Court File and Parties

COURT FILE NO.: CV-13-482813

DATE: 20180529

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: AHMED SALEH, Plaintiff

– AND –

MANORANJAM AMBALAVANAR and SHANTHINI SAMBASIVAM, Defendants

BEFORE: E.M. Morgan J.

COUNSEL: Mark De Sanctis, for the Plaintiff

Saro Setrakian, for the Defendants

HEARD: May 29, 2018

ENDORSEMENT

[1] This is an appeal and cross-appeal of a ruling by Master Short dated February 13, 2018.

[2] The learned Master ordered that the Plaintiff produce medical records from 10 years ago based on the specific type of injury claimed to be suffered by the Plaintiff. He also refused to order the production of the Plaintiff’s accident benefits file from a prior accident.

[3] Counsel for both sides essentially agree on the standard of review applicable here. As Perell J. stated in Ontario v Rothmans Inc., 2011 ONSC 2504, at para 98, “When considering whether a refused question should be answered, the Master has to determine whether the question is relevant, which is a matter of law…”

[4] The Plaintiff claims compensation for an injury to his shoulder. Apparently, he had no trouble with the shoulder for many years prior to the accident, but some 10 years before the accident he had surgery on his shoulder.

[5] On the issue of production of old medical records, the Master’s handwritten endorsement states:

Issue is whether Defendant entitled to production of surgeon’s records when operating on same shoulder as was injured in present case.

I understand 3-5 years is normal limit of medical history production.

But I feel proportionality directs relevance of specific injury note and of surgeon who operated.

[6] The Master relied on Webb v Jones, 2011 ONSC 2479. That case, at para 5, discusses a similar situation as here, and sets out the policy concerns, as follows:

The plaintiff’s pre-accident medical condition is relevant when it relates to similar complaints made after and attributed to his accident. This does not entitle the defence to go on a fishing trip through the plaintiff’s medical history; however, it does entitle the defence to target specific types of complaints and question whether these arise from a pre-existing condition… In this case, I am satisfied that the defence has targeted specific complaints that may have been extant before the accident.

[7] The applicable test on discovery and production is “that which is actually relevant”. The current Rules also require the court to consider numerous factors, “including time, expense, and undue prejudice that could result in answering a question or producing documents”: Robbins v Sears Canada Inc., 2015 ONSC 660. This has generally led to a 3-year rule for previous medical records: see King v Intact Insurance, 2017 ONSC 1657.

[8] In my view, the Master made the correct judgment call here. While 10 years is a rather longer time than is usual for production of medical records in an accident case, there was reason to go back that far here. Relevance is determined with reference to the pleadings and not simply by examining the state of the existing evidence: Denault v Alplay, 2016 ONSC 1618, at paras. 11, 16. It was what was called in Webb v Jones a targeted production order.

[9] Counsel for the Plaintiff argues that there is no causal nexus between the current injury and the older surgery. I do not agree with that assessment. While there must be something to make the records relevant in order to justify their production, the Defendant does not have to prove its case at this stage; it cannot do so before it sees the file that it seeks. There is, however, a sufficient nexus here between the two injuries to support a production order.

[10] I agree with Plaintiff’s counsel that there should be no fishing by defendants through a plaintiff’s medical records. However, I do not read the Master’s ruling as allowing that kind of general exploration through the Plaintiff’s medical history. The Master ordered production of the Plaintiff’s surgeon’s records from his older surgery, and nothing more. This is not “speculative discovery”, to use the phrase that Perell J. used in Rothmans, supra, at para 129.

[11] I see no errors in the Master’s decision that the medical file from the Plaintiff’s prior surgery be produced.

[12] The Plaintiff had been in an accident in 1999, and the Defendant sought his insurer’s accident benefits file from that injury. The Plaintiff has produced the accident benefits file from the current accident, but refused to produce the file from the older injury. The Master ruled that the older accident benefit file need not be produced.

[13] A similar issue was addressed in Peever v Waite, 2013 ONSC 7916. At para 11 of that decision, the court discussed the relevant points of principle and policy:

What is relevant is how this Plaintiff was doing in the years before the accident and this will be sufficiently disclosed in the medical disclosure pre-accident. The documents contained in the AB file for this prior accident will not assist in this regard considering the time between this earlier accident and the accident in this action of more than three years and maybe more than six years and the pre-accident medical disclosure to date from 2006 onward.

[14] In the penultimate paragraph of his endorsement, the Master came to the same conclusion on essentially the same line of reasoning:

I am not convinced that contents of insurers file which may have comments and evaluations of insurer’s reps at that time are relevant to the recent case as they are too dated and remote from the current case. The surgeon’s records will give the extent of background in this case which I feel appropriate.

[15] When the Master says that the insurer’s file is “too dated and remote from the current case”, his observation must be taken in light of the fact that he has ordered production of the old surgical records. The first hand medical records will provide the Defendant with the relevant information, while the accident benefits file will only provide second-hand information and, at this late date, potentially prejudicial and irrelevant commentary.

[16] I therefore see no error of law or misapprehension of the evidence in the Master’s ruling regarding that the 1999 accident benefits file need not be produced.

[17] The appeal and cross appeal are both dismissed.

[18] The result here has been mixed. The Plaintiff has upheld the Master’s ruling on the accident benefits file and the Defendant has upheld the Master’s ruling on the surgical file. There shall therefore be no costs ordered for or against either party.

Morgan J.

Date: May 29, 2018