M. (A.) v. Ryan, [1997] 1 S.C.R. 157

M. (A.) v. Ryan, [1997] 1 S.C.R. 157

A. M. Appellant

v.

Clive Ryan and Dr. Kathleen Parfitt Respondents

Indexed as: M. (A.) v. Ryan

File No.: 24612.

1996: October 2; 1997: February 6.

Present: La Forest, L’Heureux‑Dubé, Sopinka, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for british columbia

Evidence ‑‑ Disclosure ‑‑ Counselling records ‑‑ Victim bringing civil action for damage allegedly caused by defendant’s sexual conduct ‑‑ Defendant seeking production of psychiatrist’s counselling records and notes ‑‑ Whether documents privileged ‑‑ Whether records and notes should be produced ‑‑ British Columbia Supreme Court Rules, Rule 26(11).

When the appellant was 17 years old, she underwent psychiatric treatment from the respondent R. In the course of treatment, R had sexual relations with her. He also committed acts of gross indecency in her presence. The appellant asserts that this conduct injured her and has sued R for damages. In order to deal with the difficulties allegedly caused by the sexual assault and gross indecency as well as other problems, the appellant sought psychiatric treatment from the respondent P. The appellant was concerned that communications between her and P should remain confidential, and P assured her that everything possible would be done to ensure that this was the case. At one point, the appellant’s concerns led P to refrain from taking her usual notes. At the hearing before the Master of R’s motion to obtain disclosure, P agreed to release her reports, but claimed privilege in relation to her notes. Counsel for the appellant was present. He supported P’s objections to production, but did not assert a formal claim to privilege on behalf of the appellant. The Master found that P had no privilege in the documents and ordered that they all be produced to R. The British Columbia Supreme Court affirmed that decision. P’s appeal to the Court of Appeal was allowed in part. The court ordered disclosure of P’s reporting letters and notes recording discussions between her and the appellant. The disclosure ordered was protected by four conditions: that inspection be confined to R’s solicitors and expert witnesses, and that R himself could not see them; that any person who saw the documents should not disclose their contents to anyone not entitled to inspect them; that the documents could be used only for the purposes of the litigation; and that only one copy of the notes was to be made by R’s solicitors, to be passed on as necessary to R’s expert witnesses.

Held (L’Heureux‑Dubé J. dissenting): The appeal should be dismissed.

Per La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ.: The common law principles underlying the recognition of privilege from disclosure proceed from the fundamental proposition that everyone owes a general duty to give evidence relevant to the matter before the court, so that the truth may be ascertained. To this fundamental duty, the law permits certain exceptions, known as privileges, where it can be shown that they are required by a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth. The common law permits privilege in new situations where reason, experience and application of the principles that underlie the traditional privileges so dictate. It follows that the law of privilege may evolve to reflect the social and legal realities of our time, including the Canadian Charter of Rights and Freedoms. The first three conditions for privilege for communications between a psychiatrist and the victim of a sexual assault are met in this case, since the communications were confidential, their confidence is essential to the psychiatrist‑patient relationship, and the relationship itself and the treatment it makes possible are of transcendent public importance. The fourth requirement is that the interests served by protecting the communications from disclosure outweigh the interest of pursuing the truth and disposing correctly of the litigation.

If the court considering a claim for privilege determines that a particular document or class of documents must be produced to get at the truth and prevent an unjust result, it must permit production to the extent required to avoid that result. On the other hand, the need to get at the truth and avoid injustice does not automatically negate the possibility of protection from full disclosure. An order for partial privilege will more often be appropriate in civil cases where, as here, the privacy interest is compelling. Disclosure of a limited number of documents, editing by the court to remove non‑essential material, and the imposition of conditions on who may see and copy the documents are techniques which may be used to ensure the highest degree of confidentiality and the least damage to the protected relationship, while guarding against the injustice of cloaking the truth. While a test for privilege which permits the court occasionally to reject an otherwise well‑founded claim for privilege in the interests of getting at the truth may not offer patients a guarantee that communications with their psychiatrists will never be disclosed, the assurance that disclosure will be ordered only where clearly necessary and then only to the extent necessary is likely to permit many to avail themselves of psychiatric counselling when certain disclosure might make them hesitate or decline.

It is open to a judge to conclude that psychiatrist‑patient records are privileged in appropriate circumstances. In order to determine whether privilege should be accorded to a particular document or class of documents and, if so, what conditions should attach, the judge must consider the circumstances of the privilege alleged, the documents, and the case. While it is not essential in a civil case that the judge examine every document, he or she may do so if necessary to the inquiry. A court, in a case such as this, might well consider it best to inspect the records individually to the end of weeding out those which were irrelevant to this defence, but the alternative chosen by the Court of Appeal of refusing to order production of one group of documents and imposing stringent conditions on who could see the others and what use could be made of them cannot be said to be in error and should not be disturbed.

The appellant’s alleged failure to assert privilege in the records before the Master does not deprive her of the right to claim it. If the appellant had privilege in the documents, it could be lost only by waiver, and the appellant’s conduct does not support a finding of waiver.

Where the doctrine of privilege applies, it displaces any residual discretion which might otherwise be thought to inhere in favour of the party claiming privilege. A two-step process which requires a judge to consider first privilege and then a residual discretion under Rule 26(11) would be redundant and confusing.

Per L’Heureux‑Dubé J. (dissenting): Direct disclosure of all of the information shared in the course of therapy to defence counsel and professionals who are assisting the defence constitutes a very serious breach of the plaintiff’s interests in privacy as regards these communications. While the plaintiff’s privacy interests in the records may receive some protection under the doctrine of privilege, this is only to the degree they serve the greater purpose of promoting relationships sufficiently valued by the public. McLachlin J.’s approach to partial privilege is agreed with, but it cannot displace the residual discretion to order production of documents in a manner which effects an appropriate balance of the Charter values engaged in the appeal. The source of this discretion is a common law discretionary rule governing the exercise of powers established under the B.C. Rules of Court. Since the appellant has asserted her privacy interest in private records independently of her claim for privilege, it is necessary to determine whether this interest has received adequate attention.

The traditional common law approach to the power conferred upon the courts to order the production of documents for discovery in civil proceedings holds that all relevant documents which are not privileged must be produced. An alternative approach, that taken by the Court of Appeal in this case, is one which places an outer limit on this discretion, a limit which ensures that the discovery procedures not work injustice, even where a claim of privilege has not been successful and it appears that information in the document is relevant to an issue at trial. The latter approach is more consistent with the wording of the Rules governing discovery, the origins of the procedure, the common law discretionary rules governing information regarding non-parties, and the effect of the Charter on the exercise of common law and statutory discretion in civil proceedings. In any event, the court must ensure that the approach followed reflects an adequate balance of the values underlying the Charter.

As the records at issue here are of the same nature as those mentioned in O’Connor, the appellant has established a reasonable expectation of privacy in the records. Rather than having waived her right to privacy by instituting an action, the appellant has engaged a process where her reasonable expectation of privacy must be balanced against the society’s need to ensure that such litigation be conducted fairly and effectively. The Charter-related value of a fair trial for all litigants, as a fundamental principle of justice, is also affected in such cases and must be balanced with the privacy interests of the appellant. The value of equality must further guide the procedure of discovery in tort cases involving sexual assault.

Given the distinguishing and shared features of the criminal and civil contexts for production of private records, the following procedure seems the appropriate one in the context of civil discovery. The party seeking production must notify those with an interest in the confidentiality of the records. Before a court may order production of private records to the defence for the purposes of discovery, it must first ascertain what documents are likely to be relevant to an issue at trial. In civil cases the required information will be provided by the affidavit of the party seeking the order. The court must then order production of the likely relevant documents to the court for screening and removal of any information which the court deems is not likely relevant or otherwise exempt from production given the balancing of the interests involved. A number of factors to guide in this evaluation are suggested. A judge may also ask the guardian of the documents for an inventory of those in his or her possession to assist in the screening process.

These additional procedures will not confuse trial judges. In many cases, such as the one before us, the privilege claim will be settled by the judge on the basis of affidavit evidence. Even where inspection may be required, the fourth branch of the Wigmore test should be applied to the documents as a whole. Once the privilege claim has been settled, the judge would then undertake the screening procedures described above to those documents which are not protected, provided their likely relevance has been established.

Here the Court of Appeal did not review the documents before ordering their production. By failing to screen private records in such cases, the court creates an impermissible hierarchy of Charter values, where interests in privacy and equality may be seriously affected for records or information which may provide very little if any benefit to the defence or be unnecessary to ensure the fairness of proceedings. The decision of the Court of Appeal should be set aside, except as regards the notes which were not disclosed, and the matter remitted to the Master for determination in a manner consistent with these reasons.

Cases Cited

By McLachlin J.

Not followed: Jaffee v. Redmond, 116 S. Ct. 1923 (1996), aff’g 51 F.3d 1346 (1995); referred to: Trammel v. United States, 445 U.S. 40 (1980); Slavutych v. Baker, 1975 CanLII 5 (SCC), [1976] 1 S.C.R. 254; R. v. Gruenke, 1991 CanLII 40 (SCC), [1991] 3 S.C.R. 263; RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573; Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835; Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411.

By L’Heureux‑Dubé J. (dissenting)

A. (L.L.) v. B. (A.), 1995 CanLII 52 (SCC), [1995] 4 S.C.R. 536; R. v. Gruenke, 1991 CanLII 40 (SCC), [1991] 3 S.C.R. 263; R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933; R. v. Beare, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387; Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038; Baron v. Canada, 1993 CanLII 154 (SCC), [1993] 1 S.C.R. 416; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411; R. v. Salituro, 1991 CanLII 17 (SCC), [1991] 3 S.C.R. 654; R. v. Park, 1995 CanLII 104 (SCC), [1995] 2 S.C.R. 836; Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835; Hills v. Canada (Attorney General), 1988 CanLII 67 (SCC), [1988] 1 S.C.R. 513; RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573; Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3; Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130; Dufault v. Stevens (1978), 1978 CanLII 366 (BC CA), 6 B.C.L.R. 199; Frenette v. Metropolitan Life Insurance Co., 1992 CanLII 85 (SCC), [1992] 1 S.C.R. 647; Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145.

