2023 ONSC 7503

COURT FILE NO.: CV-19-00080949-0000

DATE: November 23, 2023

SUPERIOR COURT OF JUSTICE - ONTARIO RE: J.E. and S.E.

AND:

Metrolinx and Boca Construction LTD.

BEFORE: Associate Justice M. Fortier

COUNSEL: Christopher A. Obagi, for the Plaintiffs, Respondents on the motion and Moving Parties on the cross-motion

Jaclyn Kram, for the Defendant, Metrolinx, Moving Party on the motion and Responding Party on the cross-motion.

HEARD: June 20 & June 28, 2023

ENDORSEMENT

Introduction

[1] This is a motion by the Defendant, Metrolinx, for an Order compelling the Plaintiffs to produce complete, up-to-date, and unredacted copies of the Ottawa Hospital records of one of the Plaintiffs, J.E.

[2] The Plaintiffs bring a cross-motion for a limited sealing order, sealing exhibits from the public record and a limited publication order permitting the court to initialize the names of the parties in my written decision arising from the motion and cross-motion.

[3] The Plaintiffs oppose the motion and Metrolinx opposes the cross-motion.

Background

[4] This action arises from a head injury sustained by J.E. in November of 2017, while he was a second-year engineering student at the University of Waterloo. J.E. alleges that he was struck in the head by a Metrolinx bus stop sign that was protruding outwardly into the sidewalk near a Metrolinx bus stop on the University’s campus. J.E.’s mother, S.E., is also a Plaintiff in the action and is claiming general damages pursuant to the Family Law Act,

R.S.O. 1990, c. F.3.

[5] The trial in this action is scheduled to proceed in March 2024.

[6] On January 11, 2023, J.E. was admitted to the Ottawa Hospital Psychiatric ward under

s. 17 of the Mental Health Act, R.S.O. 1990, c. M.7, for psychosis. This was the first time that he suffered from such an episode and, according to J.E., he has not suffered a psychotic episode since that time. J.E. was discharged and returned home on January 31, 2023, where he lives with his mother and father.

[7] During J.E.’s admission in hospital in January 2023, he suffered from suicidal and homicidal ideation with auditory hallucinations. J.E. was delusional and made false accusations against third parties based on those delusions. These delusional accusations were documented in the Hospital Psychiatric Ward Chart.

[8] On March 10, 2023, the Plaintiffs produced copies of the clinical notes and records from the Ottawa Hospital which primarily involve the psychiatric admission as well as updated family doctor records. Of the records produced, 43 sentences had been redacted. The redactions in the family doctor records were limited to the copies of documents from the Hospital Psychiatric Ward Chart that found themselves in the family doctor records.

[9] Metrolinx seeks the production of the unredacted copies of the up-to-date and complete Ottawa Hospital records.

Motion by Metrolinx

[10] The issue on the motion is whether the Plaintiffs are permitted to redact portions of the updated Ottawa Hospital records of the Plaintiff, J.E., as the records relate to his recent psychotic episode in January 2023 or whether the court should order the Plaintiffs to produce unredacted copies.

Position of the Parties

[11] Metrolinx argues that the impugned Ottawa Hospital records of the Plaintiff, J.E., are highly relevant and material to the issues in dispute, particularly damages. The redacted information is material to properly understanding the nature, extent, and severity of J.E.’s psychotic episode, including its trigger and consequences. Metrolinx contends that it would be unfair for it to be required to proceed to trial without the benefit of reviewing the unredacted copies of the records so that it may properly respond and defend the Plaintiffs’ claims with respect to damages.

[12] Moreover, Metrolinx maintains that there is no general right to redact otherwise relevant materials. Rather, relevant documents must be produced in their entirety without redactions based on a unilateral opinion with respect to relevancy.

[13] The Plaintiffs argue that the redactions to the Hospital Psychiatric Ward Chart were made because they contain serious false allegations of criminal conduct against a third party arising from delusional symptoms from the psychotic episode and are not relevant. In addition, some of the delusional false allegations involve a third party who is a minor and the content of the false allegations are not relevant and highly prejudicial to the third parties. Finally, the Plaintiffs contend that it is in the interest of justice to avoid disseminating allegations of serious criminality against third parties which are known to be false.

