not do so.

The court may also, at any time after defence filed, order a party or a third person having in his possession any object relating to the issues between the parties to exhibit the same on such conditions, at such time and place and in such manner as it deems expedient.

Relevant Contractual Provisions

The authorization to release medical information found in the insurance contract reads as follows:

[translation] Authorization form and acknowledgment of receipt

For the purposes of risk assessment and loss analysis, I give permission to:

‑ any physician or other medical practitioner, hospital, clinic, other medical institution, consumer reports agency or medical information bureau to provide to Metropolitan medical information concerning me. Such information shall include findings made as a consequence of medical care, psychiatric or psychological care or examinations and surgical treatment in my case. . . . [Emphasis added.]

The rider providing a supplementary indemnity in case of accidental death is to the following effect:

[translation] Metropolitan Life Insurance Company

Rider: Warranty in the event of accidental death

This rider forms part of the

policy if mentioned on page 3

This rider provides additional insurance if the insured dies as the result of an accident.

If we receive proof that the insured died directly and independently of any other cause as the result of an accident, we shall pay under this rider:

1.an amount equal to the nominal insured capital;

OR

2.an amount equal to twice the amount mentioned in 1 above, if we receive proof that the accident occurred while the insured was a paying passenger in a licensed public vehicle operated by a public carrier for passenger service.

Risks not covered ‑ No payment will be made if the death:

1.occurs before the insured's first birthday;

2.occurs over 90 days after the accident;

3.is caused in whole or in part, directly or indirectly, by a physical or mental illness or treatment for the illness;

4.is caused in whole or in part, directly or indirectly, by any infection caused by a visible external injury suffered accidentally;

5.is caused in whole or in part, directly or indirectly, by the use of any drug, unless used on the advice of a physician licensed to practise;

6.results from suicide, while of sound mind or otherwise;

7.results from the commission of, or attempt to commit, assault or a criminal offence;

8.results from a journey in an aircraft or the descent of that aircraft while it was in flight, if the insured

(a) acted otherwise than as a passenger, or

(b) was on board a non‑military flight for the purpose of making a descent from the aircraft while it was in flight . . . [Emphasis added; italics in original.]

Issues

As previously stated, the main issue on this appeal is whether the appellant, a life insurance company, has the right to obtain access to the medical records of its insured in the possession of Hôpital Jean‑Talon ‑‑ a third party to the litigation ‑‑ which may contain information relevant to the cause of death of the insured. In answering this question, it must be remembered that: (1) at the time of application for life insurance, the insured had signed an authorization to release information from the medical record "[f]or the purposes of risk assessment and loss analysis", and the policy excludes coverage for accidental death in the event of suicide or death caused directly or indirectly by the intake of non‑prescribed drugs; and (2) under art. 402 C.C.P., the court has been conferred wide discretionary powers to order third parties to a litigation to give communication of documents in their possession which relate to the issues between the parties. Should it be concluded that the appellant has a right of access to the documents, the issue of the scope of that access and the time at which that access should be allowed must also be addressed, as well as the impact of the Charter on such a right of access and the process by which such access is obtained.

Central to the resolution of this last question is the balancing process through which the courts must weigh an individual's right to privacy and confidentiality of his or her medical records against society's interest in an efficient administration of justice which encourages full disclosure of all material facts of a case at the pre‑trial stage so as to give a defendant the opportunity to prepare a full and complete defence, and to allow a trial judge, as stated by Denning L.J. in Jones v. National Coal Board, [1957] 2 Q.B. 55 (C.A.), at p. 63, "to find out the truth, and to do justice according to law". (See also Henry L. Molot, "Non‑Disclosure of Evidence, Adverse Inferences and the Court's Search for Truth" (1971), 10 Alta. L. Rev. 45.)

Analysis

Hospital records in Quebec are statutorily protected by a veil of confidentiality (s. 7 of An Act Respecting Health Services and Social Services), as are confidences given to physicians by reason of their profession (s. 9, para. 2 of the Charter and s. 42 of the Medical Act). The right to non‑disclosure of confidential information generally is also provided for in the first paragraph of s. 9 of the Charter. However, the legislator has also expressly recognized various situations where parties may be given access to these records. Thus, health care establishments are allowed to impart communication of the contents of their records to parties with the express or implied consent of the beneficiary of the services or upon an order by the courts. When such consent has been given, the duty of hospitals to keep the records of their beneficiary confidential no longer remains.

In view of this, the question of whether the appellant should be given access to the medical records of the insured to investigate the cause of his death rests, first and foremost, on the wording of the contract of insurance, and, in particular, the nature and scope of the medical release form signed by the insured at the time he applied for insurance. The resolution of this question centres essentially on the meaning of the terms "[f]or the purposes of risk assessment and loss analysis" found in the release form signed by the insured in favour of the insurance company.

1. The Contract

Before embarking upon an analysis of the insurance contract, it may be useful to recall briefly some of the principles governing insurance contracts generally. They were appropriately set out in Caisse populaire des Deux Rives v. Société mutuelle d'assurance contre l'incendie de la Vallée du Richelieu, 1990 91 (SCC), [1990] 2 S.C.R. 995, at p. 1003.

In matters of insurance, as in other areas of the civil law, the principle of freedom of contract applies, and in general therefore it is for the parties to an insurance contract to define the limits of the risk covered and the conditions under which the indemnity is payable. [Emphasis added.]

In construing the terms of an insurance contract, it is now well recognized that the principles of construction which apply are the same as those generally applicable to commercial contracts. Indeed, some of these principles have been codified in the Civil Code in arts. 1013 to 1021. Thus, should a contract need interpretation, the cardinal rule is that the intention of the parties must prevail, subject of course to the public order provisions of the Civil Code. In the search for this intention, particular consideration must be given to the terms used by the parties, the context in which they are used and finally the purpose sought by the parties in using these terms (Jean‑Guy Bergeron, Les contrats d'assurances (1989), vol. 1, at p. 106). It is only where all the rules of construction have failed in assisting in the discovery of the true intention of the parties, that the court is entitled to resort to the contra proferentem rule in which case the contract is interpreted against the stipulator (Consolidated‑Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co., 1979 10 (SCC), [1980] 1 S.C.R. 888, at pp. 900‑901. This rule has been codified at art. 1019 C.C.L.C which provides:

1019. In cases of doubt, the contract is interpreted against him who has stipulated and in favor of him who has contracted the obligation.

and in the insurance section of the Civil Code where art. 2499 reads:

2499. In case of ambiguity, the insurance contract is interpreted against the insurer.

Turning now to the insurance contract under scrutiny here, I am of the view that the terms "[f]or the purposes of risk assessment and loss analysis" are clear and unambiguous. Consequently, they do not require interpretation. I therefore whole-heartedly endorse the excellent analysis of Malouf J.A. and his conclusion that, in choosing to employ the two different terms, "risk" and "loss", the parties unequivocally intended the waiver to apply to two distinct time frames in the life of an insurance policy: the initial investigation required for the formation of the insurance contract and the investigation which becomes necessary to study the claim of a beneficiary to the supplementary indemnity for accidental death.

