Court File and Parties

COURT FILE NO.: CV-18-60330 and CV-19-611975 DATE: 20230417 ONTARIO SUPERIOR COURT OF JUSTICE

RE: Nora Algarawi (a minor by her litigation guardian) et al., plaintiffs (appellants) -and- Dr. Howard Berger et al., defendants (respondents)

RE: Hezekiah Porter (a minor by his litigation guardian) et al., plaintiffs (appellants) -and- Dr. Marilyn Sutandar et al., defendants (respondents)

BEFORE: Robert Centa J.

COUNSEL: Mahsa Dabirian and Ryan Marinacci, for the plaintiffs in both proceedings Adam Goldenberg, Leah Ostler, and Kate Martini, for the defendant physicians in both proceedings Keegan Boyd and Henry Ngan, for the defendant hospitals and nurses in both proceedings

HEARD: March 16, 2023

Endorsement

[1] Does the common law of evidence in Ontario still recognize quality assurance privilege over documents and communications generated in processes aimed at improving the quality of patient care?

[2] The plaintiffs in two separate medical negligence actions requested that the defendants produce 12 documents that they generated for use in quality of care review processes at the defendant hospitals. The defendants declined to produce the disputed documents on the basis that they were irrelevant and because they met the four-part Wigmore test to establish a case-by-case evidentiary privilege. When the plaintiffs asked questions during discovery about these documents and the quality assurance process, the defendants refused to answer these questions on the basis of relevance and privilege.

[3] Each plaintiff moved for an order compelling the defendants to produce the disputed documents and to answer the discovery questions. The motions were argued together. Associate Justice Abrams dismissed the motions for two reasons:

a. the information and documents sought by the plaintiffs were irrelevant to the proceedings; and

b. the information and documents were protected by a common law “quality assurance privilege” which had not been extinguished by the provisions of the Quality of Care Information Protection Act, 2016. [1]

[4] The plaintiffs appealed this decision to me and I also heard both appeals together.

[5] For the reasons that follow, I dismiss the appeals. While I conclude that the documents and information are relevant, the associate justice correctly concluded that the documents are protected by a common law evidentiary privilege.

The two actions

[6] This appeal concerns discovery disputes in two separate actions, which I will describe only briefly.

Algarawi

[7] On August 16, 2016, Nora Algarawi was born at St. Michael’s Hospital (now Unity Health Toronto) flat with no pulse after her head was found outside the uterus during an emergency caesarean. Sakina Mahamat-Taha's uterus ruptured during a trial of labour after caesarean. Nora suffered from hypoxic ischemic encephalopathy and consequent significant personal injuries. She spent two months in the hospital.

[8] On August 15, 2018, Nora and her family sued Unity Health Toronto, several nurses, and six doctors including Dr. Howard Berger and Dr. Filomena Meffe. The claim sought $15 million in damages for Nora and asserted that the defendants provided care that was negligent and breached a range of contractual and fiduciary duties owed to Nora and Ms. Taha.

Porter

[9] On January 9, 2017, Hezekiah Porter was born at the William Osler Health Centre flat with a complete brachial plexus injury, flaccid right arm, and a non-displaced clavicle fracture. Weighing over 12 pounds, he was delivered by emergency caesarean after an unsuccessful attempt to deliver him vaginally. Two months later, he underwent a right brachial plexus reconstruction with bilateral sural nerve grafts and right spinal accessory to subscapular nerve transfer.

[10] On January 4, 2019, Hezekiah and his family sued the William Osler Health Centre, several nurses, and four doctors including Dr. Marilyn Sutandar.

Standard of review

[11] The normal appellate standards of review from Housen v. Nikolaisen apply on an appeal from a decision of an associate judge. [2]

[12] The standard of review on a question of law is correctness. [3]

[13] The standard of review for findings of fact is palpable and overriding error, which is a much more deferential standard of review than correctness. A palpable error is one that is clear to the mind or plain to see. An overriding error is one that is determinative. [4] An error must be both palpable and overriding to provide a basis for an appellate body to interfere with a finding of fact.

[14] The application of a legal standard to a set of facts is a question of mixed fact and law. [5] The standard of review on findings of mixed fact and law lies along a spectrum. Where the error of the decision-maker can be traced to a clear error in principle, it may be characterized as an error of law and subjected to a standard of correctness. Where the legal principle is not readily extricable, then the matter is subject to the standard of palpable and overriding error. [6]

Issue one: the disputed documents and refused questions are relevant

[15] Associate Justice Abrams held that the documents and information sought by the plaintiffs were irrelevant. In my view, she erred in reaching this conclusion. However, because I find that the documents and answers are nevertheless privileged, my conclusion does not alter the result she reached.

