SUPERIOR COURT OF JUSTICE - ONTARIO

CITATION: ROBINSON v. LONDON HEALTH SCIENCES CENTRE, 2017 ONSC 5587

COURT FILE NO.: CV-12-454827 (TORONTO)

MOTION HEARD: AUGUST 16, 2017

RE: Dr. David Robinson v. London Health Sciences Centre and The University of Western Ontario

BEFORE: MASTER R.A. MUIR

COUNSEL: Matthew Wilton for the plaintiff Nicola Brankley for the defendant London Health Sciences Centre

REASONS FOR DECISION

[1] The plaintiff brings this motion seeking answers to undertakings and questions refused or taken under advisement at the examinations for discovery of the defendants’ representatives. The plaintiff also seeks an order pursuant to Rule 30.10 of the Rules of Civil Procedure, RRO 1990, Reg. 194, for the production of a file in the possession of the law firm Filion Wakely Thorup Angeletti LLP (“Filion”).

[2] A number of the issues were resolved prior to the return date for this motion, including all of the issues in relation to the defendant The University of Western Ontario (“UWO”). However, a number of questions and issues remain in dispute with respect to the defendant London Health Sciences Centre (“LHSC”) and were the subject of argument.

BACKGROUND

[3] This is a constructive dismissal action. The plaintiff is a psychiatrist who formerly enjoyed hospital privileges with LHSC. He was also an associate professor of psychiatry at UWO.

[4] The plaintiff alleges that while employed with LHSC and UWO he became the subject of a campaign of harassment that resulted in certain inquiries into his conduct. One of the key issues in this action is the plaintiff’s involvement with a certain Psychiatric Stipend funding provided to LHSC by the Ontario Ministry of Health and Long Term Care. Concerns were raised by persons working with the plaintiff which resulted in an investigation into the plaintiff’s conduct by Ms. Elizabeth Hewitt, a lawyer who was, at the time, practicing with Filion. Ms. Hewitt delivered her report on May 31, 2010. On the same day, the plaintiff tendered his resignation, although he was not aware of the contents of the report at the time. The plaintiff takes the position that he was unable to continue working given the alleged harassment and difficult working conditions. The plaintiff takes the position that he was constructively dismissed by the defendants and seeks significant damages as a result.

PRIVILEGE REFUSALS

[5] The main issue on this motion is whether LHSC should be required to disclose the names of certain individuals interviewed by Ms. Hewitt as part of her investigation that resulted in the May 31, 2010 report. Several questions seeking this information were refused by LHSC on the basis of a claim for privilege.

[6] It appears that most the individuals interviewed by Ms. Hewitt were medical residents at the time of Ms. Hewitt’s investigation. I will simply refer to them as the “Residents” for the purposes of these reasons for decision.

[7] LHSC takes the position that the identity of the Residents is subject to privilege and need not be disclosed. LHSC relies on the so-called Wigmore test for determining the applicability of common-law privilege on a case by case basis. The test is well summarized by Master Dash in his decision in Cadillac Fairview Corp. v. Standard Parking of Canada Ltd., [2004] OJ No. 37 (SCJ - Master). At paragraphs 20 and 21 of that decision, Master Dash outlines the test as follows:

20 The Wigmore test for determining the applicability of common-law privilege on a case-by-case basis was summarized by the Supreme Court of Canada in Slavutych v. Baker, 1975 5 (SCC), [1976] 1 SCR 254 at p. 260 where Spence J., speaking for the court, outlined the "four fundamental conditions as necessary to the establishment of a privilege against the disclosure of communications" as follows:

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

(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

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

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

21 The Wigmore test has more recently been restated, with a slightly different nuance on the fourth requirement, by the Supreme Court of Canada in M. (A.) v. Ryan, 1997 403 (SCC), [1997] 1 SCR 157 at p. 171 as follows:

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.

[8] LHSC submitted that all of the Wigmore factors have been met in the circumstances of this action and therefore the names of the Residents need not be disclosed.

[9] The plaintiff conceded in argument that conditions two and three had been met by LHSC but argued that conditions one and four have not been satisfied in the circumstances of this proceeding. The plaintiff also took the position that even if privilege could be established, LHSC has waived any such privilege by expressly referring in its statement of defence to Ms. Hewitt’s investigation, along with certain information she must have obtained from the Residents. The plaintiff suggested that the waiver issue should be determined first as it could be dispositive of the question of privilege.