Indeed, the plain meanings of the words "risk" and "loss", as Malouf J.A. himself rightly points out at p. 69, refer to two distinct events:

[translation] These definitions [dictionary definitions] clearly show that the word "risk" refers to a future event, certain or uncertain, which may occasion loss, while the word "loss" simply means the occurrence of the event giving rise to the claim.

This view is reinforced when looked at in the particular context in which these terms have been used. Indeed, it must be kept in mind that "risk" and "loss" are elements which are central to the foundation of insurance contracts. Thus, the Civil Code provides the following definition of insurance contracts:

2468. A contract of insurance is that whereby the insurer undertakes, for a premium or assessment, to make a payment to a policyholder or a third person if an event that is the object of a risk occurs.

Professor Birds in Modern Insurance Law (2nd ed. 1988), at pp. 8‑9, for his part, defines insurance contracts as:

. . . any contract whereby one party assumes the risk of an uncertain event, which is not within his control, happening at a future time, in which event the other party has an interest, and under which contract the first party is bound to pay money or provide its equivalent if the uncertain event occurs.

Hence, "risks" in insurance contracts refer to the very object of the contract of insurance, the happening of which ‑‑ the "loss" ‑‑ triggers the obligation of the insurer to indemnify the insured or his beneficiary. This interpretation is lent further support by the Civil Code which assimilates "sinistre" to the English word "loss". In this context, Malouf J.A. is entirely correct, in my opinion, in observing, at p. 70:

[translation] . . . the loss can only occur at the time the risk is realized. In other words, it is the loss which gives rise to the claim. . . . Put otherwise, the risk is the future event which is feared by the insured. This word refers to a future event, certain or uncertain, which may occasion loss. The word "loss" refers to the occurrence of the event giving rise to the claim. In other words, the terms "risks" and "losses" have a different definition and a distinct meaning.

Consequently, with respect, it would be a distortion of the plain meaning as well as the technical meaning of the terms "risk" and "loss" to hold, as did Baudouin J.A., that the terms "loss analysis" should be construed as a reference to losses which may have occurred in the past and which are material to the appreciation of the risk, the setting of the premium and the decision to extend coverage. Indeed, if that were the intention of the parties, it would have been sufficient to stipulate simply that the waiver was "[f]or the purposes of risk assessment" and to omit the rest of the clause, as investigation of past losses is already subsumed in the initial evaluation of the risk. Again I find Malouf J.A.'s remarks on this issue relevant (at p. 70):

[translation] I cannot agree that the term "loss analysis" refers only to the facts existing at the time of the proposal. Those facts undoubtedly affect the setting of the premium and may lead the insurer to accept or refuse the proposal submitted. In my view, the term "loss analysis" can refer only to the realization of the risk and the determination which the insurer may make at that time.

I would also point out that, in the context of a life insurance policy, the term "loss" can obviously only refer to the death of the insured, an event which, of necessity, occurs only in the future.

Should it be necessary to pursue this analysis further, the most important indicator of the intention of the parties is the purpose of the waiver. In general, for basic life insurance policies, all that a beneficiary needs to do to qualify for the benefit is to provide proof of death (art. 2528 C.C.L.C.). It may be needless to point out that such proof is usually easily obtained and rarely contested. When dealing with claims for accidental death, however, the question of entitlement and burden of proof is more complex.

Insurance policies providing accidental death benefits typically contain two classes of exclusions: first, exclusions that are merely supportive of the substantive provisions of the policy for accidental death, such as death by suicide or illness ‑‑ which are clearly not accidental deaths ‑‑ and, second, exclusions covering situations where the nature of the circumstances surrounding the death is such that it is usually difficult, if not impossible, to determine the exact cause of death, for example, in cases of inhalation of gas or fumes or ingestion of poison (David Norwood, Life Insurance Law in Canada (1977), at pp. 311‑12). The purpose of these exclusions, as indicated by Norwood, is primarily to protect the insurer from uncertain and unprovable situations.

The question of burden of proof is further complicated when the circumstances of the death appear questionable and suicide may be involved (Norwood, supra, at pp. 313‑17). (For an analysis of the burden of proof and the presumption against suicide in a claim for the proceeds of an accidental death insurance policy, see Mason J. in Beischel v. Mutual of Omaha Insurance Co. (1991), 1991 5900 (AB KB), 82 Alta. L.R. (2d) 103 (Q.B.).) Thus, whereas, in general, an insurer conducts only one investigation under a health or life insurance policy, i.e., the initial investigation for the assessment of risk and the setting of the premium, in a claim for accidental death insurance benefit a second investigation almost always proves to be necessary. In particular, in the present case, determination of the cause of death is essential to assess whether the beneficiary is entitled to the supplementary indemnity for accidental death and, if so, the amount of that indemnity.

Furthermore and a fortiori, if, as Baudouin J.A. states, the right to privacy and to secrecy of medical information is a personal right ‑‑ a matter which it is not necessary for us to decide here ‑‑ in order to give full effect to the insurance contract and to determine the rights of a beneficiary of a life insurance policy, an insurer has no option but to obtain an authorization for the future from the insured to have the right of access to the latter's medical records.

In light of the foregoing, in signing the waiver, the insured could only but have consented to the release of his medical records to the appellant for the purpose of investigating the cause of his death so as to enable the insurance company to determine entitlement to the supplementary indemnity for accidental death according to the terms of the policy. There can be no doubt, as Malouf J.A. observed, that such waiver survives the death of the insured.