The standard of review is correctness

[16] The defendants submit that Associate Justice Abrams’ determination of whether or not a refused question or document is relevant is a question of mixed fact and law and that unless an extricable error of law is established, a court should only intervene where there is a palpable and overriding error. [7] I disagree.

[17] The relevance of evidence is a question of law. [8] The standard of review for a question of law, including determinations of relevance, is correctness. [9]

The legal concept of relevance

[18] To be received at trial, evidence must be admissible, and the trial judge must not have exercised her discretion to exclude the evidence. To be admissible, evidence must be relevant and not subject to exclusion under any other rules of law or policy (for example, because of privilege).

[19] For evidence to be relevant, it must have some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely or less likely than the proposition would be in the absence of the evidence. [10] This is not a high bar.

[20] Determining relevance is an exercise in the application of experience and common sense. [11] Justice Doherty put it this way:

Relevance as explained in these authorities requires a determination of whether as a matter of human experience and logic the existence of "Fact A" makes the existence or non-existence of "Fact B" more probable than it would be without the existence of "Fact A". If it does then "Fact A" is relevant to "Fact B". As long as "Fact B" is itself a material fact in issue or is relevant to a material fact in issue in the litigation then "Fact A" is relevant and prima facie admissible. [12]

[21] Relevance on discovery is determined by the pleadings. If even one part of a document is relevant, it must be produced. [13] Every document relevant to any matter in issue in an action that is or has been in the possession, power, or control of a party to the action shall be disclosed. [14] A document may be produced for discovery because it is relevant notwithstanding that it may not be admissible at trial. [15] A person examined for discovery shall answer any proper question relevant to any matter in issue in the proceeding. [16]

The disputed documents are not relevant simply because they were listed in Schedule B or C

[22] The plaintiffs submit that the defendants have conceded that the disputed documents are relevant because all 12 documents are listed in Schedule B or C to a defendant’s affidavit of documents.

[23] An affidavit of documents discloses, to the best of the affiant’s knowledge, “all documents that are relevant to any matter in issue in this action that are or have been” in the affiant’s power, possession, or control. Schedule B of an affidavit of documents contains a list of those relevant documents that the affiant objects to producing because of privilege. The plaintiffs submit that because the defendants made these sworn declarations, they may not now claim that the documents are not relevant.

[24] I would not give effect to this argument for three reasons.

[25] First, the plaintiffs raised this argument for the first time during oral argument. They did not raise this argument before the associate justice or in the factum submitted on appeal. New issues may not generally be raised for the first time on appeal, much less during oral argument. [17]

[26] Second, it appears that the plaintiffs asked the defendants to include the disputed documents in an amended Schedule B. On August 3, 2021, counsel for the plaintiffs wrote as follows:

I am writing to request a particularized Schedule B from your respective clients as required under r 30.03 in relation to the care review, setting out all documents in the possession, control or power of the Defendants over which you claim quality assurance privilege, as well as the author of each document, a description of the document, the date of the document and the addressee of the document.

[27] I note that this letter does not describe the documents to be included as relevant. If the defendants included the documents in Schedule B because the plaintiffs asked them to do so, that would undermine the strength of the argument that the defendants should be bound by an “admission” that the disputed documents were relevant.

[28] Third, because this issue was not raised before the associate justice, I do not have the benefit of a complete record of correspondence among counsel that might help me assess what conclusions I should draw from the inclusion of the documents in Schedule B.

Algarawi documents and refusals

[29] Seven of the disputed documents relate to the Algarawi action. As noted above, the defendants did not provide the documents to the associate justice for review. In the materials before me, the documents were described as follows:

a. Report, Recommendations and Follow-Up – Privileged and Confidential – Obstetrics and Labour and Delivery Local Quality of Care Committee for St. Michael's Hospital, Meeting Date December 13, 2016;

b. Agenda – Incident Analysis Team Meeting December 13, 2016;

c. Notations on Agenda – Incident Analysis Team Meeting December 13, 2016;

d. Assignment of Cases for Review – Incident Analysis Team Meeting December 13, 2016;

e. Factual Summary of Cases for Review – Incident Analysis Team Meeting December 13, 2016;

f. Email from Dr. Meffe to IAT Members with Case Assignments for Incident Analysis Team Meeting on December 13, 2016 – dated December 8, 2016; and

g. PowerPoint Presentation prepared by Dr. Brown for December 9, 2016 Perinatal/Neonatal Morbidity and Mortality Rounds.

[30] In my view, these documents, in whole or in part, are relevant to the matters at issue in the proceeding. [18]

[31] The pleadings in the Algarawi action are extremely detailed. For example, the Algarawi plaintiffs allege 56 specific negligent acts of Dr. Brown, Dr. Berger, Dr. Jain, Dr. Paz, and Dr. Meffe that caused harm to Nora. They allege a further 23 allegations against Dr. Martoglio. The Algarawi plaintiffs make similarly detailed allegations of negligence about the defendant nurses, the defendant hospital, and the other hospital staff.