[10] In my view, the question of whether the privilege exists in these circumstances should be determined prior to any consideration of waiver. The question of waiver can only arise once a claim for privilege has been made out. In my view, to consider waiver without making a finding of privilege would amount to placing the cart before the horse.

[11] I am satisfied on the evidence that the first element of the Wigmore test has been met. The Residents appear to have been given a promise of confidentiality. That promise is expressly referred to by Ms. Hewitt at page two of her report. Ms. Hewitt states that a number of the Residents had approached Dr. Gillian Kernaghan to express their concerns regarding their interactions with the plaintiff. Dr. Kernaghan was, at the time, the Vice President Medical Education and Medical Affairs for LHSC. Dr. Kernaghan then advised the plaintiff of this event and indicated that an investigation would be undertaken. At least some of the Residents had expressed concern about reprisal or other damage to their professional careers in the event that their identities became known to the plaintiff. Ms. Hewitt states that the Residents who came forward were told that their identity would not be disclosed to Dr. Robinson. It was on this basis that they participated in the investigation by Ms. Hewitt. In my view, this evidence satisfies the first element of the Wigmore test insofar as Ms. Hewitt’s investigation is concerned.

[12] The plaintiff argued that even if there was a promise of confidentiality in respect of Ms. Hewitt’s investigation, that promise did not apply to the Residents who had earlier expressed their concerns to Dr. Kernaghan in January 2010, before Ms. Hewitt was retained. I do not accept this argument. The relevant portions of Ms. Hewitt’s report, when read in context, make it clear that the promise of confidentiality extended beyond the investigation by Ms. Hewitt. The promise was made by a LHSC physician as a result of concerns raised by the Residents when they first approached Dr. Kernaghan. It appears to have originated as part of the overall workplace review referenced by Ms. Hewitt at page two of her report. This concern on the part of the Residents is also referenced in Dr. Kernaghan’s letter to the College of Physicians and Surgeons of Ontario (“CPSO”) dated August 18, 2010. This letter is consistent with Ms. Hewitt’s report in this respect and clearly demonstrates that the concerns about reprisal and confidentiality were present from the outset.

[13] I am therefore satisfied that the first element of the Wigmore test has been met.

[14] LHSC has therefore satisfied the first three parts of the test. A compelling prima facie case for the privilege has therefore been established. See Cadillac Fairview Corp. at paragraph 31. The court must now engage in the balancing of interests as required by the fourth factor of the test. The court must determine whether the interests served by protecting the communications from disclosure outweigh the interest of arriving at the truth and disposing correctly of this litigation.

[15] In my view, a balancing of these interests favours disclosure in the circumstances of this action. It is important to note that a simple promise of confidentiality is not enough, by itself, to protect the communication from disclosure. It remains open to the court to order disclosure in the appropriate circumstances. See Cadillac Fairview Corp. at paragraph 22. At its heart, this is an employment case. The plaintiff alleges that he was subject to workplace harassment that made it impossible for him to continue with his employment with the defendants. Although this action involves a physician working at a public hospital and a university, the underlying facts have little to do with the plaintiff as physician. The complaints about the plaintiff arise from a dispute over the stipend fund and how it was being administered. It appears to have begun as a disagreement over purely administrative issues which might very well be present in any workplace. The action chiefly arises from interpersonal conflict among co-workers. The dispute has very little to do with the plaintiff as physician or his competency as a psychiatrist. It does not involve patients or patient safety. The setting just happens to be a public hospital. Ms. Hewitt’s report reveals what appears to be a routine workplace investigation. The first sentence of her report states that she was retained to conduct a “workplace review”. I do not see a particularly strong public interest at stake in this litigation.

[16] As well, it is important to note that these events took place more than seven years ago. The individuals who were residents at the time are no longer residents. It is unclear from the evidence whether any of the Residents remain at LHSC. The plaintiff has moved on as well. He is no longer working in a teaching capacity and has nothing to do with the defendants in this action. There is no evidence to suggest that the plaintiff will somehow seek to deliver some form of retribution to the Residents if their identities are revealed. There is no evidence of a history of conduct on the part of the plaintiff that would give rise to a concern in this respect.

