Kinnear v. Kinnear, 2021 ONSC 6539

COURT FILE NO.: 05-104/20

DATE: 20211007

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

RUSSELL ROBERT KINNEAR

Applicant

– and –

CHRISTOPHER KINNEAR, PERSONALLY AND AS THE ESTATE TRUSTEE FOR THE ESTATE OF RUSSELL BARR KINNEAR, DECEASED, and MARA KINNEAR

Respondents

Peter Askew, for the Applicant

Peter Woloshyn, for the Respondents Christopher Kinnear and Mara Kinnear

HEARD: September 24, 2021

REASONS FOR DECISION

DIETRICH J.

Overview

1This matter involves two brothers and a dispute over their late father’s estate. On June 19, 2020, the applicant Russell Robert Kinnear commenced an application to challenge the validity of the last will and testament of his late father Russell Barr Kinnear (the “Deceased”). The Deceased made the impugned will on August 13, 2015 (the “Will”). He died on October 11, 2016.

2The applicant’s challenge is based on the Deceased’s alleged lack of testamentary capacity when he made the Will, and on alleged undue influence by the applicant’s brother, the respondent Christopher Kinnear, and Christopher Kinnear’s spouse, Mara Kinnear, who is also a respondent.

3In the Will, the Deceased appointed the respondent Christopher Kinnear as the Estate Trustee and named him as the sole beneficiary of the Deceased’s estate. On the same day as he made the Will, the Deceased executed powers of attorney in which he appointed the respondent Mara Kinnear as his attorney for property and his attorney for personal care.

4The respondents assert that the applicant’s challenge to the Will is statute-barred. They submit that the applicant knew, before the Deceased died, both that the Deceased had prepared the Will, and that neither the applicant, nor the applicant’s daughter, were beneficiaries under the Will. Therefore, the respondents assert that the applicable limitation period is the two-year limitation period, commencing on the date of the Deceased’s death.

5The respondents/moving parties bring this motion for an order for production of the applicant’s medical records and files for the period from January 1, 2015 to December 31, 2016 held by his psychiatrist Dr. Michelle Bonnie Clarke (the “psychiatric records”). They submit that the psychiatric records may include evidence that will support their limitation period defence.

6For the reasons that follow, I find that the psychiatric records should not be produced. They are confidential and privileged. The harm caused by production of the records would outweigh any benefit that might be gained if the psychiatric records did disclose evidence that could, potentially, contribute to the outcome of the litigation.

Background Facts

7The Deceased was 82 years of age at the time of his death. His wife had predeceased him approximately one year earlier. She died intestate.

8At the time of the Deceased’s death, the applicant and the applicant’s daughter had been living with the Deceased for several years. The applicant had also been caring for the Deceased prior to his death.

9The Will was prepared by a lawyer, Lois Anne Welwood, who met with the Deceased in her office in Orangeville, Ontario on August 6, 2015 to take his instructions. The respondent Mara Kinnear arranged for the consultation between the Deceased and Ms. Welwood, drove the Deceased to appointments with Ms. Welwood, and participated in the meeting in which the Deceased gave his instructions to Ms. Welwood.

10Ms. Welwood met with the Deceased a second time, on August 13, 2015, when he executed the Will and the powers of attorney for property and personal care appointing the respondent Mara Kinnear as his attorney.

11In a report by the Deceased’s physician, Dr. Mervyn Meharchand, dated September 1, 2015, Dr. Meharchand stated that the Deceased scored 13/30 on a Mini-Mental State Examination and was not competent to make financial decisions. The Deceased had suffered a serious brain injury years earlier.

12On June 15, 2016, the applicant wrote an email to the respondent Christopher Kinnear, in which “Will” was entered on the subject line. The email stated:

“You should know that dad wants to make changes with not [sic] acknowledgement that one ever existed I have to prove his words by one DR Michelle Clarke” (the “June 15, 2016 email”)

13During their respective cross-examinations on their affidavits, each of the applicant and Dr. Clarke declined to answer questions about the June 15, 2016 email on the basis of privilege.

