Superior Court of Justice - Ontario
COURT FILE NO.: 09-44772
MOTION HEARD: February 26, 2013
RE: Dupont, Plaintiff (Responding Party)
AND:
Bailey et al., Defendants (Moving Party)
BEFORE: Master Pierre E. Roger
COUNSEL:
David Cutler, counsel for the Plaintiff
Donna M. Crabtree, counsel for the Defendants
HEARD: February 26, 2013
REASONS FOR DECISION
[1] The Defendants bring this motion for an Order requiring the Plaintiff to produce the un-redacted clinical notes and records of Dr. Elaine Clark, the Plaintiff’s treating psychologist.
Background Information:
[2] The Plaintiff was involved in a car accident on July 16, 2008.
[3] In her Statement of Claim, issued April 22, 2009, the Plaintiff claims permanent severe soft tissue injuries, depression, and trauma. She alleges permanent serious impairments of important physical, mental and psychological functions.
[4] Prior to this accident, the Plaintiff had been receiving psychotherapy for a number of years, first from Dr. Low and then from Dr. Newman, who was her psychotherapist at the time of the accident and continued to be so until May 11, 2009, when the Plaintiff started seeing Dr. Elaine Clark, psychologist, who continues to provide psychotherapy.
[5] Dr. Newman’s pre and post-accident clinical notes and records have been produced without a claim of privilege or redaction.
[6] The notes of Dr. Low were produced following an Order for production.
[7] On December 17, 2009, the Plaintiff produced the un-redacted notes of Dr. Clark from June 2, 2009 to December 17, 2009.
[8] The Plaintiff’s psychological treatment with Dr. Clark continued. In the records produced, Dr. Clark occasionally comments about the Plaintiff’s claim in the litigation.
[9] In March 2011 and October 2012, the Plaintiff produced updated clinical notes and records of Dr. Clark with portions redacted on the basis that the redacted parts were either not relevant or privileged. The Plaintiff has subsequently released pages of notes where some of the earlier redactions have been removed.
[10] The remaining redacted portions of Dr. Clark’s notes involve portions of 17 pages of Dr. Clark’s approximate 200 pages of notes that have been produced.
[11] In her affidavit, the Plaintiff has indicated:
a. The treatment provided by Dr. Clark has involved Dr. Clark and the Plaintiff discussing all aspects of her life, including full and frank disclosure of the patient’s experiences, activities, and thoughts.
b. In receiving treatment from Dr. Clark and in discussing matters with her, the Plaintiff has always expected that her discussions with Dr. Clark would remain confidential, in keeping with the professional and ethical obligations owed by Dr. Clark much the same as her conversations with her lawyer.
c. The only reason that the Plaintiff has had discussions with Dr. Clark about the Plaintiff’s view and thoughts with respect to the litigation and the content of some of the Plaintiff’s discussions with her lawyer is that she believes that Dr. Clark’s effective treatment of her requires disclosure of that type of information.
d. The Plaintiff has told Dr. Clark about her discussions with her lawyer as to the status of the case, the merits of the case, her involvement in certain steps in the litigation and her thoughts and feelings associated with these matters.
e. Dr. Clark has recorded the content of the Plaintiff’s discussions with Dr. Clark with respect to the litigation and the Plaintiff’s discussions with her lawyer, as described above.
f. The Plaintiff’s specific communications with Dr. Clark as to the litigation and the Plaintiff’s discussions with her lawyer have always been pursuant to the Plaintiff’s intent that those matters remain confidential as between the Plaintiff and her lawyer, subject only to the limited exception that Dr. Clark’s treatment of the Plaintiff requires the disclosure of the Plaintiff’s views and thoughts with respect to the litigation and certain elements of the Plaintiff’s discussions with her lawyer.
g. As part of the litigation process, the Plaintiff has come to understand the requirement that she disclose the clinical notes and records of Dr. Clark, and she has authorized her counsel to obtain Dr. Clark’s clinical notes and records and to release those clinical notes and records, albeit with portions of Dr. Clark’s clinical notes redacted.
h. Most of Dr. Clark’s notes have been produced. The portions of Dr. Clark’s notes that the Plaintiff has instructed her counsel to redact and not produce to the Defendants relate to those portions of Dr. Clark’s notes that record the Plaintiff advising Dr. Clark as to the Plaintiff’s discussions with her lawyer and the Plaintiff’s views and thoughts with respect to this action.