[32] Considered against these pleadings, I find that the disputed documents are prima facie relevant. The disputed documents:

a. were prepared by the one or more of the defendant doctors;

b. concern the care and treatment provided to Nora and her mother;

c. contain facts that are drawn from the medical files of Nora and her mother; and

d. were prepared for the purpose of discussions about the care and treatment of Nora and her mother to see if any quality improvement lessons could be learned.

[33] For example, the document listed in paragraph [29]g is a PowerPoint presentation prepared by the defendant Dr. Brown for use in her presentation about Ms. Taha’s case at the Morbidity and Mortality Rounds in December 2016 (only seven months after she was involved in the care and treatment at issue). In her affidavit, Dr. Brown stated the following:

6. The goal of [Morbidity and Mortality] rounds was to discuss cases of adverse outcomes and to consider whether any lessons can be learned to improve the quality of patient care in future cases. As residents and fellows attend these rounds, they are also intended to be educational.

7. Only members of the Obstetrics and Gynecology Department were invited to the rounds, including: staff physicians, fellows, residents, nurses, and some administrative staff. To the best of my recollection, notice of the rounds was provided by email invitation.

8. I was asked to present Ms. Taha's case during an M&M round held in December 2016. I do not recall who asked me to present the case.

9. I prepared a Power Point that set out the facts of Ms. Taha's case, which I used to present at the M&M round. I relied only on Ms. Taha's medical chart to prepare the Power Point and my presentation. Neither the Power Point nor my presentation contained any findings, opinions, or recommendations for system changes. It was purely factual.

[34] In my view, the PowerPoint is relevant to the litigation. [19] A defendant created this PowerPoint presentation shortly after the events at issue. The document includes facts that are taken from the plaintiffs’ medical records. The facts contained in the PowerPoint were relevant when they were in the medical chart, and they remain relevant when they are included in the PowerPoint. A defendant prepared this PowerPoint to inform a discussion of what if anything could be learned from the events at issue in this litigation. The PowerPoint documents things that Dr. Brown said to other doctors about the care she had provided to Ms. Taha. That is the type of information found relevant in Sutherland. [20] I find that the PowerPoint is relevant to this action.

[35] The documents in paragraphs [29]a to [29]f all relate to a meeting of the Incident Analysis Team. The defendant Dr. Meffe prepared the key documents before and after the meeting. In her affidavit, Dr. Meffe stated as follows:

28. The Obstetrics Incident Analysis Team met on December 13, 2016 to discuss a number of cases, including Ms. Taha's case. In advance of the meeting, the Committee members received: an email inviting them to the meeting containing an agenda of cases to be discussed, and a summary of the facts of each case to be discussed, as taken from the applicable patients' medical charts.

29. In advance of the meeting, I set out the facts that were contained in Ms. Taha's medical chart relating to the care and treatment provided on August 15 and 16, 2016 in a document. I did not consider or include in that document any facts outside of the medical chart. I did not interview any of the participants involved in Ms. Taha's case or the patient.

30. All of the diagnostic and treatment records that I relied on for this document, and that were considered by the Committee as part of the Incident Analysis Team meeting, were contained in Ms. Taha's patient chart at the Hospital. …

31. We reviewed Ms. Taha's medical chart and my document. We had a discussion about the care and treatment provided to determine whether there were any systemic issues that might merit further review or a system change.

32. I recorded our findings from the review on our template form described above (the "Report"). The facts in the Report are ones that are contained in Ms. Taha's medical chart and identified in the document I prepared. The Committee did not make any recommendations for systemic changes at the Hospital arising from the review of Ms. Taha's case. As such, no further steps were taken in regard to the review of this case.

[36] I find that the documents created by Dr. Meffe are relevant for the same reasons as set out above with respect to the PowerPoint.

[37] In addition, producing the seven documents listed above in two complex medical malpractice cases does not create any issues of proportionality that would justify not producing the documents merely because the facts they contain may also appear in the medical records.

[38] Even if the seven documents contain opinion evidence, that is not fatal to their relevance. First, the documents were not provided to the associate justice for inspection, so it is difficult to know if they contain opinions or not. More importantly, just because the documents contain opinions that might not be admissible at trial does not mean that the documents should not be produced. All admissible evidence must be relevant, but not all relevant evidence will be admissible.

[39] For the same reasons, I find that questions asked on discovery about these documents or the meetings at which they were discussed are relevant. Conversations about the incident in question are relevant. [21] They may be privileged, but that is a different issue.

[40] With one exception, I find that the questions refused by Dr. Meffe and Dr. Brown on discovery should not have been refused on the basis of relevance. I agree that Dr. Meffe’s refusal to answer question 129 was appropriate. The size of the auditorium hosting the Morbidity and Mortality rounds is irrelevant to the matters at issue in the proceeding.