The next question which must be resolved is the scope of information to which the appellant is entitled. The appellant requests unrestricted access to the records of the insured. Indeed, its motion concludes as follows:

[translation] To ORDER the respondent, Hôpital Jean‑Talon, to allow counsel for the defendant‑applicant to examine the complete medical record of Patrick Frenette, including but without limiting the generality hereof, correspondence between physicians or hospitals, the various laboratory, expert or X‑ray reports it has in its possession, by providing a copy of the said record at the expense of the defendant‑applicant;

The scope of disclosure depends on the wording of the medical information release form signed by the insured. Careful reading of this waiver shows unequivocally that the only condition attached is that it be used for the purposes of "risk assessment and loss analysis". No other limit as to the scope is stipulated. It follows, therefore, that this contractual waiver entitles the appellant to have access to the complete medical records of the insured. Consequently, the mis en cause, Hôpital Jean‑Talon, was not justified in denying the appellant access to these records. It may also be noted, en passant, that hospital administrative regulations which require that consents to release medical information be signed within 90 days of a request for information to be valid are of no effect against the clear words of a waiver signed by a beneficiary of hospital services. While such internal regulations may be intended to protect beneficiaries of hospital services, in the absence of prevailing legislation limiting the right of a beneficiary of such services to relieve a health care facility from its duty of non‑disclosure, these regulations are of no value since the right to the non‑disclosure of medical records belongs to the patient and can therefore be waived by him unconditionally or according to the conditions he sets out in the authorization. (For a discussion of this issue, see Boivin v. Mutuelle d'Omaha, Cie d'assurance, Sup. Ct. Roberval, No. 155‑05‑000065‑897, February 22, 1990, unreported.)

Given the clear and unambiguous terms of the waiver contained in the insurance policy, neither the respondent nor the mis en cause were entitled to oppose the appellant's request for the complete medical records of its insured providing that no superseding legislation to the contrary governs this situation. It is in this context that the Charter issue was raised before us and relied upon by the Court of Appeal, and it is to this issue which I now turn.

2. The Charter

The rights to privacy and to secrecy of confidential information have been enshrined in the Charter in ss. 5 and 9 which bear repeating here:

5. Every person has a right to respect for his private life.

6. Every person has a right to non‑disclosure of confidential information.

No person bound to professional secrecy by law and no priest or other minister of religion may, even in judicial proceedings, disclose confidential information revealed to him by reason of his position of profession, unless he is authorized to do so by the person who confided such information to him or by an express provision of law.

The tribunal must, ex officio, ensure that professional secrecy is respected. [Emphasis added.]

Given that the right of confidentiality now receives quasi‑constitutional protection in Quebec, the question which arises, therefore, is the scope and extent of this protection, especially in the presence of an express waiver of this right. Should an absolutist approach be taken in interpreting the right of confidentiality such that it may only be breached in very exceptional circumstances or should a relativist approach be adopted? Although, at first glance, from a reading of the broad general principle enunciated in the first paragraph of s. 9 of the Charter, it may appear that an absolutist interpretation should be favoured, the right to the confidentiality of one's medical records and the correlative duty imposed on those in possession of such records are undoubtedly relative in nature. Indeed, this is expressly recognized by the Charter itself in the second paragraph of s. 9 which deals with the duty of professionals to maintain secrecy. The legislator has thus established that either the holder of the right may, of his or her own will, relieve the professional from his or her duty to secrecy or the legislator himself, by express provision, may do so in the general public interest. That the legislator did not intend to make the right to non‑disclosure of confidential documents absolute or quasi‑absolute in enshrining this right in the Charter is further evidenced by the Act Respecting Health Services and Social Services which governs the duty of public health care facilities to keep the records of beneficiaries of their services confidential, in particular by s. 7 of this Act, applicable in the present case.

This section expressly recognizes that parties may be given access to the records of a beneficiary of hospital services in various circumstances. One such circumstance is where the beneficiary has consented to the release of his or her records to designated individuals. While this consent may be express or implied, the legislator has not imposed any restriction as to the form or scope of the disclosure. In the absence of consent, parties may still obtain access to such records either by requesting an order of the court or by falling within the class of persons enumerated in ss. 7 and 8 of An Act Respecting Health Services and Social Services or other such permissive legislation. Thus, individuals such as professionals ‑‑ for study and research ‑‑ (s. 7), the heirs and legal representatives of a beneficiary of services, the holder of parental authority, or a person entitled to the payment of a benefit under a life insurance policy (s. 8) may obtain access to the records of the beneficiary of services without prior authorization from the beneficiary of services or without the necessity of an order from the court.

Absent such clearly permissible instances, however, the scope of protection accorded to confidential information and, its corollary, the duty imposed on those in possession of such information vary depending on the context in which the right of confidentiality is being invoked to suppress the release of information. This variation comes as a result of the different principles and interests which must be taken into account when evaluating whether the information, the release of which is being sought, ought to remain confidential (see, for example, Andrée Lajoie, Patrick A. Molinari and Jean‑Marie Auby, Traité de droit de la santé et des services sociaux (1981), at p. 256; Yves‑Marie Morissette and Daniel W. Shuman, "Le secret professionnel au Québec: une hydre à trente‑neuf têtes rôde dans le droit de la preuve" (1984), 25 C. de D. 501; Léo Ducharme, "Le secret médical et l'article 9 de la Charte des droits et libertés de la personne" (1984), 44 R. du B. 955, at pp. 959‑60). Hence, in an extrajudicial context, the main principle underlying the duty of a professional or a hospital to keep their medical records secret is that of the privacy of the individual. It is, therefore, legitimate for a court to give a broad interpretation to the general duty of non‑disclosure imposed on hospitals and medical professionals in these circumstances and to interpret restrictively any violation of the right to confidentiality.

By contrast, in a judicial context, the duty of confidentiality of hospitals and the duty of secrecy of professionals such as physicians is translated into an evidentiary privilege. This may result in a conflict between the right of privacy of an individual and other fundamental principles of justice such as compellability, disclosure of material facts, the right to make a full defence and the search for truth. As a result, the scope of information protected by confidentiality must be assessed keeping in mind the divergent interests at play. The following comments from Professors Royer and Ducharme ‑‑ albeit on professional secrecy ‑‑ illustrate this position. Although the concept of professional secrecy may have different foundations and sources, such as the Charter and the professional Code of Ethics, many of its underlying principles are similar. Thus, the principles which have been developed in the case law and doctrine are applicable by analogy to the issue of confidentiality of hospital records.

On the objectives of professional secrecy, Professor Jean‑Claude Royer, La preuve civile (1987), writes at p. 405:

[translation] The purpose of professional secrecy is twofold, that of protecting the confidentiality of relations between a professional and his client with respect to the public in general and that of ensuring the non‑disclosure in court of confidential information given by a client to a professional. When understood in the first sense, secrecy is a duty of discretion imposed on the professional. In general the latter may not disclose the confidences of his client to third parties. This obligation may result from legislation, regulations or even the existence of a contractual relationship. Its infringement exposes the offender to civil or criminal penalties. When understood in the second sense, professional secrecy is the right or obligation of a person not to disclose to a court confidential information revealed to him in the course of his duties. It is an immunity which limits the admissibility of evidence and is an obstacle to discovering the truth. [Emphasis added.]