Statutes and Regulations Cited

British Columbia Supreme Court Rules, Rule 26(10), (11).

Canadian Charter of Rights and Freedoms, ss. 1, 7, 8, 15.

Authors Cited

Cudmore, Gordon D. Choate on Discovery, 2nd ed. Scarborough, Ont.: Carswell, 1992 (loose‑leaf updated 1993).

McLachlin, Beverley M., and James P. Taylor. British Columbia Practice, 2nd ed., vol. 1. Vancouver: Butterworths, 1979 (loose‑leaf updated September 1996, issue 26).

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

APPEAL from a judgment of the British Columbia Court of Appeal (1994), 1994 CanLII 6417 (BC CA), 98 B.C.L.R. (2d) 1, 119 D.L.R. (4th) 19, [1995] 1 W.W.R. 677, 51 B.C.A.C. 135, 84 W.A.C. 135, 32 C.P.C. (3d) 66, allowing in part the respondent Parfitt’s appeal from a decision of Vickers J. (1993), 1993 CanLII 1915 (BC SC), 81 B.C.L.R. (2d) 180, [1993] 7 W.W.R. 480, affirming an order of Master Bolton (1993), 40 A.C.W.S. (3d) 730, [1993] B.C.W.L.D. 1680, ordering the respondent Parfitt to produce a copy of her records relating to the appellant. Appeal dismissed, L’Heureux‑Dubé J. dissenting.

Brian J. Wallace, Q.C., and Carolyn McCool, for the appellant.

Christopher E. Hinkson, Q.C., and William S. Clark, for the respondent Ryan.

No one appeared for the respondent Parfitt.

//McLachlin J.//

The judgment of La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ. was delivered by

1McLachlin J. -- After having been sexually assaulted by the respondent Dr. Ryan, the appellant sought counselling from a psychiatrist. The question on this appeal is whether the psychiatrist’s notes and records containing statements the appellant made in the course of treatment are protected from disclosure in a civil suit brought by the appellant against Dr. Ryan. Put in terms of principle, should a defendant’s right to relevant material to the end of testing the plaintiff’s case outweigh the plaintiff’s expectation that communications between her and her psychiatrist will be kept in confidence?

I. The Facts and History of Proceedings

2When the appellant was 17 years old, she underwent psychiatric treatment from Dr. Ryan. In the course of treatment, Dr. Ryan had sexual relations with her. He also committed acts of gross indecency in her presence. The appellant asserts that this conduct injured her and has sued Dr. Ryan for damages. Dr. Ryan does not deny that this sexual conduct occurred. He contends, however, that the appellant consented to the acts. He also takes the position that the conduct was not the cause of the injury for which the plaintiff sues.

3The appellant alleges that the sexual assault and gross indecency caused her mental distress and anguish, loss of dignity and self-esteem, humiliation and embarrassment, difficulty in forming and maintaining relationships with other persons, lasting psychological and emotional trauma, continuing fear and anxiety, foregone career and educational opportunities, inability to verbalize emotions and recollections of the events, repeated suicide attempts, severe depression and post-traumatic stress disorder. In order to deal with these difficulties as well as other problems, the appellant sought psychiatric treatment from Dr. Parfitt.

4The appellant was concerned that communications between her and Dr. Parfitt should remain confidential. Dr. Parfitt assured her that everything possible would be done to ensure that their discussions would remain confidential. At one point, the appellant’s concerns led Dr. Parfitt to refrain from taking her usual notes.

5The British Columbia Rules of Court permit each party to an action to examine the other for discovery and to obtain discovery of all documents in the possession of the other party that are relevant to the lawsuit and not protected from disclosure by privilege or some other legal exemption. If a party has not voluntarily produced a required document, the court may order that it be produced. The rules also provide for documents to be obtained from third parties. Failing voluntary production, an application for production may be brought under Rule 26(1l).

6During the examination for discovery of the appellant, counsel for Dr. Ryan requested production of Dr. Parfitt’s records and notes. The appellant’s counsel advised that they would not be produced without a court order. Accordingly, Dr. Ryan’s counsel brought a motion to obtain disclosure. At the hearing before Master Bolton, Dr. Parfitt agreed to release her reports, but claimed privilege in relation to her notes. Counsel for the appellant was present. He supported Dr. Parfitt’s objections to production, but did not assert a formal claim to privilege on behalf of the appellant.

7The Master found that Dr. Parfitt had no privilege in the documents and ordered that they all be produced to Dr. Ryan. In his view, there is no blanket privilege for communications between patient and physician. The only basis upon which privilege could be asserted would be under the principles approved by this Court for case-by-case privilege, sometimes referred to as the “Wigmore test”. The first branch of this test requires that the communications originate in confidence. The Master ruled that this was not the case here, since the appellant had been fearful throughout that the doctor’s notes would be disclosed and Dr. Parfitt had assured her only that everything possible would be done to ensure that their discussions were kept private. The Master went on to consider whether the discretion granted by the Rules of Court permitted him to accede to Dr. Parfitt’s claim for confidentiality. He found the notes to be relevant. The only remaining question was whether Dr. Parfitt’s “embarrassment” at revealing the notes outweighed this probative value. It did not, in the Master’s view. Although he acknowledged the legitimate interest of keeping patient-therapist discussions free-ranging and confidential, he held that this was not a factor that he could consider under the law as it stood.

8Dr. Parfitt appealed to the Supreme Court of British Columbia. That appeal was dismissed: (1993), 1993 CanLII 1915 (BC SC), 81 B.C.L.R. (2d) 180, [1993] 7 W.W.R. 480. Vickers J. agreed that the notes were not privileged, not on the ground that they had not been made in confidence as the Master had found, but on the ground that the public interest in the proper administration of justice outweighed confidentiality concerns where the appellant had placed the matters in issue by initiating the suit.

9Dr. Parfitt appealed to the British Columbia Court of Appeal. The appeal was allowed in part: (1994), 1994 CanLII 6417 (BC CA), 98 B.C.L.R. (2d) 1, 119 D.L.R. (4th) 19, [1995] 1 W.W.R. 677, 51 B.C.A.C. 135, 84 W.A.C. 135, 32 C.P.C. (3d) 66. Southin J.A. began by stating that she was only concerned with Dr. Parfitt’s privilege and not the plaintiff’s, since the plaintiff had not properly claimed privilege. A physician could only assert privilege if disclosure would harm the physician. Dr. Parfitt had not shown this to be the case. Therefore, no claim for privilege could be made by anyone, and the matter fell to be considered exclusively under the Rules of Court.

10Under Rule 26(1l), relevant or “material” documents should be produced unless the order is oppressive of the plaintiff or will have such an adverse effect on her that it would be unjust to order production, the Court of Appeal ruled. In applying this test, the court should consider whether the particular invasion of privacy is necessary to the proper administration of justice and, if so, whether terms are appropriate to limit that invasion. On the one hand, a plaintiff should not be “scared away” from suing by fear of disclosure. On the other hand, a defendant should not be deprived of an assessment of the true loss caused by the alleged wrong. There is no perfect balance to be struck, in the court`s view.

11Southin J.A. ordered disclosure of Dr. Parfitt’s reporting letters and notes recording discussions between her and the appellant. Southin J.A. did not order disclosure of Dr. Parfitt’s personal notes which she uses to make sense of what the patient is telling her. These notes were not disclosed because the appellant assured the court that Dr. Parfitt would not be called at trial and therefore her diagnosis was “of no moment” (p. 19 B.C.L.R.). The disclosure ordered was protected by four conditions: that inspection be confined to Dr. Ryan’s solicitors and expert witnesses, and that Dr. Ryan himself could not see them; that any person who saw the documents should not disclose their contents to anyone not entitled to inspect them; that the documents could be used only for the purposes of the litigation; and that only one copy of the notes was to be made by Dr. Ryan’s solicitors, to be passed on as necessary to Dr. Ryan’s expert witnesses.

12The appellant objects to this order for limited production and appeals to this Court.

II. The Legislation

13 British Columbia Supreme Court Rules, Rule 26(11)

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. An order under Rule 41(16) in respect of an order under this subrule may be made if that order is endorsed with an acknowledgment by the person in possession or control of the document that the person has no objection to the terms of the proposed order.

III. Preliminary Issues

14 The findings of the courts below raise three preliminary issues. The first is whether the appellant’s alleged failure to assert privilege in the records before the Master deprives her of the right to claim it. I respectfully dissent from the Court of Appeal’s view that it did. If the appellant had privilege in the documents, it could be lost only by waiver. The appellant’s conduct does not support a finding of waiver. It is true that she did not claim privilege to the notes and records at issue in her affidavit of documents. However, the notes and records were not in her possession but Dr. Parfitt’s. The argument that they were technically in her control and hence should have been mentioned establishes at best omission from the affidavit of documents, not a conscious waiver of privilege. The motion for production before the Master was directed not at the appellant but at Dr. Parfitt. As a result, the appellant was not called upon directly to assert privilege in the documents. However, she appeared through counsel and supported Dr. Parfitt’s claim for privilege. Far from waiving privilege, the appellant has asserted it throughout the proceedings.

15 A second preliminary issue concerns the relationship between the Rules of Court and the common law rule of privilege. In my view, the present appeal falls to be decided solely on the law of privilege. Where the doctrine of privilege applies, it displaces any residual discretion which might otherwise be thought to inhere in favour of the party claiming privilege. A two-step process which requires a judge to consider first privilege and then a residual discretion under Rule 26(1l) would be redundant and confusing.

16 Where the person objecting to production is a party to the action and privilege is raised, there is no need for a supplementary discretion under Rule 26(11), since in considering whether privilege exists on a case-by-case basis, the judge must take into account the interest of the person being asked to disclose. The fourth branch of the Wigmore test for privilege requires the judge to consider whether the interests served by protecting the communications from disclosure outweigh the interest in getting at the truth and correctly disposing of the litigation. This means that the complainant’s privacy interest and interest in maintaining a productive and healing relationship with her psychiatrist must be considered and weighed in determining whether privilege lies. The fact that her privacy interest arises and hence falls to be considered in the context of her relationship to her psychiatrist does not negate the fact that what is at issue is her privacy interest and whether it should, in the circumstances of the case, prevail over the defendant’s right to disclosure. It thus becomes unnecessary to reconsider the same matters after having decided whether privilege lies. Having determined the issue of privilege, nothing remains to be considered under the Rule.