Porter documents and refusals

[41] Five of the disputed documents relate to the Porter action. The defendants did not provide the documents to the associate justice for review. In the materials before me, the documents were described as follows:

a. Memo to CEO, Senior Leadership Team, Chief of Staff and Chair of Medical Advisory Committee, VP Medical Affairs, Medical Director Quality & Patient Safety and Chair of CQCC, Director Clinical Practice & Quality, Chief Patient Experience Officer, Director, Patient Experience, Enterprise Risk Consultant, Manager, Quality & Patient Safety, Subject: Notice of Potential Critical Incident, Date: January 16, 2017;

b. Critical Care Quality Review Event Timeline & Critical Incident Report - Privileged & Confidential - Date of review February 15, 2017;

c. E-mail exchange between L. Hogeboom, T. Geerlinks, N. Mohammed, T. Wallington, J. Willcox, C. Menage, and S. Fung regarding Quality of Care Review Summary and Recommendations, dated February 17-18, 2017;

d. Corporation Quality of Care Committee Report, Critical / Serious / Moderate Incidents Q4 2016-17; and

e. Incident Report.

[42] In my view, these documents, in whole or in part, are also relevant. [22]

[43] The pleadings in the Porter action are extremely detailed. For example, the Porter plaintiffs allege 66 specific negligent acts of Dr. Elsugy, Dr. Virich, and Dr. El Hajj that caused damage to Hezekiah. They allege a further 35 specific negligent acts of Dr. Sutandar. The Porter plaintiffs make similarly detailed allegations of negligence about the defendant nurses, the defendant hospital, and the other hospital staff.

[44] In my view, all of these documents are relevant to the matters in dispute. Using the same subparagraph letters as in paragraph [41]:

a. This is the memo that was sent pursuant to the hospital’s incident reporting policy. It initiated the quality of care review process and is the first document prepared by the hospital in response to the care issues at the very heart of this litigation.

b. This is the report for the quality of care review. It contains a factual description of the events at the heart of this litigation and an event timeline. It contains facts from the medical records of the plaintiffs.

c. This is an email containing a report of the quality of care review in the plaintiffs’ case.

d. This is a report used to track certain data and the status of any recommendations made at the quality review of the care provided to the plaintiffs.

e. This is the incident report into the birth of the plaintiff Hezekiah. However, this report cannot be located.

[45] These documents were prepared either by an individual defendant or an employee of the defendant hospital. They all concern the care and treatment of the plaintiffs and discuss the incident at the very heart of this litigation. I find that these documents are relevant for the same reasons set out above with respect to the Algarawi documents.

[46] Similarly, I find that the questions refused by Dr. Sutandar and Ms. Hutchinson should not have been refused on the basis of relevance.

Conclusion

[47] For the reasons set out above, I find that the associate justice erred in concluding that the disputed documents and refused questions were not relevant. The defendants would be, therefore, required to produce the disputed documents and answer the questions unless they are able to demonstrate that the documents and answers are protected by privileged.

Issue two: QCIPA did not eliminate the applicability of the Wigmore criteria to establish a case-by-case privilege

[48] The parties agree that the defendants cannot bring themselves within the protection of the Quality of Care Information Protection Act, 2016 (“QCIPA”), which provides a statutory privilege over certain quality assurance communications in specific circumstances. Therefore, if QCIPA altered the common law and eliminated the ability of the defendants to demonstrate a common law evidentiary privilege, the defendants must produce the challenged documents and answer the refused questions.

[49] I find that the associate judge correctly concluded that QCIPA did not eliminate the common law Wigmore privilege.

[50] Associate Justice Abrams correctly determined that Ontario courts have repeatedly recognized the importance of protecting quality assurance communications at common law. [23] For example, in Steep, Egan J. carefully applied the Wigmore factors to two memoranda described as “quality assurance reports” or “peer review evaluations.” Justice Egan concluded that the case-by-case privilege applied:

It would be understandable for any individual whose decisions were the subject of a critical analysis by his or her peers, in the absence of confidentiality, to be self-protective, guarded and concerned about the consequences of any admissions despite his or her professional obligations and responsibilities. If participants in such reviews were not as frank as they might be in a confidential setting, the person conducting the review is hampered from gathering the information required to make an evaluation. The result could well be a report that does not assist in improving quality of care or that only does so to a limited extent.