Positions of the Parties

14The respondents submit that the court should, in the interests of justice, order the psychiatric records to be produced because they are only seeking production that is relevant to the Will, and because the applicant brought the psychiatric records into the proceeding through the June 15, 2016 email. They submit that production should be ordered in one of the following ways, as set out in their Amended Notice of Motion for Directions and in Schedule “C” to their factum:

1. An order requiring delivery of the psychiatric records to the applicant’s counsel on request; or

2. An order that Dr. Clarke, at the expense of the respondents, review the psychiatric records and produce to the respondents legible and readable copies of all such records containing direct or indirect references to the Deceased, his estate, his intentions concerning his estate, his estate planning, his preparations for and in regard to the Will, any discussions before or thereafter, in regard to any other will or power of attorney, any discussions concerning the Deceased’s estate and the applicant’s direct or indirect knowledge at any time and relating to any of the foregoing, and that she deliver electronic copies of such records to the applicant’s counsel on request; or

3. An order that Dr. Clarke, without delay, produce to the applicant’s counsel (care of Peter Askew and Gregory Sidlofsky) the psychiatric records; and within fourteen days of such delivery, counsel for the applicant shall meet with counsel to the respondents to review the psychiatric records to determine which records shall be produced in the litigation, such determination to be made on the basis that a psychiatric record shall be produced if it refers, directly or indirectly, to the Deceased, his estate, his estate planning, his preparations for and in regard to the execution of the Will, and the power of attorney dated August 13, 2015, or any other will or power of attorney, and the applicant’s direct or indirect knowledge of the foregoing; or

4. An order that Dr. Clarke shall produce to all parties in the within application copies of all psychiatric records that refer to the Deceased, his estate, his intentions concerning his estate, his estate planning, his preparations for and in regard to the execution of the Will, the beneficiaries of the Will, his Power of Attorney of August 13, 2015, or any other will or power of attorney, and the applicant’s direct or indirect knowledge of the foregoing.

15The applicant submits that the respondents’ motion for production of the psychiatric records should be dismissed because the request for production is not appropriate or fair. He asserts that the respondents are seeking production of his highly sensitive psychiatric records over his objection and Dr. Clarke’s objection in a blatant effort to put pressure on him, cause him pain and suffering, and to fish for evidence in support of an alleged limitation period defence. He further submits that the psychiatric records are privileged, confidential and of no relevance to the matters at issue in his application.

Evidence

16The applicant swore an affidavit on June 11, 2020 in which he deposed that:

1. He knew that his father was going to see a lawyer in Orangeville in August 2015, but he believed that the purpose of the attendance was to sign a power of attorney.

2. He was never informed by either respondent that the Deceased had signed a will, and he only discovered the Will in February 2020 when his lawyer obtained from the court registrar a copy of Christopher Kinnear’s Application for a Certificate of Appointment of Estate Trustee with a Will.

17The applicant swore a second affidavit on October 30, 2020. In that affidavit he deposed that the June 15, 2016 email contains “a jumble of thoughts (I suffer from health issues that cause my mind to race) but as best as I can recall, I was again warning Chris not to have any will signed by my Father given his condition.” The applicant further deposed that he would not consent to the production of the psychiatric records and that his medical information had no relevance to the matters in issue in the litigation.

18The respondent Christopher Kinnear swore an affidavit on October 16, 2020 in which he deposed that in August of 2015, he told the applicant that under the Deceased’s Will, he, Christopher Kinnear, was the sole beneficiary. The respondent Christopher Kinnear repeated this evidence in his affidavit sworn June 14, 2021. He further deposed that the applicant knew that the Deceased was going to see a lawyer in Orangeville on August 13, 2015, and that the applicant was invited to go with the Deceased and other family members to the lawyer’s office for a meeting regarding the Deceased’s estate planning.

19Dr. Clarke swore two affidavits in respect of this motion. She swore one on July 14, 2021, and a second on August 9, 2021. In the July 14, 2021 affidavit, Dr. Clarke deposed that:

1. She has been a registrant with the College of Physicians and Surgeons in Ontario since June 30, 1997, and that she has been providing psychiatric treatment to the applicant since 1997.

2. She considers, and advises her patients, that consultations and her clinical notes arising therefrom are confidential and will remain confidential.