[17] LHSC argued that the plaintiff’s complaints in this action are really about the process followed by LHSC as part of its investigation and not about the substance of the complaints made about the plaintiff by the Residents. In this light, LHSC submits that the identity of the Residents is not important. The plaintiff takes issue with this interpretation. He argued that Ms. Hewitt’s report and its contents were at the centre of his claim. However, even if this action is solely about fair process, the names of the Residents may still be relevant and important. Who did Ms. Hewitt interview and who was not interviewed? What interpretation may have been placed on the evidence provided by the Residents? Did the report contain any inaccuracies? In my view, the identity of the Residents interviewed by Ms. Hewitt is relevant to process as well.

[18] Fairness requires that the plaintiff be given an opportunity to test the information that may have been provided to Ms. Hewitt by the Residents. The plaintiff has no other way of identifying the Residents other than through disclosure by LHSC and production of Ms. Hewitt’s file. Their evidence is relevant and important. LHSC has pleaded very specific facts about the plaintiff’s interaction with the Residents and comments he allegedly made about other LHSC employees. Fairness requires that the plaintiff be given a full opportunity to respond these allegations.

[19] LHSC placed particular reliance on two decisions. The first is the decision of the British Columbia Supreme Court in Smith (Committee of) v. Royal Columbian Hospital, [1981] BCJ No. 1796 (BCSC). In Smith, the plaintiff requested all documents in the hospital’s possession relating to any investigation of the defendant physician by the hospital’s credentials committee. The court held that the public interest in protecting confidentiality when it comes to the credentials of physicians outweighed the interest that would be promoted by the requested disclosure and in terms of the correct outcome of that particular litigation. It declined to order production on the basis of privilege. See Smith at paragraph 27. However, it is important to note that Smith is a medical malpractice action. The documents the plaintiff was seeking had nothing to do with the plaintiff himself. They were about the defendant physician generally. The plaintiff was hoping to find documents that might assist him in establishing negligence in terms of the physician’s treatment of the plaintiff. The court noted that other evidence was readily available to the plaintiff, such as hospital charts, notes and records. The court described the documents the plaintiff was seeking as providing a “remote possibility of further insight into the particular issue in dispute”. See Smith at paragraph 21.

[20] The matter before the court on this motion is very different. The information the plaintiff is seeking is actually about the plaintiff himself. The plaintiff has no other way of obtaining this information. The requested information is far from “remote”. It is clearly relevant to an important matter in issue and squarely raised in the pleading delivered by LHSC. I do not view Smith as persuasive in the circumstances of this motion.

[21] LHSC also relied on the decision of the Ontario Court of Appeal in Straka v. Humber River Regional Hospital, 2000 16979 (ON CA), [2000] OJ No. 4212 (CA). Straka was about a doctor who had been denied privileges because of concerns raised in reference letters from doctors at a hospital at which the plaintiff had previously worked. The case was about the doctor’s credentials and abilities. It clearly involved a matter of important public interest potentially affecting patient care and safety. Moreover, the Court of Appeal noted that the plaintiff had other administrative remedies available to him to pursue his ultimate goal of obtaining full privileges at the defendant hospital. Production of the subject letters may very well be made as part of those other potential proceedings. In those circumstances, the Court of Appeal upheld the privilege claim. See Straka at paragraphs 80 to 83.

[22] Again, the facts of Straka are very different from the facts on this motion. This case is not about physician credentials or patient safety. The plaintiff has no other procedure available to him to obtain the relief he is seeking. I therefore do not view Straka as applicable, given the very different considerations raised on this motion.

[23] I have therefore concluded, in the circumstances of this action, that the public interest in the correct outcome of this litigation outweighs any interest in protecting the identity of the Residents. The claim for privilege by LHSC has not been established. LHSC shall answer questions 320-321; 339-346; 350-352; 388; 391-392; 395 and 397.

[24] In view of my decision on the issue of the claim for privilege, it is not necessary for the court to address the question of waiver.

NON-PARTY PRODUCTION

[25] The plaintiff seeks production from Filion of the file kept by Ms. Hewitt in connection with her investigation. Filion does not object to the production of the file but requires a court order. LHSC does not oppose production of the file, subject to the redaction of any information that would identify the Residents.