Professor Ducharme, supra, for his part, observes at pp. 959‑60:

[translation] Once it is recognized that there is a distinction between professional‑secrecy‑duty‑of‑discretion, as set out in the first paragraph of s. 9, and professional‑secrecy‑immunity governed by the second and third paragraphs, it is quite understandable that the rules applicable to one case do not necessarily apply to the other. Professional secrecy as a duty of discretion has its own special features, independent and apart from professional secrecy as a source of immunity. . . . When it comes to determining the extent of the professional secrecy immunity, such a broad interpretation is no longer possible. Two fundamental values of society must then be reconciled, namely the right to respect for privacy and the right to justice. The reconciliation of these two fundamental rights requires a restrictive interpretation of professional secrecy. [Emphasis added.]

Indeed, in the early 1980's, the Quebec Court of Appeal had espoused the above approach in a number of decisions: Trempe v. Dow Chemical of Canada Ltd., [1980] C.A. 571, Cordeau v. Cordeau, 1984 2837 (QC CA), [1984] R.D.J. 201, Paillé v. Lorcon Inc., 1986 3823 (QC CA), [1986] R.D.J. 278. The remarks of Turgeon J.A. in Cordeau, at p. 205, are illustrative of this approach:

[translation] Under the last paragraph of s. 9 [of the Charter], a judge has the discretionary power to protect a physician or require him to testify, depending on whether the judge considers it appropriate for the "sound administration of justice".

The interests of justice require that the truth be discovered. This involves the obligation of a physician to be silent in a judicial proceeding, not his duty of secrecy to the public in general. It is important to avoid making the physician an involuntary accomplice in the fraud committed by a party, as for example when the latter has made false statements in an insurance matter. [Emphasis added.]

In 1989, however, the decision of the Court of Appeal in Rousseau (Succession de) v. Groupe Desjardins, Assurances générales, 1989 459 (QC CA), [1989] R.J.Q. 785, marked the return to an approach taken in 1977 in Société centrale d'hypothèque et de logement v. Pagé, [1977] C.A. 560, namely, a broad interpretation of s. 9 of the Charter when in conflict with the administration of justice, an approach shared by the Court of Appeal in this case. I suggest that the early 1980 decisions are more in accord with the rationale underlying s. 9 of the Charter and the right to non‑disclosure of confidential information.

The duties pertaining to and the principles governing the confidentiality of hospitals with respect to their records are analogous to professional secrecy between physician and patient. The right of confidentiality is a relative right which exists mainly in the interest of the beneficiary of the hospital services. The legislator has envisaged various situations where a hospital may be relieved from its duty of confidentiality to give communication of the records of a beneficiary of services. One such case is where a beneficiary has given his consent to the release of his hospital records; another is where a court orders such a release.

In the present instance, the question of access and scope of access was easily resolved by the clear terms of the contract. Where a clear waiver has been given by the holder of the right to confidentiality, or where legislative provisions such as those found in the Act Respecting Health Services and Social Services permit direct access to hospital records, the question of the right to privacy is no longer in issue since, in one case, the holder of the right has, of his own accord, put aside his privacy under the terms and conditions set by him, and, in the other, the legislator has deemed that other interests must prevail over the individual interest of the beneficiary of the hospital services. Hence, no balancing of interests is necessary in either situation. In the first case, once an express or implied authorization has been found, such as here, health care facilities must release the information according to the terms of the authorization. In the present case, the only limit the insured had imposed on the release of his medical records to the appellant was that it be used for the purpose of "risk assessment and loss analysis"; no restriction as to the scope of information contained in the records was mentioned by the insured. Thus, the appellant was entitled to have access to the complete records of the insured provided these records were needed for the purpose stated in the authorization, a matter easily resolved here.

Situations may arise, however, where no authorization has been given by the insured or beneficiary of the hospital services nor can any authorization be inferred from his acts, or where an authorization has been deemed insufficient, or again where a health care establishment has refused to release the records requested despite a valid express or implied authorization or a legislative provision allowing such access. In these circumstances, a party must have recourse to the courts for an order compelling the health care establishment to release such records. Presented with such a motion, a court must weigh the interests in conflict. In the face of a clear express or implied authorization from the holder of the right of confidentiality or where a legislative provision such as those found in the Act Respecting Hospital Services and Social Services is applicable, the courts have no discretion, they must exercise their jurisdiction to ensure that all relevant documents be before them to properly and fairly determine the issues between the parties and be made accessible, at the pre‑trial stage, to a party to a litigation to allow the latter to prepare a full and complete defence. Hence, in these circumstances, the courts must issue an order against the health care establishment ‑‑ in possession of records relevant to the issue in litigation ‑‑ to provide these to the petitioner according to the terms of the authorization or the conditions set by the legislator for direct access to the records; no balancing process is necessary.

In other circumstances, however, the right of privacy of the beneficiary of the hospital services may come into direct conflict with the public interest or the interest of justice. The courts have a duty to protect these interests as well and must therefore weigh the divergent interests at play. It is in the context of this potential conflict that the procedural scheme in the Code of Civil Procedure must now be examined.

3. The Process

In Quebec, the procedure for compelling production of otherwise confidential medical documents is governed by the Code of Civil Procedure. The rules embodied in this Code have been defined as [translation] "the set of rules that govern the organization and operation of justice with a view to guaranteeing to individuals that their subjective rights in matters of private law are implemented and sanctioned" (Henry Solus and Roger Perrot, Droit judiciaire privé (1961), vol. 1, at p. 13 (emphasis added)). In 1965, the Code was completely revised. Through this reform, the Commissioners sought to remove the excessive formalism and complexity which characterized the provisions of the previous Code and proposed, in their place, new provisions designed to simplify the procedure and to create a more expeditious system of procedure in order to bring the latter back to its true role of "servant of the substantive law" (Quebec, Legislative Assembly of Quebec, Bill 20: Code of Civil Procedure (1965), general remarks of the Commissioners at pp. I to VIa). In this spirit, several provisions were added or modified to promote full and early disclosure of the evidence. Indeed, art. 2 of the Code expressly sets forth the manner in which its rules are to be interpreted:

2. The rules of procedure in this Code are intended to render effective the substantive law and to ensure that it is carried out. . . . The provisions of this Code must be interpreted . . . so far as possible, in such a way as to facilitate rather than to delay or to end prematurely the normal advancement of cases.