17 Requiring the judge to reconsider the matter under a residual discretion conferred by Rule 26(11) according to a different methodology would, moreover, be confusing for trial judges. Even more serious, it might on occasion result in a conflicting conclusion. This would amount to a procedural rule enacted not by the Legislature but by Order in Council, trumping the common law. Such a result would be wholly inappropriate.

18 A third preliminary issue concerns the distinction between absolute or blanket privilege, on the one hand, and partial privilege on the other. While the traditional common law categories conceived privilege as an absolute, all-or-nothing proposition, more recent jurisprudence recognizes the appropriateness in many situations of partial privilege. The degree of protection conferred by the privilege may be absolute or partial, depending on what is required to strike the proper balance between the interest in protecting the communication from disclosure and the interest in proper disposition of the litigation. Partial privilege may signify that only some of the documents in a given class must be produced. Documents should be considered individually or by sub-groups on a “case-by-case” basis.

IV. General Principles

19 The common law principles underlying the recognition of privilege from disclosure are simply stated. They proceed from the fundamental proposition that everyone owes a general duty to give evidence relevant to the matter before the court, so that the truth may be ascertained. To this fundamental duty, the law permits certain exceptions, known as privileges, where it can be shown that they are required by a “public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth”: Trammel v. United States, 445 U.S. 40 (1980), at p. 50.

20 While the circumstances giving rise to a privilege were once thought to be fixed by categories defined in previous centuries -- categories that do not include communications between a psychiatrist and her patient -- it is now accepted that the common law permits privilege in new situations where reason, experience and application of the principles that underlie the traditional privileges so dictate: Slavutych v. Baker, 1975 CanLII 5 (SCC), [1976] 1 S.C.R. 254; R. v. Gruenke, 1991 CanLII 40 (SCC), [1991] 3 S.C.R. 263, at p. 286. The applicable principles are derived from those set forth in Wigmore on Evidence, vol. 8 (McNaughton rev. 1961), § 2285. First, the communication must originate in a confidence. Second, the confidence must be essential to the relationship in which the communication arises. Third, the relationship must be one which should be “sedulously fostered” in the public good. Finally, if all these requirements are met, the court must consider whether the interests served by protecting the communications from disclosure outweigh the interest in getting at the truth and disposing correctly of the litigation.

21 It follows that the law of privilege may evolve to reflect the social and legal realities of our time. One such reality is the law`s increasing concern with the wrongs perpetrated by sexual abuse and the serious effect such abuse has on the health and productivity of the many members of our society it victimizes. Another modern reality is the extension of medical assistance from treatment of its physical effects to treatment of its mental and emotional aftermath through techniques such as psychiatric counselling. Yet another development of recent vintage which may be considered in connection with new claims for privilege is the Canadian Charter of Rights and Freedoms, adopted in 1982: RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573, at pp. 592-93; Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, at pp. 876-77; Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at para. 121.

22 I should pause here to note that in looking to the Charter, it is important to bear in mind the distinction drawn by this Court between actually applying the Charter to the common law, on the one hand, and ensuring that the common law reflects Charter values, on the other. As Cory J. stated in Hill, supra, at paras. 93 and 95:

When determining how the Charter applies to the common law, it is important to distinguish between those cases in which the constitutionality of government action is challenged, and those in which there is no government action involved. It is important not to import into private litigation the analysis which applies in cases involving government action.

The most that the private litigant can do is argue that the common law is inconsistent with Charter values. It is very important to draw this distinction between Charter rights and Charter values. Care must be taken not to expand the application of the Charter beyond that established by s. 32(1), either by creating new causes of action, or by subjecting all court orders to Charter scrutiny. Therefore, in the context of civil litigation involving only private parties, the Charter will “apply” to the common law only to the extent that the common law is found to be inconsistent with Charter values. [Emphasis in original.]

23 While the facts of Hill involved an attempt to mount a Charter challenge to the common law rules of defamation, I am of the view that Cory J.’s comments are equally applicable to the common law of privilege at issue in this case. In view of the purely private nature of the litigation at bar, the Charter does not “apply” per se. Nevertheless, ensuring that the common law of privilege develops in accordance with “Charter values” requires that the existing rules be scrutinized to ensure that they reflect the values the Charter enshrines. This does not mean that the rules of privilege can be abrogated entirely and replaced with a new form of discretion governing disclosure. Rather, it means that the basic structure of the common law privilege analysis must remain intact, even if particular rules which are applied within that structure must be modified and updated to reflect emerging social realities.

V. Privilege for Communications Between Psychiatrist and Patient

24 The first requirement for privilege is that the communications at issue have originated in a confidence that they will not be disclosed. The Master held that this condition was not met because both the appellant and Dr. Parfitt had concerns that notwithstanding their desire for confidentiality, the records might someday be ordered disclosed in the course of litigation. With respect, I do not agree. The communications were made in confidence. The appellant stipulated that they should remain confidential and Dr. Parfitt agreed that she would do everything possible to keep them confidential. The possibility that a court might order them disclosed at some future date over their objections does not change the fact that the communications were made in confidence. With the possible exception of communications falling in the traditional categories, there can never be an absolute guarantee of confidentiality; there is always the possibility that a court may order disclosure. Even for documents within the traditional categories, inadvertent disclosure is always a possibility. If the apprehended possibility of disclosure negated privilege, privilege would seldom if ever be found.

25 The second requirement -- that the element of confidentiality be essential to the full and satisfactory maintenance of the relation between the parties to the communication -- is clearly satisfied in the case at bar. It is not disputed that Dr. Parfitt’s practice in general and her ability to help the appellant in particular required that she hold her discussions with the appellant in confidence. Dr. Parfitt’s evidence establishes that confidentiality is essential to the continued existence and effectiveness of the therapeutic relations between a psychiatrist and a patient seeking treatment for the psychiatric harm resulting from sexual abuse. Once psychiatrist-patient confidentiality is broken and the psychiatrist becomes involved in the patient’s external world, the “frame” of the therapy is broken. At that point, it is Dr. Parfitt’s practice to discontinue psychotherapy with the patient. The result is both confusing and damaging to the patient. At a time when she would normally find support in the therapeutic relationship, as during the trial, she finds herself without support. In the result, the patient’s treatment may cease, her distrustfulness be exacerbated, and her personal and work relations be adversely affected.

26 The appellant too sees confidentiality as essential to her relationship with Dr. Parfitt. She insisted from the first that her communications to Dr. Parfitt be held in confidence, suggesting that this was a condition of her entering and continuing treatment. The fact that she and Dr. Parfitt feared the possibility of court-ordered disclosure at some future date does not negate the fact that confidentiality was essential “to the full and satisfactory maintenance” of their relationship.

27 The third requirement -- that the relation must be one which in the opinion of the community ought to be sedulously fostered -- is equally satisfied. Victims of sexual abuse often suffer serious trauma, which, left untreated, may mar their entire lives. It is widely accepted that it is in the interests of the victim and society that such help be obtained. The mental health of the citizenry, no less than its physical health, is a public good of great importance. Just as it is in the interest of the sexual abuse victim to be restored to full and healthy functioning, so is it in the interest of the public that she take her place as a healthy and productive member of society.

28 It may thus be concluded that the first three conditions for privilege for communications between a psychiatrist and the victim of a sexual assault are met in the case at bar. The communications were confidential. Their confidence is essential to the psychiatrist-patient relationship. The relationship itself and the treatment it makes possible are of transcendent public importance.

29 The fourth requirement is that the interests served by protecting the communications from disclosure outweigh the interest of pursuing the truth and disposing correctly of the litigation. This requires first an assessment of the interests served by protecting the communications from disclosure. These include injury to the appellant’s ongoing relationship with Dr. Parfitt and her future treatment. They also include the effect that a finding of no privilege would have on the ability of other persons suffering from similar trauma to obtain needed treatment and of psychiatrists to provide it. The interests served by non-disclosure must extend to any effect on society of the failure of individuals to obtain treatment restoring them to healthy and contributing members of society. Finally, the interests served by protection from disclosure must include the privacy interest of the person claiming privilege and inequalities which may be perpetuated by the absence of protection.

30 As noted, the common law must develop in a way that reflects emerging Charter values. It follows that the factors balanced under the fourth part of the test for privilege should be updated to reflect relevant Charter values. One such value is the interest affirmed by s. 8 of the Charter of each person in privacy. Another is the right of every person embodied in s. 15 of the Charter to equal treatment and benefit of the law. A rule of privilege which fails to protect confidential doctor/patient communications in the context of an action arising out of sexual assault perpetuates the disadvantage felt by victims of sexual assault, often women. The intimate nature of sexual assault heightens the privacy concerns of the victim and may increase, if automatic disclosure is the rule, the difficulty of obtaining redress for the wrong. The victim of a sexual assault is thus placed in a disadvantaged position as compared with the victim of a different wrong. The result may be that the victim of sexual assault does not obtain the equal benefit of the law to which s. 15 of the Charter entitles her. She is doubly victimized, initially by the sexual assault and later by the price she must pay to claim redress -- redress which in some cases may be part of her program of therapy. These are factors which may properly be considered in determining the interests served by an order for protection from disclosure of confidential patient-psychiatrist communications in sexual assault cases.

31 These criteria, applied to the case at bar, demonstrate a compelling interest in protecting the communications at issue from disclosure. More, however, is required to establish privilege. For privilege to exist, it must be shown that the benefit that inures from privilege, however great it may seem, in fact outweighs the interest in the correct disposal of the litigation.

