COURT FILE NO.: C-27811-18
DATE: 2021-04-28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Nevaeh Dalcourt-Wilkins, a minor by her Litigation Guardian, Miranda Dalcourt-Wilkins, Annette Dalcourt and the said Miranda Dalcourt-Wilkins personally
Plaintiffs
– and –
Dr. Hemi Gupta, Dr. Philip Dopp, Dr. Paul Wild, Dr. James Curran, Dr. Shiva Kalidindi, Dr. Sandra Stevenson, Nurse Carolyn Brown, Nurse Deborah Fleming, Nurse Stephanie Whalen, Nurse Andrea Jagger, Nurse Janet Trunzo, Nurse Donna Honsberger, Nurse Karen Proschuk, Nurse Kristi Goslow, Nurse Jane Ross, Thomas Robert, Nancy Palumbo, Nurse J. Doe 1, Nurse J. Doe 2, Nurse J. Doe 3, J. Doe 4, J. Doe 5 and Sault Area Hospital
Defendants
N. Sampson for the plaintiffs
L. Graham for the defendants Brown, Fleming, Whalen, Jagger, Trunzo, Honsberger, Proschuk, Goslow, Ross, Robert, Palumbo and Sault Area Hospital (“the moving defendants”)
HEARD virtually at Sault Ste. Marie: April 19, 2021
REASONS FOR DECISION ON
MOTION TO ENFORCE UNDERTAKINGS
A.D. Kurke, J.
Overview
[1] The moving defendants seek an order compelling the plaintiffs to comply with undertakings given during their examinations for discovery on September 27, 2019 and April 28, 2020. The defendants assert that the plaintiffs undertook to produce two sets of documents, records from the Children’s Aid Society (“CAS”) and the Nogdawindamin Family and Community Services (“Nogdawindamin”) (collectively “the child welfare files”).
[2] The defendants claim that the plaintiffs undertook to produce the latter records unconditionally, while the former were subject to untenable qualifications of “relevance and privilege.” The plaintiffs counter that all these records were subject to the same qualifications, that the records are not relevant, and that a strong privacy interest attaches to them.
[3] For the reasons that follow, I dismiss the motion.
Background facts
[4] This is a medical malpractice action relating to the labour, delivery, and neonatal care of the minor plaintiff, born September 14, 2011. The plaintiffs allege that the medical care provided by the defendants breached the standard of care, causing devastating and permanent injuries and disabilities to the minor plaintiff.
[5] In total, the plaintiffs seek $35,000,000 in damages from the defendants, including $1 million in general damages and $25,000,000 in special damages for the minor plaintiff on the basis that she has lost the ability to lead an independent life or otherwise provide for herself. The Claim describes Miranda Dalcourt-Wilkins, the minor plaintiff’s mother (“Miranda”), and Annette Dalcourt, the minor plaintiff’s grandmother (“Annette”) as the primary past and future caretakers of the minor plaintiff. Miranda and Annette each claim $1 million in general damages and $3 million in special damages. Miranda seeks another $1 million for evidence spoliation.
[6] Discoveries took place on September 27, 2019, April 28, 2020, and May 5, 2020. Both Miranda and Annette were examined. During her examination for discovery, Miranda answered that the CAS became involved with her when she was pregnant with her second child, after a family acquaintance reported to CAS that Miranda was drinking and using drugs while pregnant. The CAS continued its involvement after it had investigated this initial claim. Miranda explained that they continued their involvement by conducting visits because she was a young mother with a special-needs child and another on the way, so they wanted to see “how she would do” with her second child. CAS involvement was not apparently triggered by any specific concern about Miranda’s care for the minor plaintiff.
[7] Miranda also explained that when the minor plaintiff was almost three years old, she lived with Annette in Blind River, with the support of the CAS. The minor plaintiff lived with Annette for about two years, and the CAS continued its involvement by “coming and doing check-ups.” Miranda described that the CAS “just kept popping in, and it was nonsense.” She explained that Annette complained about CAS involvement, and CAS closed its file, “because they had no reason to be there.”
[8] At discoveries, counsel for the moving defendants requested an undertaking for the production of the CAS file, which was given, subject to relevance and privilege.
[9] Later in her examination, Miranda stated that she lived for a “couple of months” with a friend on the Mississauga First Nation, during which time she became involved with Nogdawindamin. This agency had to work with Miranda because she had had CAS in her life and she was on the reserve. They continued to perform “check-ups.”
[10] A second undertaking was given to counsel for the physician defendants and only after hundreds of further questions had been asked and eighteen further undertakings had been given following the CAS undertaking. Counsel for the physician defendants asked plaintiffs’ counsel for an undertaking for the Nogdawindamin file: “in addition to my friend’s undertaking for the CAS…file, we’d also like the records from the Aboriginal Child Welfare file.” Counsel for the plaintiffs answered “sure”, but without any mention of the qualifications earlier attaching to the CAS file.