[26] For the reasons set out above, it is clear that the file is relevant to a matter in issue in this proceeding. Filion is the only source for the documents contained in the file. It would be unfair to require the plaintiff to proceed to trial without discovery of the file. Given my decision on the privilege claim, it is no longer necessary that any of the file be redacted. Filion shall provide the file to counsel for the plaintiff within 30 days of being served with a copy of the formal order from this motion.

OTHER REFUSALS

[27] Two other refused questions remain in issue. The first seeks copies of communications and summaries of meetings between LHSC medical affairs staff and Ms. Hewitt and the same in respect of any internal communications between medical affairs staff concerning Ms. Hewitt’s investigation. LHSC’s first position is that this request is too broad. It argued that Ms. Hewitt advised that she only recalled communicating with Dr. Kernaghan and all of those communications have been produced. Second, it takes the position that the plaintiff did not ask for internal hospital communications.

[28] In my view, a more complete answer is required. As I have stated above, Ms. Hewitt’s investigation is obviously relevant to the matters in issue in this action. LHSC has produced Dr. Kernaghan’s documents relevant to this issue. To the extent that other medical affairs individuals were involved with Ms. Hewitt’s investigation, their communications should be produced as well. This order extends to internal communications among medical affairs staff. The plaintiff did ask for production of internal communications concerning this issue at question 352, pages 70 to 71 of the transcript. Questions 350 to 352 shall be answered by expanding the scope of the answer already given to include all medical affairs staff and internal communications.

[29] The second outstanding refusal is a request by the plaintiff for any knowledge, information and belief the hospital may have about why Ms. Hewitt’s report was delivered on May 31, 2010, the day the plaintiff resigned. In my view, this question has been answered. LHSC has advised that the report was delivered on May 31, 2010 because that is when it was ready. The plaintiff did not specifically ask whether someone from LHSC asked for the report on a particular day or whether LHSC pressured Ms. Hewitt into delivering the report on May 31, 2010. Nothing further is required in connection with the refused questions 354 to 371.

UNDERTAKINGS

[30] Three undertakings remain in dispute. The first is in relation to the requirement under the stipend funding that psychiatrists on staff sign a consent to allow the chief of psychiatry to report to all other psychiatrists regarding the operation of the stipend fund. This requirement was not followed by LHSC. The witness produced on behalf of LHSC gave evidence that he was not aware of the requirement. No further answer has been provided. However, the undertaking by LHSC was to let the plaintiff know if its position changed. There is no undertaking to confirm the evidence given by the LHSC witness. It is therefore reasonable to assume that the position of LHSC has not changed. This undertaking is not outstanding. Nothing further is required in respect of question 52.

[31] In my view, no ruling is required in respect of the undertaking purportedly given at questions 339 to 346. This undertaking deals with the communications between LHSC medical affairs and Ms. Hewitt. The information requested has been addressed by my order in respect of the refusal at questions 350 to 352 and the order for non-party production.

[32] The last undertaking in dispute relates to documents arising from the investigation of the plaintiff conducted by the CPSO. The plaintiff asked for a summary of the contents of the CPSO documents listed at Schedule B to the LHSC affidavit of documents. It is clear from the answer to question 443 at page 88 of the transcript that counsel for LHSC gave exactly that undertaking. The undertaking has not been answered. Counsel for LHSC did express some concern about the privilege issue but that issue has now been determined by my ruling above. Questions 443 to 446 shall be answered.

[33] To the extent that I have ordered questions to be answered, they shall be answered within 60 days.

[34] I therefore order as follows:

(a) LHSC shall answer questions 320-321; 339-346; 350-352; 388; 391-392; 395; 397; and 443-446, within 60 days;

(b) LHSC shall answer questions 350-352 by expanding the scope of the answer already given to include all medical affairs staff and internal communications, within 60 days;

(c) No other outstanding questions need be answered by LHSC;

(d) The non-party Filion shall produce the file kept by Ms. Hewitt to counsel for the plaintiff, without redactions, within 30 days of being served with a copy of the formal order from this motion; and,

(e) If the parties are unable to agree on the issue of re-attendance, or the costs of this motion, they shall provide the court with brief written submissions by October 23, 2017.

Master R.A. Muir

DATE: 20170920