32 At this stage, the court considering an application for privilege must balance one alternative against the other. The exercise is essentially one of common sense and good judgment. This said, it is important to establish the outer limits of acceptability. I for one cannot accept the proposition that “occasional injustice” should be accepted as the price of the privilege. It is true that the traditional categories of privilege, cast as they are in absolute all-or-nothing terms, necessarily run the risk of occasional injustice. But that does not mean that courts, in invoking new privileges, should lightly condone its extension. In the words of Scalia J. (dissenting) in Jaffee v. Redmond, 116 S. Ct. 1923 (1996), at p. 1941:

It is no small matter to say that, in some cases, our federal courts will be the tools of injustice rather than unearth the truth where it is available to be found. The common law has identified a few instances where that is tolerable. Perhaps Congress may conclude that it is also tolerable. . . . But that conclusion assuredly does not burst upon the mind with such clarity that a judgment in favor of suppressing the truth ought to be pronounced by this honorable Court.

33 It follows that if the court considering a claim for privilege determines that a particular document or class of documents must be produced to get at the truth and prevent an unjust verdict, it must permit production to the extent required to avoid that result. On the other hand, the need to get at the truth and avoid injustice does not automatically negate the possibility of protection from full disclosure. In some cases, the court may well decide that the truth permits of nothing less than full production. This said, I would venture to say that an order for partial privilege will more often be appropriate in civil cases where, as here, the privacy interest is compelling. Disclosure of a limited number of documents, editing by the court to remove non-essential material, and the imposition of conditions on who may see and copy the documents are techniques which may be used to ensure the highest degree of confidentiality and the least damage to the protected relationship, while guarding against the injustice of cloaking the truth.

34 In taking this approach, I respectfully decline to follow the all-or-nothing approach adopted by the majority of the Supreme Court of the United States of endorsing an absolute privilege for all psychotherapeutic records in Jaffee v. Redmond, supra. The Court of Appeals in the judgment there appealed from, 51 F.3d 1346 (1995), had held that the privilege could be denied if “in the interests of justice, the evidentiary need for the disclosure of the contents of a patient’s counseling sessions outweighs that patient’s privacy interests” (p. 1357). The majority in the Supreme Court, per Stevens J., rejected that approach, stating that to make confidentiality depend upon a trial judge’s later evaluation of the relative importance of the patient’s interest in privacy and the evidentiary need for disclosure would be “little better than no privilege at all” (p. 1932).

35 It must be conceded that a test for privilege which permits the court to occasionally reject an otherwise well-founded claim for privilege in the interests of getting at the truth may not offer patients a guarantee that communications with their psychiatrists will never be disclosed. On the other hand, the assurance that disclosure will be ordered only where clearly necessary and then only to the extent necessary is likely to permit many to avail themselves of psychiatric counselling when certain disclosure might make them hesitate or decline. The facts in this case demonstrate as much. I am reinforced in this view by the fact, as Scalia J. points out in his dissenting reasons in Jaffee v. Redmond, that of the 50 states and the District of Columbia which have enacted some form of psychotherapist privilege, none have adopted it in absolute form. All have found it necessary to specify circumstances in which it will not apply, usually related to the need to get at the truth in vital situations. Partial privilege, in the views of these legislators, can be effective.

36 The view that privilege may exist where the interest in protecting the privacy of the records is compelling and the threat to proper disposition of the litigation either is not apparent or can be offset by partial or conditional discovery is consistent with this Court’s view in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411. The majority there did not deny that privilege in psychotherapeutic records may exist in appropriate circumstances. Without referring directly to privilege, it developed a test for production of third party therapeutic and other records which balances the competing interests by reference to a number of factors including the right of the accused to full answer and defence and the right of the complainant to privacy. Just as justice requires that the accused in a criminal case be permitted to answer the Crown’s case, so justice requires that a defendant in a civil suit be permitted to answer the plaintiff’s case. In deciding whether he or she is entitled to production of confidential documents, this requirement must be balanced against the privacy interest of the complainant. This said, the interest in disclosure of a defendant in a civil suit may be less compelling than the parallel interest of an accused charged with a crime. The defendant in a civil suit stands to lose money and repute; the accused in a criminal proceeding stands to lose his or her very liberty. As a consequence, the balance between the interest in disclosure and the complainant’s interest in privacy may be struck at a different level in the civil and criminal case; documents produced in a criminal case may not always be producible in a civil case, where the privacy interest of the complainant may more easily outweigh the defendant’s interest in production.

37 My conclusion is that it is open to a judge to conclude that psychiatrist-patient records are privileged in appropriate circumstances. Once the first three requirements are met and a compelling prima facie case for protection is established, the focus will be on the balancing under the fourth head. A document relevant to a defence or claim may be required to be disclosed, notwithstanding the high interest of the plaintiff in keeping it confidential. On the other hand, documents of questionable relevance or which contain information available from other sources may be declared privileged. The result depends on the balance of the competing interests of disclosure and privacy in each case. It must be borne in mind that in most cases, the majority of the communications between a psychiatrist and her patient will have little or no bearing on the case at bar and can safely be excluded from production. Fishing expeditions are not appropriate where there is a compelling privacy interest at stake, even at the discovery stage. Finally, where justice requires that communications be disclosed, the court should consider qualifying the disclosure by imposing limits aimed at permitting the opponent to have the access justice requires while preserving the confidential nature of the documents to the greatest degree possible.

38 It remains to consider the argument that by commencing the proceedings against the respondent Dr. Ryan, the appellant has forfeited her right to confidentiality. I accept that a litigant must accept such intrusions upon her privacy as are necessary to enable the judge or jury to get to the truth and render a just verdict. But I do not accept that by claiming such damages as the law allows, a litigant grants her opponent a licence to delve into private aspects of her life which need not be probed for the proper disposition of the litigation.

VI. Procedure for Ascertaining Privilege

39 In order to determine whether privilege should be accorded to a particular document or class of documents and, if so, what conditions should attach, the judge must consider the circumstances of the privilege alleged, the documents, and the case. While it is not essential in a civil case such as this that the judge examine every document, the court may do so if necessary to the inquiry. On the other hand, a judge does not necessarily err by proceeding on affidavit material indicating the nature of the information and its expected relevance without inspecting each document individually. The requirement that the court minutely examine numerous or lengthy documents may prove time-consuming, expensive and delay the resolution of the litigation. Where necessary to the proper determination of the claim for privilege, it must be undertaken. But I would not lay down an absolute rule that as a matter of law, the judge must personally inspect every document at issue in every case. Where the judge is satisfied on reasonable grounds that the interests at stake can properly be balanced without individual examination of each document, failure to do so does not constitute error of law.

VII. Application to This Case

40 The Court of Appeal declined to order production of Dr. Parfitt’s notes to herself on the ground that they were unnecessary given that she would not be called to testify. It ordered the production of notes and records of consultations with the appellant, but under stringent conditions. While the Court of Appeal did not proceed on the basis of privilege, its orders are supported by the principles relating to privilege that I have attempted to set forth.

41 The interest in preserving the confidentiality of the communications here at issue was, as discussed, compelling. On the other hand, the communications might be expected to bear on the critical issue of the extent to which the respondent Dr. Ryan’s conduct caused the difficulties the appellant was experiencing. A court, in a case such as this, might well consider it best to inspect the records individually to the end of weeding out those which were irrelevant to this defence. However, the alternative chosen by the Court of Appeal in this case of refusing to order production of one group of documents and imposing stringent conditions on who could see the others and what use could be made of them cannot be said to be in error. In the end, the only persons to see the documents in question will be the lawyers for the respondent Dr. Ryan and his expert witnesses. Copies will not be made, and disclosure of the contents to other people will not be permitted. In short, the plaintiff’s private disclosures to her psychiatrist will be disclosed only to a small group of trustworthy professionals, much in the fashion that confidential medical records may be disclosed in a hospital setting. I am not persuaded that the order of the Court of Appeal should be disturbed.

VIII. Conclusion

42 I would dismiss the appeal with costs.

//L’Heureux-Dubé J.//

The following are the reasons delivered by

43 L’Heureux-Dubé J. (dissenting) -- This appeal raises the questions of whether and to what extent a psychiatrist’s notes and records, made in the course of treatment, of a plaintiff in a tort action resulting from sexual assault, are protected from disclosure. In the case before us, the civil suit was brought by that plaintiff against the perpetrator of the assault, himself a psychiatrist. He had earlier been convicted of “indecent assault”, which was the applicable offence in force at the time the assaults occurred.

44 I have had the advantage of reading the reasons of Justice McLachlin. As my colleague has recounted the facts and proceedings, I need not review them here. In essence, the plaintiff asserts her right to privacy in challenging an order to produce the records of the therapist, whom she saw subsequent to the occurrence of the offence, for the purposes of discovery in her civil claim for damages resulting from the sexual assault. In so doing, the appellant has raised two issues. The first relates to the privileged nature of the communications between her and her psychiatrist. The second concerns her right to privacy in the records kept by that psychiatrist of these communications.

45 In addressing the first issue, McLachlin J. finds that the appellant has in no way waived her claim to privilege. My colleague also holds that the common law rules governing privilege must be updated to reflect both modern circumstances and the values which underlie the Canadian Charter of Rights and Freedoms. Accordingly, McLachlin J. concludes that partial privilege, a variation of a case-by-case privilege, is appropriate in such cases. Although I agree in principle, I disagree with the result which my colleague reaches and the process which she approves in order to deal appropriately with this issue. Furthermore, I wish to provide additional reasons and more extensive reference to recent jurisprudence of this Court which has addressed the issue of privileged communications in circumstances similar to those which surround this appeal.

46 As regards the second issue raised by the appellant, McLachlin J. concludes that adapting the common law rules governing privilege is the only appropriate means through which to dispose of this appeal. Where a claim of privilege is unsuccessful, my colleague concludes that the court should have no further discretion to control the process of discovery so as to protect private records or parts thereof from disclosure. With this conclusion, I firmly disagree. The assertion by a plaintiff of her privacy interests in the records affected by the production order requires a re-evaluation of the approaches to discovery taken by the Master, Chamber judge, and Court of Appeal in this case. We must ensure that their exercise of the discretion to order production conforms with the values underlying the Charter.