It is with these principles in mind that one must determine whether the Code of Civil Procedure provides a mechanism whereby pre‑trial access to medical records held by third parties to a litigation may be granted. It is the appellant's contention that art. 402 C.C.P., grants courts the power to order such access.

The purpose of art. 402 C.C.P., according to the Commissioners, is to facilitate the administration of justice in the spirit of the new Code (at p. 79a):

These texts [arts. 401 and 402] reproduce in substance Article 289 C.C.P. and are intended to provide for the production in the record, even before the trial, of any document of interest to the case which is in the possession of one of the parties or even of a third party. The suggested provision makes it possible to summon one of the parties for this purpose without prior permission, but subjects the summoning of a third party to the prior authorization of the court which will be in a position to decide any objections raised. [Emphasis added.]

As Baudouin J.A. correctly reminds us at p. 66 of his reasons, art. 402 C.C.P. has been construed as the proper procedure for requesting access to medical records in possession of third parties:

[translation] It is now settled law that the disclosure of medical records is not limited solely to the two cases mentioned in art. 400. Article 402 C.C.P. is located in Subsection 3 of Section 2 of Chapter III, entitled "Production of Documents", a section which is general in scope as compared with subsection 2, containing art. 400 C.C.P., which deals specifically with preliminary medical examinations. As Louise Mailhot J.A. noted in Succession de Rousseau, supra:

Article 402 is a more general article concerning the production of all kinds of documents and the legislature has not limited its scope in matters involving medical records to medical examinations provided for in art. 399 C.C.P. and the medical record in art. 400 C.C.P.

Our courts have also held that there is nothing to prevent a medical or hospital record being a document in itself within the meaning of art. 402, provided that it meets other criteria of eligibility . . . .

While, therefore, art. 402 C.C.P. is the proper procedural vehicle for obtaining disclosure of this kind of document, this does not mean that such disclosure can and must be given in every case. It is up to the judge to ensure that the document discloses facts relating to the issues which can be evidence between the parties. [Emphasis added.]

While courts have had no difficulty agreeing that art. 402 C.C.P. confers upon them a wide discretionary power to order third parties to communicate their medical records, once the question of their disclosure has been settled, there seems to have been much less consensus on the criteria to be applied in the exercise of this discretion, or the scope and time at which such communication may be given.

A review of the jurisprudence relating to art. 402 C.C.P. reveals that requests for access to medical records almost always originate from three classes of cases: (1) actions arising out of bodily injuries; (2) actions arising out of medical malpractice; and (3) actions based on life (or sometimes health) insurance policies where the deceased's representations about his or her health were involved. (One leading case in Quebec was concerned with a testamentary action in which the testator's mental capacity was in dispute (Cordeau v. Cordeau, supra).) A close analysis of these three major classes of cases reveals that, in general, in personal injury cases, requests for access to medical records under art. 402 C.C.P. have been granted with great consistency. The courts have had more difficulty, however, in determining the scope of information to which a petitioner should be granted access. While motions for release of records of accidents and subsequent medical treatments have generally been granted, the courts have steadfastly refused to allow pre‑trial access to pre‑injury records not relevant to the issue of liability, even though they may be relevant to the evaluation of damages. When that situation occurs, the courts have tended to defer to the trial judge (see, for example, Audet v. Hôtel‑Dieu de Salaberry de Valleyfield, [1974] R.P. 236 (C.A.)). Hence, only where pre‑injury records are relevant to the issue of liability itself, will the courts generally allow pre‑trial access to these records (see, for example, Lindsay v. Henri Laflamme Inc., J.E. 89‑760 (Sup. Ct.); Rothpan v. 123870 Canada Inc., J.E. 89‑1111 (Sup. Ct.)).

In medical malpractice cases, courts have again consistently granted defendants access to the medical records of plaintiffs, holding that when a plaintiff places his or her physical or mental well‑being in issue, he or she implicitly waives his or her right to privacy and confidentiality of medical records (Alain Bernardot and Robert P. Kouri, La responsabilité civile médicale (1980), at p. 159). An additional reason often cited by the courts for granting defendants access to the medical records of plaintiffs is the right of a defendant to a full and complete defence linked with the principle that evidential privilege not be invoked to impede the judicial process (see, for example, Coffey v. Tran, 1989 870 (QC CA), J.E. 91‑223 (C.A.); Goulet v. Lussier, [1989] R.J.Q. 2085 (C.A.); Paillé v. Lorcon, supra). Pre‑trial access to the records is usually allowed in order to give the defendant the opportunity to prepare a full defence (see Goulet, supra). Finally, the scope of access to the records has been usually limited to that which is directly related to the issue in litigation (see Coffey, supra).

As for cases involving insurance policies, again the courts have allowed access to the medical records of the insured, in principle so that medical secrecy not be used as a cover for fraudulent acts. Like in malpractice cases, medical records in insurance cases also relate directly to the central issue: the validity of the contract which is itself dependent on the faithful disclosure of past health status ‑‑ a matter of public order under the Civil Code (see, for example, Taxi Newman Lafleur v. Cie d'assurances Provinces‑Unies, [1991] R.R.A. 411 (Sup. Ct.) (on appeal); Impériale, Cie d'assurance‑vie v. Succession de Roy, 1990 2695 (QC CA), [1990] R.J.Q. 2468 (C.A.); and Robitaille v. Cie d'assurance C.N.A., J.E. 79‑565 (Sup. Ct.)).

Even though in health and life insurance cases, the question of the health of the insured is directly in issue, courts have usually held that an implicit waiver of the right to confidentiality may not be inferred in these cases contrary to the position in malpractice actions. In one decision, however, the Court of Appeal did infer such a waiver. In Laprise v. Bonneau, 1984 2873 (QC CA), [1985] C.A. 9, speaking for the court, Jacques J.A. stated at p. 12:

[translation] . . . the fact of mentioning his physical condition in a court is, in the absence of indications to the contrary which are not present here, implicit authorization to disclose the appellant's medical records provided that the contents of the record are only admitted in evidence in accordance with the usual rules of relevance and causation.

This judgment, however, appears to be the only reported insurance case in Quebec where a court has held that a waiver may be implied and it should be pointed out that it involved a disability insurance claim.