[12] At the hearing of the motion, the court was provided a full copy of the un-redacted notes for inspection as contemplated under rule 30.04 (6) of the Rules of Civil Procedure. Having reviewed these notes (17 pages with only portions thereof redacted, which portions were highlighted for the court’s convenience), the redacted portions fall generally into the following categories:
Comments relating to a mediation session: the Plaintiff’s perception of the process and participants; comments about an offer; comments about legal fees; and comments about her lawyer’s strategy.
Comments relating to a meeting (or meetings – not clear from the notes) with her lawyer.
Comments relating to advice provided by her lawyer and her perception of these comments.
Words of encouragement or comments from the psychologist relating to the above.
[13] This motion raises the following issues:
a. Is a party permitted to redact portions of a relevant document on the basis that those portions are not relevant and, if so, when or in what circumstances.
b. Has the Plaintiff made a valid claim of privilege over her communications with her psychologist respecting her reaction to the litigation and discussions with her lawyer?
Applicable Law:
[14] The applicable law is laid out in: McGee et al. v. London Life Insurance Company Limited, 2010 ONSC 1408, 86 C.C.L.I. (4th) 86 (Sup. Ct.).
[15] The general rule is that relevant documents must be produced in their entirety: a party may not redact portions of a relevant document only because it says those portions are not relevant.[^1]
[16] However, that is not the end of the analysis and the general rule is subject to exceptions:
If portions of a relevant document are clearly not relevant and there is good reason why they should not be disclosed (such as, for example, if the information would cause significant harm to the producing party and in no way serve to resolve the issues at hand in the action) then such portions may be redacted. The party resisting full disclosure has the onus of establishing that the redacted portions contain irrelevant information and that redaction is necessary.
If the portions redacted from a relevant document are relevant, such portions may be redacted if they are protected by privilege. Privilege would of course include, as applicable to the circumstances of each case, solicitor and client privilege, litigation privilege or common law privilege if disclosure “…would infringe public interests deserving of protection”, as indicated in McGee, sufficient to establish a common law privilege meeting the Wigmore criteria).
[17] This is well set out at paras. 9 and 10 of McGee:
The whole of a relevant document must be produced except to the extent it contains information that would cause significant harm to the producing party or would infringe public interests deserving of protection. I respectfully adopt as applicable in Ontario the statement of Lowry J., as he then was, in North American Trust Co. v. Mercer International Inc (1999), 1999 4550 (BC SC), 36 C.P.C. (4th) 395, [1999] B.C.J. No. 2107. (S.C.) at para. 13:
Under the rules of this court, a litigant cannot avoid producing a document in its entirety simply because some parts of it may not be relevant. The whole of a document is producible if a part of it relates to a matter in question. But where what is clearly not relevant is by its nature such that there is good reason why it should not be disclosed, a litigant may be excused from having to make a disclosure that will in no way serve to resolve the issues. In controlling its process, the court will not permit one party to take unfair advantage or to create undue embarrassment by requiring another to disclose part of a document that could cause considerable harm but serve no legitimate purpose in resolving the issues. [emphasis added]
Lowry J. referred to a number of authorities, some of which were referred to by London Life in the motion before me, and observed at para. 11:
In the cases to which I have been referred, litigants have been relieved from disclosing the whole of a document related to a matter in question where, but only where, the part withheld has been clearly not relevant to the issues and, because of its nature, there has been good reason why that part should not be disclosed. With reference to the decisions of this court specifically, good reason is apparent in the private nature of the affairs of a company recorded in the minutes of its directors' meetings, or the personal sensitivity of a person's medical records, diary notations, or familial communications, and much the same can be said where expurgated disclosure of a document has been upheld in the cases cited from other jurisdictions. Statements to the effect that only the relevant parts of a document need be produced, such as in Jervis Court Development [Jervis Court Development Ltd. v. Ricci, [1992] B.C. J. No. 2932 at para. 24 and [K.L.V. v. D.G.R.], [1993] B.C.J. No. 1662] at para. 10, must be read in the context of what was decided. [emphasis added]
[18] Examples of situations where the first exception might be applicable would include irrelevant and sensitive information contained in medical documents.[^2]
[19] In most cases, as indicated in McGee, this is resolved between lawyers. In fact, I would encourage counsel to take all reasonable steps to avoid such a motion. In some cases, depending on the redacted information and personalities involved, by disclosing only to opposing counsel the redacted portions or parts thereof (when this is possible in a meeting between counsel in circumstances where no notes or copies may be made) or by explaining very clearly what was redacted.