47 After considering the wording of the British Columbia Rules of Court governing discovery, the history of the procedure, the legislative and regulatory sources of the Rules, and the common law approach to exercising this power, I conclude that whenever a court orders production of documents, it is nonetheless exercising a discretion. While the courts may have developed an approach to this discretion which refrains from unduly limiting the procedures except where required by privilege, this discretion has not been eliminated by the common law. Moreover, I agree with the B.C. Court of Appeal’s assertion that, in exercising this discretion, the court may further control the discovery procedures to ensure that they do not cause injustice to one of the parties.

48 The exercise of a judicial discretion, whether common law or statutory in origin, must comport with the values underlying the Charter. In applying this principle, this Court has recently held, albeit in the criminal law context, that a court must exercise its discretion to order the production of private records in a manner which comports with the Charter values underlying the rights to privacy, equality, and a fair trial. These same values are engaged in the instant appeal in the context of civil proceedings. Keeping in mind the important differences between the criminal and civil contexts, I nonetheless find that the discretion as exercised by the Court of Appeal in the case before us gave insufficient regard to the values of privacy and equality. My colleague has affirmed the process followed by the Court of Appeal in dealing with the psychiatrist’s notes and records in this case. On the basis of the conclusion I reach on this issue, I find myself unable to agree with this result.

I. Principles

A. Privilege

49 In A.(L.L.) v. B.(A.), 1995 CanLII 52 (SCC), [1995] 4 S.C.R. 536 (hereinafter L.L.A.), our Court unanimously found that a complainant in a case involving the criminal offence of sexual assault may obtain protection from disclosure of private records to the defence via a case-by-case privilege. In that case, various institutions which had been involved in providing counselling to the complainant after the alleged assault were ordered to produce the records of this treatment to the defence. The order was appealed to this Court on the ground that the records were privileged.

50 Writing for the Court on this issue, and with reference to the majority reasons in the recent case of R. v. Gruenke, 1991 CanLII 40 (SCC), [1991] 3 S.C.R. 263, I observed, at pp. 562-63, that our Court has recognized two common law categories of privilege, a “class” privilege and a “case-by-case” privilege:

A class privilege entails a prima facie presumption that such communications are inadmissible or not subject to disclosure in criminal or civil proceedings and the onus lies on the party seeking disclosure of the information to show that an overriding interest commands disclosure. In order for the privilege to attach, compelling policy reasons must exist, similar to those underlying the privilege for solicitor-client communications, and the relationship must be inextricably linked with the justice system.

In a case-by-case privilege, the communications are not privileged unless the party opposing disclosure can show they should be privileged according to the fourfold utilitarian test elaborated by Wigmore (Evidence in Trials at Common Law (McNaughton rev. 1961), vol. 8, at § 2285). [Emphasis added.]

51 After reviewing developments in the law of privilege in Canada and other jurisdictions, the Court rejected the notion of a class privilege shielding all such private records from disclosure. This conclusion was reached after a careful weighing of the policy arguments for a class privilege in this context against the detrimental effects of such a privilege on the administration of our justice system. The policy arguments supporting a class privilege included: the need for confidentiality in effective therapy for sexual assault victims, the deterrent effect of potential disclosure on both the seeking of counselling and consequent making of complaints, the inherent unreliability of such records, and the need to reflect the values enshrined in the Charter, particularly those ensuring equality and privacy, in our development of the common law. The following countervailing concerns are also involved: the necessity of relevant information in the truth-finding process which is the foundation of our justice system, the possibility that records will contain highly relevant information, the effects of a blanket protection from disclosure of relevant information on the accused’s constitutional right to make full answer and defence, and the difficulty in delimiting this class of relationships.

52 Having weighed these two sets of arguments, the Court held, at p. 580, that while a class privilege for private records was not warranted, a case-by-case privilege might well be established, provided that the Wigmore criteria were met:

Given the nature of the relationship between counsellors and sexual assault complainants, the first three criteria will easily be met in most cases. . . . The fourth criterion involves the balancing of the relative values which favour finding these records privileged with those which favour production, if, of course, the records are found to be likely relevant either to an issue in the proceedings or to the competence of the witness to testify (see O’Connor, supra). This is where the arguments for and against production, which I have discussed earlier, will be examined.

The fourth branch of the Wigmore test requires the party claiming privilege to establish that the injury which would inure to the relationship in question is greater than the benefit gained for the correct disposal of the civil or criminal litigation. The decision in L.L.A., supra, has thus delineated the various public policy factors which must be weighed in determining whether this criterion has been satisfied. It has also held that the likely relevance of the documents must be established by the defence before the court will undertake the balancing required by the fourth Wigmore criterion.

53 Case-by-case privilege was not, however, seen as a desirable source of protection, for its ad hoc nature would interfere with the primary policy objective which underlies privilege in this context. Privilege is advocated in these cases on the grounds that its assurance of confidential counselling will encourage complainants to seek therapy and to report the assault. The Court held that the procedural restrictions on disclosure, which are dictated by the Charter values underlying the complainant’s rights to privacy and equality, would better fulfill these objectives.

54 In the instant appeal, McLachlin J. has developed a form of case-by-case privilege which she terms “partial privilege”. It allows the application of the Wigmore test not only to a particular relationship in a specific set of circumstances, which is what was envisioned in L.L.A., supra, but also to classes of records, individual documents, or even parts thereof. In applying the fourth part of this test, the judge is called upon to balance the interest served by non-disclosure, that is, the promotion of the confidential relationship in which the records arose, with the interest in the correct disposal of the litigation. In so doing, the judge has the broad discretion to decide whether and to what extent to order the disclosure of certain documents. If the records contain information which is clearly relevant to a defence or claim, and without which a false result may ensue, the judge may order their disclosure. However, it is open to him or her to place limits on the reproduction and dissemination of the records once disclosed, to inspect the documents before releasing them to the defence, and/or to remove irrelevant or unnecessary information from the records.

55 In addition to my colleague’s elaboration of the appropriate approach, one must not lose sight of two principles which were established by this Court in L.L.A., supra, and which apply mutatis mutandis in a civil proceeding as well. First, before a judge may apply the fourth branch of the Wigmore test, the defence must establish the likely relevance of the documents, whether to an issue at trial or to the competence of a witness to testify. This threshold will not be overcome by mere speculation as to the contents of the records or biased hypotheses about such plaintiffs. Second, in undertaking the balancing of public policy concerns under the fourth branch of the Wigmore test, factors in addition to those mentioned by my colleague must be considered. These include the inherent unreliability of such records given the purposes for which they are made and the deterrent effect the lack of protection will have on the seeking of civil compensation for the injury sustained.

56 “Partial privilege” was nonetheless found by McLachlin J. to uphold the order of the Court of Appeal in the case before us. This order allowed direct and complete disclosure to the defence of all of the records Dr. Parfitt had made of her interactions with the appellant, albeit subject to certain restrictions on their reproduction and dissemination. Only those notes which Dr. Parfitt had made to herself for diagnostic purposes were withheld from the defence. In deciding which documents to order produced, the Court of Appeal relied on the affidavits which the parties had submitted in conjunction with the proceedings. Direct disclosure of all of the information shared in the course of therapy to professionals who are assisting the defence, including defence counsel, constitutes a very serious breach of the plaintiff’s interests in privacy as regards these communications.

57 Although greatly expanded and updated to comport with both modern circumstances and Charter values, as a substantive rule applied on a case-by-case basis, the doctrine of “partial privilege” remains fundamentally ad hoc in nature. As such, it fails to provide an adequate means of fulfilling its own primary policy rationale. In this context, the doctrine’s policy objectives are to ensure that plaintiffs who are victims of sexual assault not be discouraged from seeking therapy if they may potentially wish to take civil action or, if they have already received counselling, unduly deterred from seeking compensation for the injury sustained. As defendants in such cases will likely challenge the cause and quantum of the injury claimed, it may be relatively easy for them to establish, in certain cases, that some information shared in counselling sessions will be likely relevant to an issue at trial. At the same time, much of the information contained in such private records may be completely irrelevant or of extremely limited probative value and/or highly prejudicial. If the result is that all records, and thus all of the information they contain, are released to the defence, albeit subject to restrictions, many plaintiffs will be deterred from undertaking civil suits and/or therapy to address the assault’s effects on them.

58 Moreover, while the doctrine of privilege allows for some balancing of interests, we must not forget that its aim is to balance the public’s interest in fostering particular relationships with its interest in correctly disposing of legal disputes. The four criteria involved in the Wigmore test reflect this policy rationale. As such, the plaintiff’s privacy interests in the records may receive some protection, but only to the degree that they serve the greater purpose of promoting a particular relationship. This relationship must be found to be sufficiently confidential, dependent upon such confidence, and valued by the community to warrant the balancing of its value with potential effects on the trial.

59 Where a judge determines that any or all of the first three Wigmore criteria are not fulfilled, the plaintiff’s privacy interests are no longer considered. Moreover, while her interests in privacy are balanced under the fourth branch, they are only valued to the degree that they affect the relationship in which the communications arose. This doctrine does nothing to ensure protection of her privacy interests in records which, although containing information of a highly private nature, may not have arisen in the context of a relationship which meets the strict requirements for privilege. For this reason, as the plaintiff has asserted her privacy interest in private records independently of her claim for privilege, we are required to determine whether this interest has received adequate attention.

B. Balancing Charter Values

60 In addition to her privilege claim, the appellant is asserting a right to privacy in the documents. The court order to produce the documents was made on the basis of a regulatory “Rule of Court” Rule 26 which grants a broad discretion to the courts to control discovery procedures. This rule is authorized by the executive branch of the British Columbia government through statute and regulation and has the objective of controlling the process of discovery between private parties to civil litigation.

61 As will be explained in more detail, in exercising their powers under this rule, courts have developed two somewhat conflicting common law approaches. While differing in the extent to which a court may control the production of documents, both of these approaches establish a structured discretion on the part of the court in making this determination. Thus, in the context of civil discovery, while the power in the courts has been created by the regulatory rule, common law rules to control and govern this discretion have been developed. The context of discovery may provide a somewhat unique interaction of the common law and procedural rules of court, in that the substantive common law as to what is or is not discoverable has had to develop in response to this fairly modern procedural entitlement. This is different from the procedures in the present rules which govern the determination of the admissibility of evidence, for example.