The difficulty of extending the implicit waiver principle to life insurance claims can perhaps be better understood if one takes the view, such as the one held by the majority of the Court of Appeal in the present case, that a waiver of the right to confidentiality must be interpreted restrictively, especially when dealing with a waiver for the future. In my view, if we are to accept that, in malpractice cases, an implicit waiver may automatically be inferred, it seems only logical that, in life or health insurance cases, where the physical or mental integrity of the insured is an equally important issue, the concept of implicit waiver should apply equally. Indeed such a view was proposed by Alastair M. Watt in "Le secret professionnel" (1945), 5 R. du B. 189, at pp. 195‑96:

Life insurance policies are issued on the strength of the assured's statements regarding his health and his previous medical history. The validity of the contract and the company's obligation to pay depend on the truth and accuracy of these statements, so that the assured's physical condition and all connected with it are matters of contract between him and his insurer. As against the insurer who is being asked to pay, there can be no secrecy, it would seem, about anything relating to the truth or falsity of the representations upon which the policy was issued. The contract of insurance itself is a waiver of the privilege so far as the insurance company is concerned; and the plaintiff by suing on the policy and thus reaffirming the truth of the statements in the application, puts all these facts in issue and thus implicitly waives the privilege once again. [Emphasis added.]

While the preceding comments were also made in the context of an invalidity or health insurance claim, there is no reason not to extend its reasoning to claims relating to life insurance indemnities. The problem of the personal nature of the right to confidentiality in life insurance cases may be solved if the waiver is deemed to have been made at the time of formation, perhaps as one of the implicit obligations of the contract. In the common law context, Wigmore in Evidence in Trials at Common Law, vol. 8 (McNaughton rev. 1961), at p. 854, expressed the view that:

A contract of life or accident insurance, entitling the promisee on certain facts of bodily condition to receive a money payment, ought to be deemed in itself an implied waiver by both parties because otherwise it leaves the prospects of proof for both parties a mere gamble. [Emphasis added; italics in original.]

I suggest that such a construction is entirely compatible with the precepts of the Civil Code.

From this review of cases relating to requests for access to medical records under art. 402 C.C.P., the following propositions emerge. In the absence of an express or implied waiver, or a legislative provision allowing direct access, or when, in spite of such valid waiver or provision, access is denied by a health care facility, a party may request an order of the court, directed against that facility, in order to gain access to the records needed, based on art. 402 C.C.P. In the case of an unjustified denial of access, such as where a valid waiver was made or a legislative provision exists which allows access, courts must compel the establishment to respect the terms of the waiver or the legislative provision. Otherwise, judges must exercise their discretion under art. 402 C.C.P. according to the degree of relevance and importance of the information sought relative to the issue between the parties. In exercising that discretion, a court must weigh the diverse interests in conflict. The questions of whether access will be granted at all, the scope of that access and timing of that access all depend on their relevance ("rattachement et pertinence" see Goulet, Coffey and Laprise, supra) to the question in issue. Access to the information sought becomes inextricably linked to one's ability to prepare a full defence. Accordingly, a judge will be greatly inclined to allow access to medical records where the state of health of the holder of the privilege is the central issue of the case and where there are no other means for a party to prove his case. It is the judge's task to weigh these factors in the pursuit of an efficient and healthy administration of justice while at the same time ensuring the protection of the right of privacy and confidentiality of an individual against fishing expeditions. Article 402 C.C.P. allows the courts the discretion to balance the interests of justice against the rights of the individual. In each case, the result will depend on the particular circumstances involved.

Given the above, I am compelled to conclude that, in the present case, even if there had been no waiver of the right to confidentiality, or had the waiver not been applicable to the investigation into the cause of death of the insured, the appellant insurer was entitled to have access to the medical records sought by a court order under art. 402 C.C.P and access to those records has been wrongfully refused. The cause of the death of the insured is indeed the central issue of this case, triggering the operation of art. 402 in favour of the appellant. Moreover, no other evidence of the appellant's contentions of suicide or death by fatal reaction to drugs is available as no chemical test could be performed on the insured's body to detect traces of alcohol or drugs. Indeed, much of the information gathered from other sources alluded to the possibility of suicide or fatal reaction to drugs. However, none of these records provide the best evidence (art. 1204 C.C.L.C.) or pertain more directly to the cause of death of the insured than do the records of Hôpital Jean‑Talon where the insured had apparently been treated soon before his disappearance. As pointed out by counsel for the appellant at trial, the coroner's conclusion that the probable cause of death was asphyxiation by drowning is of negligible value to the issue of accidental death as the immediate cause of death of any drowning victim is always asphyxiation. Thus, this information is in no way helpful in determining whether the death was self‑induced or truly an accident. As for the scope of access, I find the complete records of the insured held by Hôpital Jean‑Talon to be relevant and would therefore agree that access to them should be given to the appellant. The concerns expressed by the members of the Court of Appeal ‑‑ that access to the complete medical records of the insured would constitute an unjustified intrusion into his private life ‑‑ are here, in my view, misplaced. The complete records of the mis en cause relating to the insured covered only a brief period of his life, dating only from 1985 to 1986, the year preceding his death. The nature of the claim puts into question a whole series of events which may have led to the questionable cause of death and renders these medical records crucial to the issue being litigated. In these circumstances, access to these records surely does not constitute a fishing expedition.

4. A comparative look at the common law in Canada

Since insurance companies operate in all ten Canadian provinces and forms used for authorizing the release of medical information being generally similar, it is interesting to see how access to medical records relating to an insured, amongst others, in the possession of a third party to a litigation are treated in other provinces. Interestingly, the position I have set out in Quebec accords closely with that in the common law jurisdictions.

English and Canadian common law courts have traditionally refused to recognize an evidentiary privilege for physician‑patient communications and hospital records, although there is now a trend towards protection of medical information received in the context of psychiatric or marital counselling (John Sopinka and Sidney N. Lederman, The Law of Evidence in Civil Cases (1974), at pp. 206‑9; Wigmore, supra, c. 86; and Bartha Knoppers, "Confidentiality and Accessibility of Medical Information: A Comparative Analysis" (1982), 12 R.D.U.S. 395, at p. 401). This is premised on the strong protection common law courts have traditionally accorded the administration of justice and the adversarial justice system. Picard J., in Hay v. University of Alberta Hospital (1990), 1990 2619 (AB KB), 69 D.L.R. (4th) 755 (Alta. Q.B.), at pp. 757‑58, describes as follows the status of the right of confidentiality and the question of litigation privilege in the context of a malpractice suit in the common law jurisdictions:

The issue requires a consideration of the position of a treating physician who will be called as a witness in a lawsuit. The fact that such a person is both a physician and a witness raises legal principles that may seem to conflict. The physician‑patient relationship is clothed with confidentiality, a right which may be waived by the patient. Confidentiality is an important attribute of the physician‑patient relationship, essential in promoting open communication between physician and patient. The patient may expressly waive this right or, by his actions, be found to have impliedly waived it. Alternatively, an overriding public interest or a statutory direction may justify a physician disclosing information about the patient. In the absence of such circumstances, the right remains and a physician who divulges confidential information could face an action for breach of confidentiality, a possibility which obviously causes physicians some concern.