In my view, the free exchange of information, promoted by confidentiality, goes to the very core of successful quality assurance reviews leading to the improvement of quality care. It is in the public interest that hospital care and services are effectively assessed and improved to ensure a continuously improving quality of health care. [24]

[51] The Legislature is presumed not to alter the common law unless the language of the statute demonstrates clearly and unambiguously that it intended to do so. [25] This is particularly true with respect to privileges, such as solicitor-client communication privilege and litigation privilege. [26] Privileges cannot be eroded by inference. Privileges can only be altered or abrogated through a clear, explicit, and unequivocal statutory provision to that effect. [27]

[52] For example, Parliament wished to ensure that lawyers’ accounting records would be made available for tax auditing and enforcement purposes despite the fact that they were arguably protected by solicitor-client privilege. To achieve this result, Parliament amended s. 232(1) of the Income Tax Act to explicitly exclude “an accounting record of a lawyer” from its statutory definition of solicitor-client privilege. The Supreme Court of Canada held that this was the type of clear legislation required to abrogate solicitor-client privilege over a particular type of document. [28]

[53] I agree with the associate judge that there are no provisions in QCIPA that demonstrate a clear and unambiguous intention to abrogate the common law privilege that would attach if the defendants can otherwise bring themselves within the Wigmore criteria. The plaintiffs have not demonstrated that the associate justice committed an error.

[54] First, the plaintiffs submit that because the Legislature carefully defined “quality of care information” and prevented such information from being admissible in court, that is evidence of an intention to abrogate the common law privilege. I disagree. That definition is only evidence that the Legislature intended to provide extremely robust, categorical protections for information that met the narrow statutory definition. In my view, that provision demonstrates no intention to eliminate common law privileges for information that falls outside of its scope.

[55] Second, the plaintiffs place much emphasis on the preamble to QCIPA as demonstrating the Legislature’s intent to abrogate access to common law privileges. The preamble reads as follows:

The people of Ontario and their Government:

Believe in patient-centred health care;

Remain committed to improving the quality of health care provided by health facilities and maintaining the safety of patients;

Believe that quality health care and patient safety is best achieved in a manner that supports openness and transparency to patients and their authorized representatives regarding patient health care;

Recognize that health care providers and other staff in health facilities sometimes need to hold confidential discussions to identify and analyze errors affecting patients, systemic problems and opportunities for quality improvement in patient health care;

Believe that protections are needed to encourage and enable health care providers and other staff of health facilities to share all available information, provide honest assessment and opinions and participate in discussions to improve patient health care without fear of retaliation;

Believe that sharing information about critical incidents and quality improvement helps to improve the quality of health care for patients;

Are committed to ensuring that measures to facilitate the sharing of information for quality improvement purposes do not interfere with the right of patients and their authorized representatives to access information about their health care or with the obligations of health facilities to disclose such information to patients and their authorized representatives; and

Affirm that the inclusion of patients and their authorized representatives in the process of reviewing a critical incident helps to improve patient care, and therefore quality of care information protection must be implemented in a manner that supports such inclusion.

[56] Even ascribing full weight to this preamble, it alone does nothing to abrogate a common law privilege. Even if I keep this preamble in mind when I review the remainder of QCIPA 2016, I do not see any clear and explicit intention to abrogate common law privilege.

[57] Third, the plaintiffs placed significant emphasis on excerpts from Hansard. I find the Hansard debates to be of limited assistance. I am required to determine the intention of the Legislature by considering the text, context, and purpose of QCIPA. [29] Hansard debates can be of limited assistance to interpret legislation, but the task remains to assess what the Legislature did, not what Ministers, MPPs, and staff said about what they intended to do. In this case, I do not find that the Hansard excerpts provide meaningful assistance to me in the exercise of interpreting the statute.

[58] Fourth, I do not agree with the plaintiffs that the associate justice erred in her interpretation of cases from other provinces. Because those cases are of persuasive value only, and because they considered different statutes, with different provisions, those cases would be of limited value. In any event, I see no error in the associate justice’s conclusion that those cases did not support the plaintiffs’ submissions.

[59] Fifth, there is nothing in QCIPA to suggest that hospitals and medical professionals can only conduct quality of care reviews in accordance with its terms. QCIPA provides robust, categorical protection for activities that fall within the process created by QCIPA. All other quality of care initiatives will remain confidential if, and only if, they meet the Wigmore test.

[60] Sixth, the parties disagree profoundly on whether abolishing common law quality assurance privilege outside the scope of QCIPA is good health care policy. The plaintiffs submit that the healthcare system will be enhanced by greater transparency and by eliminating common law privilege over quality of care information if it does not fall within the statutory scheme. The defendants disagree. For example, Ms. Trafford, the Vice-President of Quality Performance, and the Chief Information Officer explained the rationale for having different types of quality of care reviews as follows:

The rationale behind having different types quality of care reviews is, broadly speaking, the desire to encourage and provide as many opportunities as possible, in formal and less formal settings, for care providers, risk managers, and others at the hospital to be able to come together and discuss difficult cases in a confidential, blame-free and consequence- free environment.