3. Confidentiality is essential to the continued existence and effectiveness of her relationship with the applicant because it allows him to express himself freely during the consultations without fear of negative consequences, reprisal, or judgement. This confidentiality is important because it fosters an environment in which she can best diagnose and treat her patients.

4. Disclosure of the psychiatric records would result in harm to the applicant’s health and mental wellbeing. Further, it would be contrary to the applicant’s wishes and destabilizing to the applicant’s mental health, which has suffered as a consequence of his father’s death.

20On July 14, 2021, Dr. Clarke also signed a Form 15 under the Mental Health Act, R.S.O. 1990, c. M.7 in which she stated that the disclosure, transmittal, or examination of the psychiatric records would likely result in “harm to the treatment or recovery” of the applicant.

21Dr. Clarke swore a second affidavit on August 9, 2021 in which she deposed that her opinion regarding the harm in disclosing the psychiatric records would not change even if the disclosure were circumscribed as suggested by the respondents in the alternative relief they were then seeking (as set out in para. 14, subpara. 4 above). Dr. Clarke signed a fresh Form 15 to this effect on August 9, 2021.

Issue

22The issue on this motion is whether the production of the psychiatric records should be made in the interests of justice.

Law

23The limitation period for a will challenge in Ontario is two years from the date of death of the testator, subject to the doctrine of discoverability: Leibel v. Leibel, 2014 ONSC 4516, O.J. No. 3745 at paras. 34-53.

24The court is entitled to make an order for production for inspection of a document that is in the possession of a non-party and is not privileged, under r. 30.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 if: a) the document is relevant to a material issue in the action; and b) it would be unfair to require the moving party to proceed to trial without having discovery of the document.

Analysis

Are the psychiatric records privileged?

25The respondents assert that an adverse inference should be drawn from the refusal of the applicant and Dr. Clarke to answer questions relating to the June 15, 2016 email. That is, that the refusals mean that the answers would have been harmful to the applicant’s case and his claim that he was unaware of the existence of the Will until February 2020.

26On his examination, the applicant refused to answer any question regarding the contents of the psychiatric records on the basis of privilege.

27In the Supreme Court of Canada’s decision in M. (A.) v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 SCR 157 at paras. 24, 25, 27 and 29, McLachlin J., on behalf of the Court, set out four necessary requirements to support a claim for privilege over communications between a patient and their psychiatrist: a) the communication at issue originated in a confidence that it would not be disclosed; b) the element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties; c) the relation must be one which in the opinion of the community ought to be sedulously fostered; and d) the interests served by protecting the communications from disclosure outweigh the interest of pursuing the truth and disposing correctly of the litigation.

28The respondents assert that the applicant, in sharing the June 15, 2016 email with the respondent Christopher Kinnear, has partially waived, expressly or impliedly, his right to privacy over communications between himself and Dr. Clarke at least with respect to the meaning of “I have to prove his words by one DR Michelle Clarke,” as set out in the June 15, 2016 email. I disagree. To waive privilege, the possessor of the privilege needs to be aware of the existence of the privilege and have an intention to waive the privilege. There is no such evidence here. The applicant has consistently opposed disclosure of any of the psychiatric records.

29Dr. Clarke’s evidence confirms that the first three requirements set out in Ryan have been met. On cross-examination, Dr. Clarke testified that she did not believe that any of the options for production set out in the respondents’ Reply Motion Record and Factum were, from her perspective, “good options.” Dr. Clarke confirmed that confidentiality is the foundation of the relationship between a psychiatrist and his or her patient and must be fostered to create an environment in which proper diagnosis and proper treatment can occur.

30Regarding the fourth requirement in Ryan, McLachlin J. specifically cautions against extending patient-psychiatrist privilege to a point where injustice and a cloaking of the truth would occur. I see little risk of such a result in this case.

31In addressing the fourth requirement, the court must balance one alternative against the other. At para. 33 of Ryan, McLachlin J. states: “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.” In this case, in my view, the production of the psychiatric records is not necessary to prevent an unjust verdict. The litigation can likely be correctly disposed of without the production of the psychiatric records.