However, once in the witness‑box, a physician is like any other witness and cannot claim privilege, that is to say he is compellable to testify about matters involving the patient even in the absence of the patient's consent. An exception arises where privilege may be asserted on the basis of solicitor‑client privilege but that is not the case here. Thus, in court, a physician must testify if asked about matters which would have been protected by the patient's right to confidentiality at an earlier time.

In the pre‑trial stage, if the right to confidentiality is removed, the physician is in the position of any other witness and may be contacted without the requirement of consent of the party who will be calling him. [Emphasis added.]

In Canadian common law, the leading authority on the question of production of medical records in possession of third parties remains the unanimous Ontario Court of Appeal judgment in Cook v. Ip (1985), 1985 163 (ON CA), 52 O.R. 289. In that case, the plaintiff had instituted an action against the defendants for compensation for personal injury and loss of income as a result of a motor vehicle accident. The defendants were refused access to the medical records of the plaintiff in the possession of the Ontario Health and Insurance Plan (OHIP). Given the [Ontario ]Health Insurance Act's provisions to the effect that the person administering the Act should preserve secrecy, OHIP claimed a litigation privilege against production of medical records and other documents in court proceedings. Cory J.A. (then of the Court of Appeal) rejected this claim and, speaking for the court, wrote at p. 292:

There can be no doubt that it is in the public interest to ensure that all relevant evidence is available to the court. This is essential if justice is to be done between the parties. Wherever damages are claimed for injuries suffered, a review of the medical records is of vital importance to a court's decision. [Emphasis added.]

At pages 292‑93 he added:

No doubt medical records are private and confidential in nature. Nevertheless, when damages are sought for personal injuries, the medical condition of the plaintiff both before and after the accident is relevant. In this case, it is the very issue in question. The plaintiff himself has raised the issue and placed it before the court. In these circumstances there can no longer be any privacy or confidentiality attaching to the plaintiff's medical records.

There is inherent jurisdiction in the court to ensure that all relevant documents are before it. The court requires this jurisdiction in order to determine properly and fairly the issues between the parties. In R. v. Snider, 1954 40 (SCC), [1954] S.C.R. 479 . . . Rand J. . . . at p. 482 . . . stated:

. . . in a court of justice every person and every fact must be available to the execution of its supreme function. [Emphasis added.]

Cory J.A. agreed that settlement discussions are an additional reason for granting access to medical records at p. 292:

It is also important to the parties that they have early production of these documents. Settlement of disputes at an early date is of great benefit to the parties and to the judicial system. In order to make an informed, fair and just settlement, counsel for the parties must be in possession of all pertinent material. [Emphasis added.]

As for the concern relating to fishing expeditions into the privacy of individuals, Cory J.A. remarked at p. 296:

. . . it should be remembered that this decision will not lead to unnecessary and vexatious fishing expeditions as the court can supervise and control the procedures which must be undertaken to obtain production. This is provided by rule 30.10 of the present Rules of Civil Procedure and Rule 349 of the Rules of Practice.

Cases subsequent to Cook further refined the rule for determining the scope of information to which a petitioner may be granted access (i.e., the relevance of the information sought relative to the issue in question). Thus, the question of whether pre‑injury records or the entire medical records should be released to petitioners in common law jurisdictions depends entirely on its relevance to the issue (see, for example, Furlano v. Calarco (1987), 1987 4240 (ON SC), 60 O.R. (2d) 451 (Ont. H.C.), and Tamssot v. Belgrano (1987), 1987 4241 (ON SC), 59 O.R. (2d) 57 (Master)).

Rules of procedure governing the pre‑trial production of documents in the possession of third parties analogous to art. 402 C.C.P. have also been enacted in other Canadian provinces. In Ontario, for example, rule 30.10 of the Rules of Civil Procedure (referred to above by Cory J.A. in Cook) provides:

30.10 (1) The court may, on motion by a party, order production for inspection of a document that is in the possession, control or power of a person not a party and is not privileged where the court is satisfied that,

(a) the document is relevant to a material issue in the action; and

(b) it would be unfair to require the moving party to proceed to trial without having discovery of the document.

(3) Where privilege is claimed for a document referred to in subrule (1), or where the court is uncertain of the relevance of or necessity for discovery of the document, the court may inspect the document to determine the issue.

Similarly, in British Columbia, rule 26(11) of the Supreme Court Rules provides:

Where a document is in the possession or control of a person who is not a party, the court, on notice to the person and all other parties, may order production and inspection of the document or preparation of a certified copy that may be used instead of the original.

The manner in which a court should exercise its discretion under rule 26(11) as well as the scope of information which may be communicated to an applicant was spoken to by the British Columbia Court of Appeal in Dufault v. Stevens (1978), 1978 366 (BC CA), 6 B.C.L.R. 199. The British Columbia Court of Appeal took an approach analogous to the one chosen in Cook, supra, by the Ontario Court of Appeal. Craig J.A. for the court held at pp. 203‑5:

The intent of R. 26(11) is to provide any party to an action with the means of obtaining the production and inspection of a document if the applicant is able to satisfy the judge that the document contains information which may relate to a matter in issue. . . . A party applying for an order under R. 26(11) must satisfy the court that the application is not in the nature of a "fishing expedition": Rhoades v. Occidental Life Ins. Co. of California [1973 1610 (BC CA), [1973] 3 W.W.R. 625 (B.C.C.A.)]. He must show that a person who is not a party to the action has a "document" or "documents" in his possession which relate to a matter in issue. The comments of Brett L.J. in Cie Financière du Pacifique v. Peruvian Guano Co. (1882), 11 Q.B.D. 55 at 63 (C.A.), as to what constitutes a document relating to a matter in question have been quoted by this court on several occasions.

"It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may ‑‑ not which must ‑‑ either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. . . ."

It follows from this that an applicant need not show that a document is admissible in evidence at the trial as the condition of his obtaining an order under this rule. If a party seeking the order is able to satisfy the judge that the document, or information in a document, may relate to a matter in issue, the judge should make the order unless there are compelling reasons why he should not make it, e.g., the document is privileged. . . .

Logically, there is no reason why an application under the rule relating to hospital records should not be dealt with on the same basis as an application relating to any other document. . . . The purpose of R. 26(11) is to provide a litigant with the means of ascertaining whether documents in the possession of a non‑party ‑‑ whether they be hospital records or any other type of documents ‑‑ relate to an issue in the action. . . . [Emphasis added.]