Having been an executive in healthcare since 2005, I know first hand the impact that such discussions can have on improving the quality of care that a hospital is able to offer and the overall impact this has on the experiences of our patients and families. When barriers, such as fear of reprisal or being personally blamed, are removed, the participants at quality of care reviews are much more inclined to speak up, to challenge their peers, to acknowledge potential shortcomings, and to focus on the possible learnings from any particular case. The open dialogue that ensues in the review process is critical to identifying recommendations that are capable of implementation and will improve the quality of care provided in future cases.

As a hospital, we need to encourage less formal review processes to meet our commitment to improving care wherever we can, and also to ensure that we can be accountable to patients and disclose things to patients, such as systemic steps taken to avoid or reduce the risk of further similar incidents, even in cases of non-critical incidents. If the quality assurance privilege at common law were not available to protect these less formal review processes, I believe hospitals would revert to doing more reviews under QCIPA and that this would ultimately interfere with hospitals' objectives of increasing transparency and accountability to patients, while at the same time fostering a culture that is focused on continuous learning, evaluating past cases, identifying opportunities for improvement, and thereby improving the quality of care we offer to patients.

[61] My role is not to rewrite the statute based on policy concerns. It is for the Legislature to make its policy choice and to implement that choice in a statute and regulations. My role is limited to assessing the effect of QCIPA on the common law of privilege. In my view, it did not abrogate the common law of privilege.

Conclusion

[62] The associate justice correctly determined that QCIPA did not eliminate the ability of the defendants to establish a common law evidentiary privilege. The next step is to consider whether or not the defendants have met the four-part Wigmore test that was first recognized in Slavutych v. Baker. [30]

Issue three: the defendants have made out a common law evidentiary privilege

[63] The associate justice correctly articulated the test to be applied. The four conditions necessary to establish common law privilege were first articulated by Wigmore and subsequently adopted by the Supreme Court of Canada are:

a. the communications must originate in a confidence that they will not be disclosed.

b. this 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.

d. 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. [31]

[64] Neither Associate Justice Abrams nor I had the benefit of reviewing the documents the defendants asserted were privileged. A judge need only review all of the documents if the judge concludes that she or he is unable to decide on the claimed privileges solely on the basis of the parties’ representations, including any affidavit put forward to explain the basis and context for the privilege claim in relation to specific documents. [32]

[65] However, this case only involved 12 documents. Reviewing the documents would not have delayed the proceedings or have prejudiced the parties. In my view, a better practice, particularly in cases where parties are attempting to demonstrate that the documents are protected by Wigmore privilege, would be for the documents to be made available under seal to the initial judicial officer hearing the motion. Reviewing the documents themselves may make it easier for the judicial officer to assess whether or not they meet the test for privilege.

The communications originated in confidence

[66] The associate judge found that the communications all originated in a confidence that they would not be disclosed. I agree. The disputed documents are labelled confidential, the uncontradicted evidence of Dr. Meffe, Dr. Sutandar, Dr. Elsugy, and Ms. Geerlinks explains that they undertook the quality of care reviews with a clear expectation of confidentiality.

[67] I do not accept the plaintiffs’ submission that because the quality assurance documents contain facts about their care, that the communications lose their confidentiality. The facts in the medical records remain available to the plaintiffs, but when those facts are assembled into documents used in a quality assurance program, they become confidential within those documents and for that purpose.

[68] Similarly, I do not accept the plaintiffs’ submission that because Dr. Sutandar spoke to the Porters after the quality assurance meeting that means the medical professionals did not have an expectation of confidentiality. The associate judge did not commit a palpable and overriding error in finding that Dr. Sutandar provided only a “high level overview, i.e. no particulars and no specifics.” That conclusion was available to the associate judge on the evidence. I agree that Dr. Sutandar did not forfeit the right to claim Wigmore privilege or waive any privilege by sharing that limited information. I agree that Dr. Sutandar’s general and circumscribed comments did not derogate from the confidentiality of the case review process.

[69] The evidence is overwhelming that the communications originated in confidence and the associate judge was correct to reach that conclusion.

[70] For completeness, the parties agree that if the incidents involving the plaintiffs were “critical incidents” within the meaning of Regulation 965 of the Public Hospitals Act, R.S.O. 1990, c. P.40, the facts, consequences, and remedial steps would have to be disclosed to the plaintiffs. If these were critical incidents within the meaning of the regulation, the required disclosure might well undermine the claim to Wigmore privilege.

[71] The defendants, however, determined that neither case amounted to a “critical incident,” despite the serious outcomes for the plaintiffs, because the outcomes arose primarily from the patients’ underlying medical conditions or from known risks inherent in the treatment provided to them. I agree with the associate justice that absent any expert evidence, there is no basis to find that critical incident disclosure was required in these cases or that the communications did not originate in confidence.