32The respondents have not produced evidence to show that psychiatric records include discussions between the applicant and Dr. Clarke pertaining to the Deceased and his estate planning generally, or the Will specifically. Nor have they shown that the psychiatric records are likely to include such information. The June 15, 2016 email is not a particularly helpful indicator of what, if anything, the psychiatric records may contain with respect to the Will, or the applicant’s knowledge of its contents.

33The record shows that the author of the June 15, 2016 email, the applicant himself, could not explain its meaning. In his affidavit dated October 30, 2020, he disputes the respondent Christopher Kinnear’s assertion that the email is proof of the applicant’s knowledge of the Will. The applicant describes the email as “a jumble of thoughts (I suffer from health issues that cause my mind to race) but as best I can recall, I was again warning Chris not to have any will signed by my father given his condition.”

34At best, the note is cryptic when it comes to any involvement of Dr. Clarke: “… I have to prove his words by one DR Michelle Clarke.” One could speculate that the applicant might engage Dr. Clarke in a discussion about his father’s estate planning, but there is no evidence to suggest that he actually did. In his cross-examination, when asked about the psychiatric records and the Will, the applicant deposed that there would be nothing in the psychiatric records about the Will. In Ryan, McLachlin J. stated at para. 37, that “documents of questionable relevance or which contain information from other sources may be declared privileged.” In my view, the psychiatric records would be of questionable relevance, and are privileged. The disclosure of them is not necessary to prevent an unjust result.

35I agree with the applicant’s submission that the respondents can obtain information in support of their alleged limitation period defence from other sources. The respondents can rely on the evidence of the drafting solicitor, and their own email exchanges with the applicant, as well as the evidence provided by the applicant. Reliance on these sources, as opposed to the psychiatric records, will protect the applicant’s privacy respecting the confidential psychiatric records. Further, this approach would address the risk raised by Dr. Clarke of potential serious harm to the applicant’s mental health and future treatment, which could arise as a consequence of permitting the respondents access to the psychiatric records.

Should the applicant’s privacy be protected?

36In this case, the applicant’s privacy interest is compelling. Dr. Clarke deposed that the release of the records, even if circumscribed as proposed by the respondents, would be destabilizing to the applicant’s mental health. The applicant suffered from depression and was hospitalized following the Deceased’s death.

37The applicant submits that the psychiatric records were made in strict confidence and are highly personal and sensitive to him. He does not want the contents of these records disclosed to the respondents. During the period covered by the request for production, the applicant lost his mother to cancer in July 2015 and his father shortly thereafter in October 2016. He deposed that he was very close to both of them and their deaths took a significant emotional toll on him. During the same period, he was in discussions with a former spouse regarding custody of their child. He wishes to keep those discussions private from the respondents and their counsel.

38The applicant further submits that if Dr. Clarke were to disclose any details of his consultations with her to a third party, especially the respondents or their counsel, the production would be detrimental to the treatment he is receiving for his mental health. He would no longer feel comfortable disclosing highly personal information to Dr. Clarke.

39There are persuasive reasons for protecting the psychiatric records in this case. As Dr. Clarke deposed, the element of confidentiality is essential to her relationship with the applicant, which has spanned more than 20 years. As stated by McLachlin J. in Ryan at para. 27, “the mental health of the citizenry, no less than physical health, is a public good of great importance.”

40I am satisfied that the interests served by protecting the communications from disclosure include preserving the applicant’s present mental health, his ongoing relationship with Dr. Clarke, and his future treatment.

41In my view, an order for production in a case such as this could have effect beyond this case. If production were ordered, others seeking psychiatric attention may feel less secure about whether their medical records would, in fact, be kept confidential. This insecurity could lead to less open communications with their mental health professionals and could prove detrimental to their treatment.

Disposition and Costs

42The moving parties/respondents’ motion is dismissed. The applicant/responding party is entitled to his costs. Each of the parties has submitted a Costs Outline. The costs that each would seek on a partial indemnity basis, if successful, are not far apart, though the moving parties/respondents have incurred more disbursement charges. I fix the applicant/responding party’s costs at $13,167.51 inclusive, which I find to be fair and reasonable. These costs are payable by the moving parties/respondents within 30 days.

Dietrich J.