[11] In July 2020, plaintiffs’ counsel advised that he was refusing the child welfare files on “the ground of relevancy.” He claimed that the Nogdawindamin file was subject to the same privilege and relevance qualifications as had been the CAS file.
[12] Plaintiffs’ counsel did produce a CAS closing note dated March 20, 2018. The CAS had opened a file on the resumption of Miranda’s care of the minor plaintiff, as it wanted to ensure the safety and well-being of the minor plaintiff and Miranda’s other child. There were weekly visits during which Miranda’s parenting abilities were assessed, and Miranda demonstrated her caregiving skills and Annette remained a positive support to the family. Miranda described to the CAS worker the strict schedule and routine that the minor plaintiff followed and showed her awareness of her children’s upcoming appointments. The CAS was satisfied that Miranda was providing good care to both children and there were no further protection concerns.
[13] The plaintiffs have provided to the defendants more than 3,500 pages of medical records and documentation that relate to the minor plaintiff’s birth and her care by multiple specialists over the course of her life. Expert reports on standard of care, causation and damages have been served, including comprehensive reports dealing with the minor plaintiff’s present and future care needs.
[14] The physician defendants take no position on this motion and have told plaintiffs’ counsel that they do not require the child welfare files. The plaintiffs have received no request that these records are required for any assessment by an expert.
[15] The CAS and Nogdawindamin, the child welfare agencies whose files are at issue, were not served with the motion material.
The undertakings
[16] Rule 31.07(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, states, with respect to undertakings, that "[f]or greater certainty, nothing in these rules relieves a party or other person who undertakes to answer a question from the obligation to honour the undertaking." Once undertakings, including undertakings to produce documents, have been given without qualification, they must be honoured, even if the party that made the undertaking subsequently regrets that decision: Fyffe (c.o.b. Fyffe Logging) v. Ontrac Equipment Services Inc., [2008] O.J. No. 3723 (Sup. Ct.), at para. 12; Towne v. Miller (2001), 2001 CanLII 28006 (ON SC), 56 O.R. (3d) 177 (Sup. Ct.), at paras. 8-13.
[17] But this rule applies to undertakings that have been made but are subsequently refused. The plaintiffs argue that the CAS records were irrelevant and that they stated the qualification for relevance at the time of the request for them. It is the moving defendants’ preliminary position that no such qualification was attached to the Nogdawindamin file, and that it cannot be added after the fact. I will consider this issue first.
[18] In his affidavit on this motion counsel for the plaintiffs on the examinations for discovery states that when he answered “sure” to whether he would undertake to produce the Nogdawindamin file, he intended to convey his acknowledgement of that file’s inclusion in the prior undertaking for the CAS file, which had been made subject to relevance and privilege, and not his agreement to produce it as relevant. The defendants argue that this explanation cannot be accepted, given that the undertaking was made to different counsel, and after so much time had passed and so many further questions had been answered since the CAS file request and answer. Moreover, they assert that plaintiff counsel’s delay in offering this explanation also tells against the explanation.
[19] I do not agree. After getting and reviewing the child welfare files, counsel for the plaintiffs advised the moving defendants of his position on relevance with respect to both files. His late-arriving explanation that he intended by his answer at the examination to put the Nogdawindamin file in the same undertaking as the CAS file causes little concern, given its obvious accuracy. Plaintiffs’ counsel’s answer about the Nogdawindamin file was given in the context of the CAS file, which figured in the request by counsel for the physician defendants. Moreover, it would make no sense for counsel who had been so careful with respect to qualifying his undertaking to produce the CAS file to have had no such concerns with respect to the “Aboriginal Child Welfare” file. I find that the undertaking to produce the Nogdawindamin file was given subject to relevance and privilege, just as with respect to the CAS file.
Relevance and proportionality
[20] The moving defendants submit that the child welfare files are relevant and essential to:
a. The minor plaintiff’s large special damages claim, to provide “a proportionate degree of information as to the living conditions that [the minor plaintiff] has and will continue to occupy,” including the nature of her living space, and the impact of her living conditions on her mental, social and physical well-being;
b. Assess the source of the minor plaintiff’s difficulties, as there is evidence to suggest that the CAS had an independent reason to be involved with the minor plaintiff’s care in her first six and a half years, and there may be other explanations for the minor plaintiff’s damages;
c. The issue of Miranda’s and Annette’s claims for general damages and their loss of the minor plaintiff’s companionship. The records will assist in better delineating when the minor plaintiff was living with each adult plaintiff and why the custody arrangements changed, issues which are relevant to the damage claim of each adult plaintiff.
[21] The plaintiffs resist the disclosure on the bases of irrelevance and of proportionality, in that any relevant information that the child welfare files may contain is outweighed by the undue prejudice that would be caused to the plaintiffs from the disclosure of such highly sensitive and personal files and the fact that the information sought is available from other sources: Rule 29.2.03.