62 This Court has held that where a provision or regulation or, alternatively, a common law rule establishes discretion in terms which allow judicial action respectful of the Charter, the provision or rule will not be struck down: R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933, per L’Heureux-Dubé J., dissenting; R. v. Beare, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387, per La Forest J. for the Court, at p. 410; see also Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038, per Lamer J. (as he then was), at p. 1078. Indeed, a residual discretion may be required in some instances to ensure that a legislative provision or common law rule not violate the Charter: Baron v. Canada, 1993 CanLII 154 (SCC), [1993] 1 S.C.R. 416. It is rather the exercise of discretion that the courts will scrutinize.

63 In many cases, the exercise of discretion, through the making of an order, for example, will not constitute direct state action and therefore cannot be subject to the same constitutional scrutiny as legislation or the acts of state officials. Where this occurs, this Court has nonetheless found that the exercise of discretion must adequately reflect the values underlying the Charter. In the criminal context, a proportional balance of the effects on Charter rights is required: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411; L.L.A., supra; see also R. v. Salituro, 1991 CanLII 17 (SCC), [1991] 3 S.C.R. 654; R. v. Park, 1995 CanLII 104 (SCC), [1995] 2 S.C.R. 836. In cases of non-criminal law powers exercised in the context of legislation with a public purpose or other such state action, the court must also reflect a balance of Charter values when exercising a statutory or common law discretion: Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, per Lamer C.J., for the majority, at p. 875; Baron v. Canada, supra; Hills v. Canada (Attorney General), 1988 CanLII 67 (SCC), [1988] 1 S.C.R. 513, at p. 558.

64 The fact that the discretion exercised here involves procedural entitlements in a civil dispute between private parties rather than a criminal trial does not fundamentally alter the analysis. There are a number of civil cases involving private parties which found that the discretionary powers granted by statute or a common law rule must be exercised in a manner which comports with the values underlying the Charter: RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573, per McIntyre J. at p. 603, Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, per L’Heureux-Dubé, dissenting, at pp. 71 and 92; Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R 1130. In such cases, however, the balancing of values may be somewhat more flexible than in those involving the state as a party: Hill, supra, per Cory J., at paras. 94 and 97. In the appeal before us, the appellant is thus entitled to challenge the exercise of discretion by the trial judge and the Court of Appeal on the grounds that they did not reflect an appropriate balance of Charter values.

65 A three-step analysis is required to determine whether the appellant can succeed in her claim. First, the court must identify the source of the common law or legislative discretion that has been exercised. Second, it must identify the Charter values that are engaged in or affected by the exercise of this discretion. Finally, it must determine whether and in what manner the exercise of discretion needs to be altered to reflect an appropriate balance of these Charter values. In the instant appeal, we are aided greatly in the second and third tasks by the analysis already undertaken by this Court in O’Connor, supra, which addressed a similar procedural discretion, albeit in the context of a criminal prosecution.

(i) Discretion

66 The traditional common law approach to the power conferred upon courts to order the production of documents for discovery in civil proceedings holds that “all relevant documents which are not privileged must be produced”: Beverley M. McLachlin and James P. Taylor, British Columbia Practice (2nd ed. 1996 (loose-leaf)), vol. 1, at p. 26-1. In British Columbia, there has nonetheless been some dispute as to the scope of this judicial discretion:

R 26(10) provides that the court “may” order the production of documents for inspection and copying by any party or by the court “at a time and place and in the manner it thinks just”. One interpretation of “may” is that the order will go, subject to terms, if the documents are shown to be relevant and no claim to privilege is established. Another interpretation would be that “may” confers a wider discretion.

(McLachlin and Taylor, supra, at p. 26-115.)

Madame Justice McLachlin and Professor Taylor refer to the Court of Appeal decision in the case before us, (1994), 1994 CanLII 6417 (BC CA), 98 B.C.L.R. (2d) 1, as an indication that the second approach is gaining favour, although that decision was based on Rule 26(11), which deals with orders for documents in the hands of a third party, and did not specifically consider the scope of the discretion encompassed in the term “may” in either Rule 26(10) or Rule 26(11). I agree with their view, for the Court of Appeal in this case spoke of a broader discretion which applied regardless of whether the guardian of the documents was a party to the litigation or a third party.

67 My colleague has chosen the first or traditional approach to the powers of the court to control the discovery of documents. In so doing, she rejects the Court of Appeal’s method while affirming their result. I prefer to affirm the Court of Appeal’s characterization of its powers, for reasons which I will delineate, and then to determine whether the discretion as exercised by the trial judge and the Court of Appeal adequately comports with Charter values. In this latter task I am guided by recent jurisprudence of this Court. However we choose to characterize their powers, the Master, Chambers judge and Court of Appeal clearly exercised a discretion to order the production of documents for discovery. The guidance they sought as to the appropriate exercise of these powers arises from the approach defined in the case law applying the discretionary Rules of Court. As such, the task of assessing whether the exercise of the discretion complies with Charter values cannot be avoided. I see no reason to distinguish between this case and others where this Court has held that discretionary judicial procedures developed at common law or in a statute must comport with Charter values. The discretion exercised by the Master, Chambers judge, and the Court of Appeal is open to the challenge asserted by the appellant.

68 An examination of the sources of the modern procedures governing discovery supports this finding. These procedures have their earliest roots in equity. The English Courts of Chancery developed rudimentary procedures for mutual disclosure in response to the problem in the common law courts of one party unfairly using the trial procedures to the detriment of the other party. The goal of discovery was, and has continued to be, the achievement of a more efficacious and accessible justice for the parties to an action. In Canadian provinces, including British Columbia, the procedures which we use today are not simply a reproduction of those available in equity, but have been largely expanded and developed through either statutory or regulatory reform. Canadian provinces have generally followed the example of the United Kingdom in this respect. There are differences among the provinces, most particularly British Columbia and Nova Scotia where the discovery procedures were more recently instituted; nonetheless, all contain similar elements which expand upon the original equitable procedures. See G. Cudmore, Choate on Discovery (2nd ed. 1993 (loose-leaf)), at pp. 1-1 to 1-6.

69 In interpreting the regulatory rules governing discovery, the courts have tended to allow a “wide latitude” in exercising the discretionary powers they have been granted, in the aim of best serving the overall policy objectives of the procedural reforms. These include, inter alia, the clarification of issues and the strength of the case faced by each party, the shortening of trials through avoiding “ambush” or surprise, and the encouragement of out-of-court settlement. In view of these goals, while the rules may establish a broad discretion for the courts to control the process of discovery of documents, the courts have been careful to avoid unduly circumscribing the procedures. See Cudmore, supra, at pp. 1-6 to 1-9.

70 An alternative approach to the discretion created by the British Columbia Rules is one which places an outer limit on this discretion, a limit which ensures that the discovery procedures not work injustice, even where a claim in privilege has not been successful and it appears that information in the documents is relevant to an issue at trial. This is the principle upon which the Court of Appeal relied in the instant appeal. The court held, per Southin J.A. for the court, at p. 19, that in exercising the discretion to order production of a document for the purposes of discovery, whether in the hands of a party or a non-party, it should

ask itself whether the particular invasion of privacy is necessary to the proper administration of justice and, if so, whether some terms are appropriate to limit that invasion.

71 In my view, this common law approach is more consistent with the wording of the British Columbia Rules governing discovery, the origins of the procedures, the common law discretionary rules governing information regarding non-parties, and the effect of the Charter on the exercise of common law and statutory discretion in civil proceedings. As has already been stated, the discretion to order production of documents which is envisaged in Rules 26(10) and 26(11) is a broad one. In essence, the wording of these rules indicates that the courts may control the production and inspection of documents in whatever manner they think just.

72 This reference to justice is highly consistent with the historical source of the procedures. Rudimentary discovery procedures constituted a response by the courts of equity to the injustice which was being occasioned by some parties’ use of the procedures in the common law courts. Given its origins in equity and its longstanding purpose of facilitating rather than impeding justice, it is fitting that the courts maintain an overarching discretion to ensure that discovery proceed in a just manner. While giving as broad a leeway as possible to the party seeking production of particular documents, the courts must remain cognizant of the possibility of the procedure working to the unfair detriment of one of the parties.

73 That the courts should tailor the procedures to protect against oppressive consequences is further supported by the approach which has developed in the British Columbia courts as regards documents in the hands of third parties. In Dufault v. Stevens (1978), 1978 CanLII 366 (BC CA), 6 B.C.L.R. 199, at p. 204, for example, the British Columbia Court of Appeal held that, in making an order pursuant to Rule 26(11), the judge should compel the production of possibly relevant documents, “unless there are compelling reasons why he should not make it”, giving, as examples, privileged documents or those where production would be of such an adverse effect as to be unjust. It is partly on the basis of this decision that the Court of Appeal in the instant appeal made its order. In Frenette v. Metropolitan Life Insurance Co., 1992 CanLII 85 (SCC), [1992] 1 S.C.R. 647, at p. 686, this Court described a similar approach to the discretion granted through equivalent procedural provisions in Quebec.

74 Finally, given that an exercise of common law discretion, even in the context of civil proceedings, can be scrutinized to ensure that it comports with the values underlying the Charter, the outer limits on the discretion in this case are justified provided that they ensure adequate compliance with these values.

75 The principle that the process by which a judge orders the production and inspection of documents may be adapted to avoid injustice to one of the parties is reflected to some degree in the reasons of my colleague. The power of a judge to place restrictions on the reproduction and dissemination of documents once produced relies on such a rationale. McLachlin J. nonetheless maintains the substance of the traditional approach to the discretion in her conclusion that documents or parts thereof which are not considered privileged cannot be withheld from the defence, regardless of the effects their production may have on the privacy interests of the plaintiff. In any event, the issue before this Court is whether the discretion as exercised by the Master, Chambers judge, and the Court of Appeal in this case complies with the values underlying the Charter.