Confidentiality is essential to the full and satisfactory maintenance of the relationship

[72] The associate judge found that confidentiality was essential to the quality assurance program. She held:

As the court concluded in Steep …at paras. 24-26: While quality assurance reviews will take place whether or not they are confidential, “the free exchange of information, promoted by confidentiality, goes to the very core of successful quality assurance reviews leading to the improvement of quality care”. As Drs. Sutandar and El Sugy (Porter) deposed: “[K]nowing that discussions at case reviews were not ‘off the record’ would have created a powerful disincentive…to participate fully and frankly” (Sutandar affidavit at paras. 14 and 15); “confidentiality was important…to the case review process generally…because it gave…participants the confidence to contribute candidly to the discussion without fear…” (El Sugy affidavit at para. 10).

And as Ann Trafford, Vice President, Quality, Performance and Chief Information Officer at Unity Health Toronto (Taha) commented, the quality of care reviews, including opinions expressed and discussions held, “are all kept highly confidential to help foster the open, honest and consequence-free discussion that is so integral to quality improvement” (Trafford affidavit, at para. 25). Dr. Brown’s perspective as a resident participating in the Morbidity and Mortality rounds was that she would not have felt comfortable discussing cases that involved care provided by [her] and [her] peers if [she] believed the content of those discussions might be disclosed at some point beyond the confines of the meeting”. Confidentiality permitted (and permits) participants a “safe space” (affidavit of Dr. Brown, at paras. 12-13).

[73] I do not accept the plaintiffs’ submission that confidentiality is not essential for this relationship. The plaintiffs submit that because QCIPA reviews have statutory confidentiality protections, the corollary is that confidentiality is not essential to non-QCIPA processes. I disagree. As noted above, there are risks to using a non-QCIPA process. The hospital and its physicians must weigh those risks against the benefits described above by Ms. Trafford. That does not mean that confidentiality is not essential to this relationship.

[74] I agree with the associate justice’s conclusion and have no doubt that confidentiality is the cornerstone of the quality assurance process.

Relationship should be sedulously fostered

[75] The associate judge did not err in concluding that society desires to improve the quality of health care, that quality of care reviews contribute significantly to that goal, and that confidentiality is essential for quality of care reviews to achieve that purpose. The evidence from Dr. Sutandar, Dr. Meffe, Dr. Brown, Ms. Trafford, and Ms. Geerlinks on these points was unchallenged. The associate judge did not err in concluding that the relationships among medical professionals in non-QCIPA quality assurance or improvement processes should be sedulously fostered.

[76] I do not accept the plaintiffs’ submissions that these relationships should not be sedulously fostered because the defendant doctors owe fiduciary duties to their patients. The fiduciary duty that a doctor owes a patient does not normally interfere with the doctor’s ability to make out a privilege. For example, if a doctor creates a document to give to her lawyer for the purpose of obtaining legal advice, her fiduciary duty to her client will not prevent her from establishing a claim of solicitor-client communication privilege.

[77] Here, the relationship among doctors and hospital staff seeking to improve the quality of health care is a relationship that society wishes to foster. The unchallenged evidence of the hospital defendants is that non-QCIPA quality improvement activities are an essential component of the quality improvement processes within hospitals across the province. These processes help hospitals to achieve the object of providing quality care to patients. Those relationships should be fostered.

The injury to the relationship from disclosure outweighs the benefits of disclosure

[78] The associate judge did not err in concluding the injury that would inure to the relationship by the disclosure of the communications is greater than the benefit thereby gained for the correct disposal of litigation. She correctly applied the framework developed in Steep.

[79] The associate judge determined that the benefit that would be gained if the documents were disclosed was very modest because:

a. the medical records have already been produced, so the plaintiffs have access to the facts that are reproduced in the quality assurance documents;

b. the individual defendants have been examined for discovery; and

c. the quality assurance process did not result in any policy or systemic changes.

[80] The plaintiffs submit that this factor favours disclosure because many of the documents contain facts from the medical records. They submit that disclosure of such documents would not harm the relationships at issue.

[81] I disagree with the plaintiffs’ submissions. Even accepting that the facts contained in the quality assurance documents are relevant, they are available elsewhere. The associate judge explained well why the information sought is not very important to the plaintiffs’ cases.

[82] On the other side of the scale, the associate judge correctly determined that substantial injury would result if the quality assurance reviews were disclosed because it would restrict the flow of information among the medical staff and diminish the effectiveness of the quality assurance process that the associate judge found to be necessary to improve patient care. The associate judge committed no error in reaching this conclusion.

Conclusion and costs

[83] For the reasons set out above, I dismiss the appeal. Although the documents and refused questions are relevant to matters at issue in the proceeding, the associate judge correctly held that they were protected by common law privilege.