[22] I am not satisfied that any of the headings of relevance advanced by the moving defendants justifies disclosure of the child welfare files. Child welfare involvement is highly intrusive and child welfare files are replete with deeply personal information. Their disclosure is prejudicial in that it will inevitably involve the exposure of personal and irrelevant information about the adult plaintiffs’ or other persons’ lives. Unbounded requests for disclosure such as the ones in this case must therefore cause concern that the moving defendants seek such records for the unstated and irrelevant purpose of finding means of attacking the plaintiffs’ credibility: Kabutangana v. Coachman Insurance Co., 2016 ONSC 6330, at para. 46; Finlayson v. Mercanti (Trustee of), [2008] O.J. No. 2295 (Sup. Ct.), at para. 17.
[23] As to the housing needs of the minor plaintiff, the expert reports on this subject prepared at the behest of the parties provide more than sufficient information to permit this issue to be assessed. The CAS assesses protection concerns but is not an agency for medical assessment of such intricate issues as those besetting the minor plaintiff. Broad production of entire child welfare files with the hope of finding the occasional nugget of observational information therein that may be relevant to this issue is highly prejudicial. Great quantities of deeply personal but irrelevant information may be expected to be maintained in such files and exposed by their disclosure: Romain v. Reid, 2020 ONSC 1405, at para. 12.
[24] The second heading of relevance advanced by the moving defendants is entirely speculative. This is a medical malpractice case, and the medical evidence relating to this case is voluminous. The possibility that some observations from CAS personnel might somehow assist the moving defendants to advance some alternative or contributing causes of the minor plaintiff’s damages is unlikely and in fact appears to be countered by the highly supportive CAS closing note: Finlayson, at para. 20.
[25] The third heading was readily capable of determination from other sources rather than from the disclosure of such personal and potentially extensive records as the child welfare files. The adult plaintiffs were examined for discovery and could explain the timing of and reasons for changes of residence if asked. Less-sensitive documentation from other social or governmental agencies could be queried to confirm dates of the minor plaintiff’s residence with each adult plaintiff. It is disproportionate to this heading of relevance to require the disclosure of entire child welfare files, with all the intrusiveness into the private lives of parties and non-parties that such disclosure entails: Kabutangana, at para. 46.
[26] There were many opportunities for the moving defendants to enhance and focus the disclosure requests for the child welfare files by deeper questioning at the examinations for discovery of the adult plaintiffs about such things as: what issues personnel from the child welfare agencies particularly concerned themselves with, details of their attendances, the duration of their visits, and their involvement and interaction with the minor plaintiff and the adult plaintiffs.
[27] If such detail was garnered at the discoveries, it was not put before this court. The court was left with bare and colourless indications of child welfare involvement and mostly speculative assertions about what the child welfare files would contain. In such circumstances, the requested disclosure of the files seems significantly prejudicial to the plaintiffs, in terms of the possibility of misuse of the files and the disclosure of unmeasured quantities of highly personal information.
[28] The defendants urge that there is authority for the proposition that any prejudice can be limited by redaction of irrelevant information in the child welfare files: Gupta v. Singh, 2015 ONSC 4582, at paras. 9-10. In the Gupta case, the motion judge determined that the CAS records were relevant to the adult plaintiff’s mental state for reasons peculiar to that case. The court held that the plaintiff’s specific concern that the CAS records would reveal personal details about the plaintiff’s autistic son could be dealt with by redaction of the records. However, in the case before this court, the range of prejudicial and irrelevant information to be redacted is potentially boundless, and the CAS, which might have been able to help in this enterprise, was not invited to take part. Gupta does not assist here as precedent.
Conclusion
[29] For the above reasons, the motion by the moving defendants to enforce the undertakings relating to the child welfare files is dismissed.
[30] If the parties are unable to agree on costs, they may provide to the Court written submissions of no more than three double-spaced pages within thirty days, failing which the issue will be presumed to have been settled.
Justice A.D. Kurke
Released: April 28, 2021
COURT FILE NO.: C-27811-18
DATE: 2021-04-28
ONTARIO
SUPERIOR COURT OF JUSTICE
Nevaeh Dalcourt-Wilkins, a minor by her Litigation Guardian, Miranda Dalcourt-Wilkins, Annette Dalcourt and the said Miranda Dalcourt-Wilkins personally
Plaintiffs
– and –
Dr. Hemi Gupta, Dr. Philip Dopp, Dr. Paul Wild, Dr. James Curran, Dr. Shiva Kalidindi, Dr. Sandra Stevenson, Nurse Carolyn Brown, Nurse Deborah Fleming, Nurse Stephanie Whalen, Nurse Andrea Jagger, Nurse Janet Trunzo, Nurse Donna Honsberger, Nurse Karen Proschuk, Nurse Kristi Goslow, Nurse Jane Ross, Thomas Robert, Nancy Palumbo, Nurse J. Doe 1, Nurse J. Doe 2, Nurse J. Doe 3, J. Doe 4, J. Doe 5 and Sault Area Hospital
Defendants
REASONS FOR DECISION ON MOTION
TO ENFORCE UNDERTAKINGS
A.D. KURKE J.
Released: April 28, 2021