76 My colleague has described my approach to this issue as “wholly inappropriate” on the grounds that a procedural rule could be found to trump the common law. I disagree. First of all, the exercise of discretion which is subject to scrutiny in discussing this issue is not the privilege doctrine, but rather the discretionary common law rule for determining which documents should be ordered produced for discovery. If the doctrine of privilege did not exist, and the common law discretionary rule simply stated that all documents shown to contain material information will be ordered produced, could the appellant in this case not argue that this did not reflect an adequate balance of the Charter values of privacy, equality, and trial fairness? All that has been added to the traditional approach is that privilege will also prevent a court from ordering production.

77 As I have stated, privilege only considers the privacy interests of plaintiffs in civil litigation as they relate to relationships which are considered to be of adequate public importance. In my view, where a plaintiff is unsuccessful in her privilege claim, she may still suffer a serious incursion upon her privacy which is unwarranted given the potentially limited or non-existent benefit to the fairness of the trial of some of the disclosed information. Given this result, this Court is required to examine the common law approach to this discretion to ensure that it effects an appropriate balance of the Charter values engaged in this context. This process will in no way interfere with a plaintiff’s claim to privilege as it only concerns those documents which have not been found to be protected by privilege.

78 While I have referred to the source of Rules 26(10) and 26(11), and its reflection in their wording, this reference is meant to demonstrate the purpose of the discovery process, viz. to render the trial process more expeditious and fair. My primary focus is not the Rules of Court, however, but rather the discretionary approach or rule developed by the courts to govern the judicial exercise of the powers relating to discovery of documents. In my view, if we determine that the discretion as exercised by the Court of Appeal does not provide an adequate reflection of Charter values, it is incumbent upon this Court to alter that approach. Moreover, if the doctrine of privilege, while updated to reflect Charter values, provides an inadequate consideration of privacy interests asserted by the plaintiff, the traditional approach to discretion as exercised by the Master and Chambers judge must also be changed. Not only would such a result be appropriate, justice in these circumstances would require nothing less.

(ii) Charter Values: Privacy, Trial Fairness, and Equality

79 In the recent decision of O’Connor, supra, this Court was asked to determine whether the Charter protected the privacy interests which a complainant in a criminal sexual assault case would have in private records. The Court held that s. 7 of the Charter did include a right to privacy in such documents. At p. 477, they were referred to as “private records”, which were taken to mean any records “in which a reasonable expectation of privacy lies”, and could include, inter alia, medical or therapeutic records, school records, private diaries, and the activity logs prepared by social workers.

80 Writing for the Court on this issue, I concluded that the rights to individual liberty and security of the person as enshrined in s. 7 of the Charter encompassed a right to privacy. This finding was based on a number of developments in the jurisprudence of this Court. In its s. 7 jurisprudence, it has expressed great sympathy with the notion that liberty and security of the person involve privacy interests. That privacy is essential to human dignity, a basic value underlying the Charter, has also been recognized. Our right to security of the person under s. 7 has been found to include protection from psychological trauma which can be occasioned by an invasion of our privacy. Certainly, the breach of the privacy of a sexual assault plaintiff constitutes a severe assault on her psychological well-being. Section 8 also reveals that the Charter is clearly premised on a respect for the interests of individuals in their privacy. Finally, the common law torts of defamation and trespass further recognize the validity of an individual’s claim to fundamental privacy interests.

81 This Court also established that such a right is not absolute and “must be balanced against legitimate societal needs” (O’Connor, supra, at p. 485). The Court affirmed the principle that such a balancing should be effected through an assessment of the individual’s reasonable expectation of privacy and a weighing of that expectation against the state’s legitimate needs to interfere therein: per L’Heureux-Dubé J., for the Court on this issue, at p. 485, citing Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145. The records at issue in O’Connor were found clearly to disclose a reasonable expectation of privacy, worthy of protection under s. 7 of the Charter. This conclusion was not drawn on the basis of a strong public interest in the relationships through which these records arose, but rather on the nature of the records, the information contained therein, and the effects of disclosure on the person asserting her expectation of privacy. The concern or value underlying the Charter-based right to privacy thus differs significantly from that which founds the doctrine of privilege.

82 As the nature of privacy dictates that once violated it cannot be regained, it was held that the reasonable expectations of privacy should be protected at the point of disclosure. The Court thus found, at p. 487, that:

s. 7 of the Charter requires a reasonable system of “pre-authorization” to justify court-sanctioned intrusions into the private records of witnesses in legal proceedings.

83 As the records at issue in this appeal are of the same nature as those mentioned in O’Connor, I conclude that the appellant has established a reasonable expectation of privacy in these documents. The respondent has argued that the appellant waived her right to privacy by putting her psychological well-being at issue in a trial. I do not agree. As my colleague McLachlin J. has found, her privacy is not waived by the mere fact that an action was instituted. Rather, the appellant has engaged a process where the reasonable expectation of privacy must be balanced against society’s need to ensure that such litigation be conducted fairly and effectively. This may mean that a respect for Charter values in the discovery procedures would tolerate greater access to certain information, but it will not mean that her reasonable expectation of privacy has in any way been relinquished. In my view, the appellant has established such an expectation. As such, it must be balanced with the other interests which arise in the discovery aspect of civil litigation.

84 In O’Connor, the complainant’s privacy interests were balanced against the accused’s Charter right to make full answer and defence. This right is an essential element of the principles of fundamental justice which are to govern criminal proceedings. In civil proceedings, while the defendant does not have a direct Charter right to exercise, that is, while his liberty or security are in no way endangered, similar values are at stake. A miscarriage of justice could occur if a lack of necessary relevant information might enable a trial judge or a jury to reach a false result. The Charter-related value of a fair trial for all litigants, as a fundamental principle of justice, is affected in such cases and may be balanced with the privacy interests of the appellant. As was the case with the accused’s rights in O’Connor, however, these interests are no more absolute than those of the plaintiff. My statement at p. 480 applies equally in these circumstances:

There is no question that the right to make full answer and defence cannot be so broad as to grant the defence a fishing licence into the personal and private lives of others.

85 That decision also discussed the requirement that any procedural discretion in sexual assault cases reflect the value of equality, given that (at p. 487):

[u]nlike virtually every other offence in the Criminal Code, sexual assault is a crime which overwhelmingly affects women, children and the disabled.

The same observation can be made for the tort represented by sexual assault. In view of the unique nature of such cases, the possibility of biased assumptions based on the age or gender of the plaintiff must not be allowed to taint the procedure. Indeed, there may be a greater danger of such an effect, as it is monetary compensation for the injury which is sought. Biased inferences may well be made that this injury is not as great or as worthy of compensation as that caused by other forms of assault which have traditionally received greater attention in both the criminal and civil law domains.

86 This Court was asked in O’Connor to determine whether the judge’s discretion to order the production of private records to the defence in advance of the criminal trial was exercised in a manner which comported with the Charter values of privacy, fair trial, and equality. As in the instant appeal, direct state action was not involved. Although the prosecution of a criminal offence formed the context for the exercise of discretion, the common law did not dictate that the court act in a certain way. At pp. 479-80, the following principles from Dagenais, supra, were found to be applicable:

. . . the nature, scope and breadth of the production order will ultimately depend upon a balancing of Charter rights which seeks to ensure that any adverse effects upon one right is proportionate to the salutary effects of the constitutional objective being furthered: Dagenais, at p. 890.

Following this approach, the Court developed a number of procedural safeguards to guide any order for production of private records, a matter to which I will now turn as, in my view, these principles also apply to a civil trial where the production of private records is in issue.

II. Process

87 On the basis of the principles in Dagenais, supra, and with the goal of achieving an appropriate balance of the Charter values of privacy, fair trial, and equality, the Court in O’Connor developed a number of procedural safeguards to guide any order for production of private records. These involve a two-stage test which can be undertaken once the defence has notified all parties with an interest in the confidentiality of the documents. The first stage of the judge’s determination requires that the defence establish the likely relevance of the documents. More than mere speculation or biased inferences about sexual assault complainants is required. A minority of the Court particularly emphasized the danger of biased assumptions and required that the defence establish independent grounds via affidavit evidence for asserting that information in the documents was likely relevant to issues at trial or the competence of a witness to testify.

88 If the initial threshold of likely relevance is overcome, the court will order the production of those documents which were found to be likely relevant, but only to the court and for the purpose of the court’s inspection. At this stage, the court is asked to decide which documents or parts of documents contain information which is likely relevant, and to weigh the effects of production on the complainant with those on the accused. A number of factors to be considered were enumerated. I further note that in both O’Connor, supra, and L.L.A., supra, the possibility of claiming privilege with respect to these documents was not foreclosed. Where a claim of privilege is unsuccessful, the court would nonetheless be required to exercise its discretion in compliance with Charter values through the preceding procedures.

89 The present case requires that we determine whether and how the discretion exercised by a court in civil as opposed to criminal proceedings should be altered to comply with Charter values. While there are some key differences between the two contexts, the most significant factors which governed the development of the O’Connor procedure remain present in the context of a civil suit. Through an examination of these distinctions and commonalities, procedures for governing discovery which comport with the Charter values engaged in this appeal can be identified.

90 A significant difference between discovery in the civil context and disclosure in a criminal prosecution lies in the control a plaintiff has in a civil suit over whether she takes part in the proceedings. A further distinction relates to the benefit which may be derived by the plaintiff from the discovery process. Indeed, she may have a very strong interest in settling the case to avoid the traumatic experience of the trial process. A third difference is that, given the circumstances, it may be easier, in certain cases, to establish the likely relevance of the records to issues at trial. In the case before us, Dr. Parfitt was the only therapist who treated the appellant after the assault and, thus, the only professional with in-depth knowledge of the extent of the injury claimed, viz. psychological harm and its consequences for the appellant. Such circumstances may be taken into account when a judge makes an initial determination of the likely relevance of the records. A final distinction is that the state is not a party in the action where the order for production arose.