[84] If the parties are not able to resolve costs of this action, each set of defendants may email their costs submissions of no more than three double-spaced pages to my judicial assistant on or before April 24, 2023. The plaintiffs may deliver their responding submission of no more than five double-spaced pages on or before May 1, 2023. No reply submissions are to be delivered without leave.

Robert Centa J.

Date: April 17, 2023

Footnotes

[1] Algarawi v. Berger, 2022 ONSC 396.

[2] Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Zeitoun v. Economical Insurance Group, 2009 ONCA 415, 96 O.R. (3d) 639, at para. 1.

[3] Housen, at para. 8.

[4] Housen at para. 5.

[5] Housen at para. 36.

[6] MacDonald v. Chicago Title Insurance Co. of Canada, 2015 ONCA 842, 127 O.R. (3d) 663, at paras. 1-41, leave to appeal refused [2016] S.C.C.A. No. 39; Creston Moly Corp. v. Sattva Capital Corp., 2014 SCC 53, [2014] 2 S.C.R. 633; Housen at para. 36.

[7] 684761 B.C. Ltd. v. Canada, 2015 FCA 123, at para. 3.

[8] R. v. Mohan, 1994 SCC 80, [1994] 2 S.C.R. 9 at para. 22.

[9] Bee Vectoring Technology Inc. v. Chitiz Pathak LLP, 2019 ONSC 1714, at para. 74; Fulop v. Corrigan, 2020 ONSC 1648 at para. 74; Leadbeater v. Ontario (2004), 70 O.R. (3d) 224 (S.C.J.), at para. 29.

[10] R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 36.

[11] John Sopinka, Sidney N. Lederman & Alan W. Bryant, The Law of Evidence in Canada, 6th ed. (Lederman, Fuerst, Stewart) (LexisNexis, 2022), at para. 2.54; R. v. J. (J.-L.), 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 47; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 108 (S.C.C.); R. v. Evans, 2019 ONCA 715, 147 O.R. (3d) 577 at paras. 135, 183.

[12] R. v. Watson (1996), 30 O.R. (3d) 161 (C.A.), at para. 33.

[13] McGee v. London Life Insurance Co., 2010 ONSC 1408, 86 C.P.C. (6th) 381; Rath v. Tanzanian Gold Corp, 2022 ONSC 5184, 164 O.R. (3d) 118, at p. 30 to 36.

[14] Rule 30.02.

[15] Hopps-King Estate v. Miller (1998), 29 C.P.C. (4th) 23 (Ont. Gen. Div).

[16] Rule 31.06.

[17] Perez (Litigation Guardian of) v. Salvation Army in Canada (1998), 42 O.R. (3d) 229 (C.A.).

[18] McGee v. London Life Insurance Co., 2010 ONSC 1408, 86 C.P.C. (6th) 381; Rath v. Tanzanian Gold Corp, 2022 ONSC 5184, 164 O.R. (3d) 118, at p. 30 to 36.

[19] Dr. Brown could not locate a copy of this document and listed it in Schedule C to her affidavit of documents.

[20] Sutherland v. Sault Area Hospital, 2017 ONSC 736, at paras. 40-41.

[21] Sutherland v. Sault Area Hospital, 2017 ONSC 736, at paras. 29, 40-41.

[22] McGee v. London Life Insurance Co., 2010 ONSC 1408, 86 C.P.C. (6th) 381; Rath v. Tanzanian Gold Corp, 2022 ONSC 5184, 164 O.R. (3d) 118, at p. 30 to 36.

[23] Steep (Litigation Guardian of) v. Scott (2002), 62 O.R. (3d) 173 (SCJ) at para. 8 (SCJ); Redman v. Hospital for Sick Children, 2010 ONSC 3769; Leone v. Hospital for Sick Children (21 July 2005), Court file number 70287/04.

[24] Steep, at paras. 25-26.

[25] Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19, [2016] 1 S.C.R. 306 at paras. 29 to 30.

[26] Blood Tribe Department of Health v. Canada (Privacy Commissioner), 2008 SCC 44, [2008] 2 S.C.R. 574 at para. 11; Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, [2016] 2 S.C.R. 521 at para. 5; Canada (National Revenue) v. Thompson, 2016 SCC 21, [2016] 1 S.C.R. 381 at para. 26.

[27] Lizotte, at para. 5.

[28] Canada (National Revenue) v. Thompson, 2016 SCC 21, [2016] 1 S.C.R. 381.

[29] Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at paras. 21 to 23.

[30] Slavutych v. Baker, [1976] 1 S.C.R. 254.

[31] Slavutych v. Baker, [1976] 1 S.C.R. 254.

[32] A.M. v. Ryan, [1997] 1 S.C.R. 157, at para. 39; Girouard v. Canadian Judicial Council, 2019 FCA 252, at paras. 21 to 24; GCT Canada Limited Partnership v. Vancouver Fraser Port Authority, 2021 FC 624, at para. 15.