[20] In many cases such efforts at clearly explaining why portions were required to be redacted might avoid a motion. Otherwise “…the court has a duty to ensure that relevant information is produced and also to ensure that the process is not being used for oppressive or collateral purposes” and a motion should then be brought. The function of the court on such a motion is to distinguish between redacted portions of a relevant document that are either: (1) relevant and therefore that should be produced; (2) irrelevant but innocuous and therefore that should be produced; and (3) “…information that is irrelevant and very sensitive – sensitive in the sense that the party resisting production would suffer damage or real embarrassment if the irrelevant information were to be disclosed” which may not be produced.[^3] The analysis at paragraph 20 of McGee between innocuous and embarrassing irrelevant portions in a relevant document is revealing.
[21] In Pinder v. Sproule, 2003 ABQB 33, 333 A.R. 132, the plaintiff disclosed her psychiatrist’s clinical chart to the defendants, with certain portions blacked-out. The blacked-out portions related to those notes wherein the psychiatrist had recorded his conversations with the plaintiff as to the progress of the plaintiff’s litigation and the plaintiff’s related conversations with her lawyers.[^4]
[22] In deciding the motion in Pinder, the Court engaged in a two-stage analysis, with the first question being the relevance question, and the second question being whether or not the notes were privileged or not.
[23] Such an approach is entirely consistent with the wording of Rule 30.02(2), as only if the document is relevant is it necessary to go to the question of privilege.
[24] When considering privilege a party may argue solicitor and client privilege, litigation privilege or common law privilege. In this case, a common law privilege is argued. As they have been cited in many other cases, the criteria established by Professor Wigmore required to find the existence of a common law privilege were also cited in Pinder v. Sproule, as follows:[^5]
the communications must originate in a confidence that they will not be disclosed;
this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;
the relation must be one which in the opinion of the community ought to be sedulously fostered;
the injury that would enure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.
Disposition:
[25] I agree with the comments made in Pinder at paras. 27 and 28 and find that they are applicable to the case at hand. I find that the redacted portions are irrelevant and if produced would only embarrass and potentially prejudice the Plaintiff while serving no purpose in resolving the issues in this action. Therefore, these portions need not be produced as they meet the first exception described in McGee: there is good reason why they should not be disclosed.
[26] Considering my conclusion above, there is no need to consider whether the notes are privileged under the four Wigmore criteria.
[27] This motion is therefore dismissed.
[28] On the issue of costs, I see no reason to depart from the general rule that costs of the motion follow the result and be payable forthwith on a partial indemnity basis. I have reviewed the costs outline submitted by the parties. They are virtually identical. Costs are assessed on a partial indemnity basis in the all-inclusive amount for fees, disbursement and HST of $3,800.00.
Master Pierre E. Roger
Date: March 4, 2013
[^1]: McGee, at para. 8.
[^2]: McGee, at para. 14.
[^3]: McGee, at para. 20.
[^4]: Pinder, at paras. 7, 14-15.
[^5]: Pinder, at para. 45.