91 We must also recognize that, given the nature of discovery and the special context of civil litigation involving sexual assault, the discovery process has the potential to allow a far more serious incursion upon these plaintiffs’ reasonable expectation of privacy than on plaintiffs in other types of tort cases. These circumstances are somewhat unique. As was observed in O’Connor, supra, at pp. 487-88, the wrong involved here, sexual assault, may create a need for a therapeutic response if the victim is to restore herself to a state of healthy functioning. As Dr. Parfitt’s affidavits attest, effective counselling requires that the most intimate details of a patient’s life and her innermost thoughts, fears, and feelings be freely shared with the therapist. At the same time, it often requires that the counsellor keep records of what has transpired during her sessions with the plaintiff. A plaintiff may also maintain a private diary of these experiences, thoughts, and feelings.

92 Thus, by its very nature, this civil wrong creates a situation where a written record will be made of the most intimate details of the plaintiff’s life. These documents may also provide a unique record of the injury which was allegedly caused. At the same time, as McLachlin J. observes, much of such information in the records will be of very limited value to the trial process. The same can be said of any private record of the plaintiff’s thoughts, feelings, and experiences regarding the assault. Given this context, the traditional approach to discovery, the one where the plaintiff must rely upon the ad hoc protection privilege provides, will serve as a strong disincentive to plaintiffs to attempt to recover compensation for the injury caused. The mutual exchange of information for the shared purpose of expediting the search for justice is turned into a process which may prevent a plaintiff from seeking compensation in the courts or may encourage a premature and unfair settlement to avoid excessive disclosure of the private documents. Such a result cannot comport with our sense of justice, particularly as it is informed by the Charter values of privacy and equality. Clearly, a more predictable procedure is in order, one which addresses the unique difficulties faced by plaintiffs in these circumstances.

93 While the procedures established in O’Connor are not entirely appropriate in the context of civil litigation, a number of their features are equally applicable in such proceedings. The most important aspect is the “pre-authorization” element of the process. This is required by the essential nature of privacy interests. An adequate protection of privacy requires that meaningful controls be exercised at the disclosure stage. In O’Connor, writing for the Court on this issue, I concluded that the prevention of a breach of privacy is the best means of protecting these interests, as once breached, privacy cannot be regained. In the context of a criminal prosecution, this factor necessitated the “likely relevance” threshold and the obligation on the court to screen the documents before releasing them to the defence. Certainly, this aspect of privacy is as pertinent in the context of civil proceedings as it is in a criminal prosecution.

94 A further reason for screening the documents is the finding that much of the information in private records will, more often than not, be irrelevant to the defence or of very limited probative value given the context in which it is gathered. These considerations, too, are present in the case of civil litigation. The balancing undertaken in the O’Connor procedures is also warranted in the instant appeal, as the parties’ Charter-based interests must be weighed. Furthermore, the factors which are to be considered by the judge when screening the documents under the O’Connor test are similarly significant in civil proceedings, with the exception that it is the defendant’s as well as society’s interest in a fair trial which should be weighed as opposed to an accused’s Charter right to full answer and defence.

95 As the likely relevance of the records may, in certain cases, be more easy to establish initially under these procedures, screening the documents becomes all the more necessary in a civil suit. This is due in part to the nature of the injury. Psychological harm is a very broad notion. Almost anything a plaintiff experiences in her life could, in the abstract, be argued to be a contributing factor in any diminishment of her psychological well-being. Many of these potential contributors might also be of a very private nature. At the same time, a perusal of the documents may well reveal a lack of a logical link to the harm alleged. In such cases, this information should not be turned over to the defence.

96 By way of example, a plaintiff might share with her therapist that, for medical reasons, she and her husband are unable to have children. This is information of a highly private nature, which may, in the abstract, appear relevant to marital troubles alleged by the plaintiff. Upon reviewing the documents, it may well become evident that this issue was only briefly mentioned to the therapist, that the couple had never had any intention of having children, or that this was simply not a concern for them in their marriage. In such circumstances, a judge may wish to delete any mention of this fact in the records.

97 Given the foregoing distinguishing and shared features of the criminal and civil contexts for production of private records, the following procedure seems to me the appropriate one in the context of civil discovery. The party seeking production must notify those with an interest in the confidentiality of the records. Before a court may order production of private records to the defence for the purposes of discovery, it must first ascertain what documents are likely relevant to an issue at trial. In order to complete this task, the court must have before it the information necessary for this determination. In civil cases, the required information will be provided by the affidavit of the party seeking the order, in which he or she makes out the necessary grounds for obtaining production of the documents in question. The court must then order production of the likely relevant documents to the court for screening and removal of any information which the court deems is not likely relevant or otherwise exempt from production given a balancing of the interests involved.

98 In this process, the factors delineated by this Court in the context of a criminal prosecution are equally applicable, although with slight modifications to meet the requirements of civil proceedings. The court should be guided by the following considerations: the necessity of the record to ensure a fair trial, the probative value of the record, the nature and extent of the reasonable expectation of privacy in the record, whether the production of the record would be premised on any discriminatory belief, and the potential prejudice created by disclosure to the plaintiff’s dignity, privacy and security of the person. The additional factors of the potential benefit both parties will gain from a fair discovery process, the control the plaintiff has over whether she undertakes civil litigation, and the potential deterrent effect of this process on plaintiffs in civil litigation of sexual assault cases must also be considered.

99 In my view, in weighing these considerations, the judge should seek to achieve a discovery process which is what it is meant to be: a fair and mutual exchange. Both parties should be empowered to access those documents or parts thereof which will allow an appropriate narrowing of the issues, the avoidance of surprise at trial, and the potential for a fair out-of-court settlement.

100 As the state is not involved as a party to such cases, the balancing may be somewhat more flexible than that described in Dagenais, supra. The focus on proportionality of effects in that case was to give effect to the substance of s. 1 of the Charter: Dagenais, supra, per Lamer C.J. for the majority, at p. 878. This method of balancing is arguably not strictly applicable in private disputes: Hill, supra, per Cory J. for the Court in the result, at paras. 94 and 97. Nonetheless, a hierarchy of values cannot be created. Privacy and equality values cannot be assumed to be of lesser importance than the value of a fair trial in determining whether and to what extent to order the production of private documents. Any flexibility should be with the aim of ensuring that a mutually beneficial discovery process take place.

101 Also, a judge may ask the guardian of the documents for an “inventory” of those in his or her possession to assist in the screening process. This is consistent with the procedures developed in O’Connor and L.L.A. In my opinion, as part of this inventory, it would also be open to the judge to request a general indication of the contents of the individual records, a grouping of the documents by contents, or other assistance in sorting the documents. Such an inventory should not be given to the other party to the action at that stage.

102 My colleague has stated that these additional procedures will confuse trial judges. I do not agree. Nothing in the context of civil litigation should prevent the two separate claims from being asserted and addressed. In many cases, such as the one before us, the privilege claim will be settled by the judge on the basis of affidavit evidence. Some documents will be found privileged and others not. It is only the latter group which will be subject to the screening process. Where a judge determines that vetting the documents could be necessary to fulfill the fourth criterion of the Wigmore test, confusion could arise, however. In such cases, as the procedures I have described provide a more direct and consistent consideration of the plaintiff’s privacy interests, I would recommend applying the fourth branch of Wigmore to the entire group of documents, as a whole, either with or without the benefit of inspection. Once the privilege claim has been settled, the judge would then undertake the screening procedures described above to those documents which are not protected, provided that their likely relevance has been established.

III. Application to the Case

103 The Master who originally heard the motion for disclosure ordered all of the notes and records kept by Dr. Parfitt produced to the defence as these communications had failed to satisfy the first criterion of the Wigmore test, and were therefore not privileged. He refused to undertake any balancing of the interests asserted by the plaintiff as he held that this was not permitted by the law as it stood at that time. The Chambers judge affirmed the decision and order of Master Bolton, similarly finding that privilege had not been successfully claimed, although for different reasons. Again, no further balancing of the plaintiff’s interests in equality or privacy was undertaken.

104 The Court of Appeal in the present case allowed the appeal in part. It did so after attempting some balancing of the privacy interests of the plaintiff and the interests in a fair trial. Consequently, it withheld the notes made for diagnostic purposes and restricted the dissemination and reproduction of the records once produced. Nonetheless, it did not review the documents before ordering their production. In my view, such a process does not give due consideration to the appropriate balance of the Charter values engaged by the discovery procedures.

105 Indeed, in these particular circumstances, and given the nature of the damages claimed and the information sought by the defence, very little meaningful protection has been accorded to these private records. If plaintiffs in such cases know that the entire contents of their discussion with their therapists or any other private records may be revealed to the lawyers and expert witnesses of the defendant, they may very well be deterred from seeking civil remedies. Without anyone reviewing the documents to remove information which is private, irrelevant or of very limited probative value, an order of production constitutes a serious breach of privacy while affording potentially limited benefit to the defence. A hierarchy of Charter values has been created, one where the defence is greatly advantaged while the effect on the plaintiff may be highly detrimental. In striking an appropriate balance of Charter values, such a hierarchy is impermissible. The Court of Appeal’s decision must, therefore, be revisited. While the Court of Appeal’s general approach was correct and while it did not have the benefit of our judgments in O’Connor and L.L.A., at the time its decision was rendered, the process it adopted is infirm.

IV. Conclusion and Disposition

106 As regards the first issue, that relating to the privileged nature of the communications between the appellant and Dr. Parfitt, I agree with McLachlin J. that a successful claim of privilege has clearly been established for the records which were exempt from disclosure. I also affirm the Court of Appeal’s general conclusion that it had a broader discretion to control the process of discovery for the remaining documents to ensure that it not affect one of the parties unjustly.

107 The exercise of discretion upon which the order was based did not effect an appropriate balance of the Charter values of privacy, equality, and fair trial. By failing to screen private records in such cases, the court creates a hierarchy of Charter values, where interests in privacy and equality may be seriously affected for records or parts thereof which may provide very little if any benefit to the defence or be unnecessary to ensure the fairness of the proceedings. Procedures adapted to the context of discovery in civil proceedings from the principles developed by this Court in O’Connor are in order.

108 I would allow the appeal with costs. The decision of the Court of Appeal should be set aside, except as regards the notes which were not disclosed, and the matter remitted back to the Master for determination in a manner consistent with the foregoing reasons.