The British Columbia Court of Appeal went on to develop a procedural mechanism which may form part of an order issued by the courts under rule 26(11) to determine whether privileged hospital records should be released to an applicant. This mechanism seeks to minimize any necessary conflict between the right of privacy and the administration of justice in an application for an order under rule 26(11) where a privilege is claimed with respect to hospital records (Halliday v. McCulloch (1986), 1986 1004 (BC CA), 1 B.C.L.R. (2d) 194 (C.A.)). Through this mechanism, the defendant is to be provided with all the relevant documents while the plaintiff's privilege is protected. This process also seeks to provide the defendant with the means of ensuring that he has the documents to which he is entitled (Beverley M. McLachlin and James P. Taylor, British Columbia Practice (2nd ed. 1991), vol. 1, at p. 26‑142‑150). The procedural mechanism outlined by the British Columbia Court of Appeal in Halliday is as follows (at pp. 198‑99):

1. Any party who makes an application under R. 26(11) in relation to medical records should, with his notice of motion, serve a demand for discovery of documents on the patient‑litigant whose records are sought, if such a demand has not already been made.

2. If the chambers judge decides that the case is one where an order under R. 26(11) should be granted, in relation to medical records, and if, on the application, the patient-litigant whose records are sought asserts a claim of litigation privilege, then the Jones v. Nelson [(1980), 1980 441 (BC CA), 24 B.C.L.R. 109 (C.A.)] form of order should be adapted, as contemplated by Seaton J.A., to the new circumstance of a claim of litigation privilege so that the order would require:

(a) the delivery by the hospital to the patient‑litigant or his solicitor, within a prescribed number of days, with a covering letter, of the same number of complete sets of certified copies of all the required records as there are parties entitled to certified copies in accordance with the order;

(b) the delivery by the hospital, at the same time as the delivery mentioned in para. (a), of copies of the covering letter, but without any copies of the required records, to all the parties, other than the patient‑litigant, who are entitled to certified copies of the records in accordance with the order;

(c) the compilation, from the required records, of a list of documents or supplementary list of documents, by the patient‑litigant or his solicitor, in accordance with R. 26(1), (13) and Form 89, including:

(i) any claim that the patient‑litigant may wish to make that a document is privileged from production, with a statement of the grounds of the privilege, and

(ii) any claim that a document should not be produced because it does not relate to any matter in question in the action within the meaning of the Peruvian Guano case [(1882), 11 Q.B.D. 55]; and

(d) the delivery by the patient‑litigant or his solicitor, within a prescribed number of days (usually running from the receipt by either of them of the certified copies), to all parties entitled to certified copies of the required records in accordance with the order of:

(i) the list of documents,

(ii) where the chambers judge considers it desirable under R. 26(3), an affidavit verifying the list of documents, and

(iii) a set of the certified copies of all of the documents, other than any document for which the patient‑litigant makes a claim of privilege, or for which a claim is made that the document does not relate to a matter in question in the action within the meaning of the Peruvian Guano case.

Thus, despite the apparent difference in the status of the right to non‑disclosure of confidential information in Quebec relative to other Canadian provinces, residing mainly in the fact that, in Quebec, the evidentiary privilege associated with the right to confidentiality is recognized and receives statutory and quasi‑constitutional protection, the common law courts have taken a remarkably similar approach to the problem of balancing an individual's right to privacy and the public interest in an efficient administration of justice, including the right to full and complete defence. The process, although more detailed, is also akin to the rules of procedure in force in Quebec. Courts in Quebec should perhaps consider the British Columbia procedural approach when faced with similar requests. Indeed, the Code of Civil Procedure is easily amenable to this way of proceeding as it confers on the courts an inherent jurisdiction to control their own process in such circumstances in order to allow them to determine properly and fairly the issues between the parties.

Conclusion

A patient's right to the confidentiality of his medical records is a relative right which the patient may waive without restriction as to scope or time. The [Quebec ]Charter as well as particular statutes permit access to medical records in certain circumstances which the procedural scheme embodied in the rules of the Code of Civil Procedure will facilitate when requested.

Here, the authorization signed by the insured at the time of application for life insurance clearly gave his insurer an unrestricted right of access to his medical records during his life or at his death, for the purpose of "risk assessment and loss analysis". Accordingly, the mis en cause hospital was not justified in refusing to give communication of such medical records and, given that authorization and the nature of the information sought under art. 402 C.C.P., the Courts had no discretion but to grant the request.

Costs

I would now like to address the issue of costs. In its original motion for access to the records relating to the insured, held by the mis en cause, the issue of costs was treated by the appellant as follows: [translation] The WHOLE without costs against the respondents, unless they contest". The respondents were then Frenette (here, the respondent), Hôpital Jean‑Talon (here, mis en cause) and the Régie de l'assurance‑maladie du Québec. Before us as before the Court of Appeal, the motion was abandoned with respect to the Régie de l'assurance‑maladie du Québec. In its "inscription in appeal" to the Quebec Court of Appeal, the appellant restricted its request to the respondent: [translation] "To ORDER the plaintiff‑respondent [here, respondent] to pay costs in both Courts".

Before this Court, the appellant's brief simply concludes: [translation] "THE WHOLE with costs throughout". Whereas, both the mis en cause and the respondent were properly notified of the proceedings before this Court, the mis en cause neither filed a factum nor appeared at the hearing. It was the respondent who contested the appellant's right to have access to the medical records of Patrick Frenette in the possession of the mis en cause. Under such circumstances, the respondent must bear the costs throughout.

Disposition

For all the reasons given above, I would allow the appeal, quash the judgment of the Court of Appeal and order the mis en cause, Hôpital Jean‑Talon, to provide the appellant with the requested access to the medical records relating to its insured according to the conclusions of the appellant's original motion:

[translation] To ORDER the respondent, Hôpital Jean‑Talon, to allow counsel for the defendant‑applicant to examine the complete medical record of Patrick Frenette, including but without limiting the generality hereof, correspondence between physicians or hospitals, the various laboratory, expert or X‑ray reports it has in its possession, by providing a copy of the said record at the expense of the defendant‑applicant, the whole to be used for the sole purpose of establishing the cause of death of Patrick Frenette as regards the case at bar and be otherwise treated in confidence.

The whole with costs throughout against the respondent.

Appeal allowed with costs.

Solicitors for the appellant: Lafleur Brown de Granpré Kronström, Montréal.

Solicitor for the respondent: Jacques Marquis, Montréal.