Law and Analysis

[14] Generally, relevant documents must be produced in their entirety without redactions based on a unilateral opinion with respect to relevancy. However, redactions are permissible when the redacted portion is clearly not relevant and there is a good reason why the information should not be disclosed. It is the party requesting the redaction that bears the onus of establishing that the redaction is appropriate. If the parties cannot agree, the court will determine whether the redaction is appropriate: see King v. Intact et al, 2017 ONSC 1647, at para. 12; Payne v. City of Windsor, 2011 ONSC 2763, leave to appeal refused, 2011 ONSC 3185.

[15] This test was set out by Strathy J. (as he was then) in McGee v. London Life Insurance Company Limited, 2010 ONSC 1408, at paras. 9-10:

9. The whole of a relevant document must be produced except to the extent it contains information that would cause significant harm to the producing party or would infringe public interests deserving of protection. I respectfully adopt as applicable in Ontario the statement of Lowry J., as he then was, in North American Trust Co. v. Mercer International Inc. (1999), 1999 CanLII 4550 (BC SC), 36 C.P.C. (4th) 395, [1999] B.C.J. No. 2107 (S.C.) at para. 13:

Under the rules of this court, a litigant cannot avoid producing a document in its entirety simply because some parts of it may not be relevant. The whole of a document is producible if a part of it relates to a matter in question. But where what is clearly not relevant is by its nature such that there is good reason why it should not be disclosed, a litigant may be excused from having to make a disclosure that will in no way serve to resolve the issues. In controlling its process, the court will not permit one party to take unfair advantage or to create undue embarrassment by requiring another to disclose part of a document that could cause considerable harm but serve no legitimate purpose in resolving the issues. [emphasis added]

10. Lowry J. referred to a number of authorities, some of which were referred to by London Life in the motion before me, and observed, at para. 11:

In the cases to which I have been referred, litigants have been relieved from disclosing the whole of a document related to a matter in question where, but only where, the part withheld has been clearly not relevant to the issues and, because of its nature, there has been good reason why that part should not be disclosed. With reference to the decisions of this court specifically, good reason is apparent in the private nature of the affairs of a company recorded in the minutes of its directors' meetings, or the personal sensitivity of a person's medical records, diary notations, or familial communications, and much the same can be said where expurgated disclosure of a document has been upheld in the cases cited from other jurisdictions. Statements to the effect that only the relevant parts of a document need be produced, such as in Jervis Court Development [Jervis Court Development Ltd. v. Ricci, [1992] B.C.J. No. 2932] at para. 24 and [K.L.V. v. D.G.R.], [1993] B.C.J. No. 1662] at para.

10, must be read in the context of what was decided. [emphasis added].

[16] In addition to the “good reasons” outlined in McGee for why the information in a document should not be disclosed, the Court in Albrecht v. Northwest Protection Services Ltd., 2005 Carswell Ont 2142 (S.C.), at para. 13, held that where the interests of innocent third parties could be damaged if revealed in the proceedings, redactions of materials may be permissible.

[17] Metrolinx argues that based on counsel’s description of the redacted content, which describes “serious false allegations of criminal conduct against a third party arising from delusional symptoms from a psychotic episode,” these allegations are part and parcel with the J.E.’s psychotic episode and relevant. According to Metrolinx, producing the detailed content of these allegations, notwithstanding its accuracy, is necessary as the content precipitated and/or stems from J.E.’s psychotic episode. The details are required to assess the nature, extent, and severity of J.E.’s psychotic episode and how it may relate to his incident-related head injuries as defined by the Statement of Claim.

[18] For the following reasons, I find that the Plaintiffs have met their onus of establishing that the redactions are permissible.

i- Is the Redacted Information Relevant?

[19] There is no doubt that J.E.’s psychotic episode is relevant and there may be a connection to the psychotic episode and his injury in 2017. The information produced from the Hospital Psychiatric Ward Chart regarding the psychotic episode include the symptoms, observations by medical staff, analysis, medical plan, tests, diagnosis, treatments, and discharge parameters. The information disclosed outlines the nature and severity of J.E.’s hospital admission.

[20] The issue is whether the contents of J.E.’s delusional beliefs during the psychotic episode are relevant in determining the issues of liability or damages.

[21] I have had an opportunity to review the redacted sentences. In my opinion, the redacted sentences concern only the contents of the delusions within the psychotic episode. It is clear from the evidence before me that the contents of the delusions are untrue and contain false accusations of serious crimes against a third party and labels another third party, who is a minor, as the victim of the crimes.

[22] In my view, the contents of J.E.’s falsely held beliefs during his psychotic episode are irrelevant to determining the issues in this litigation.

[23] There are numerous references throughout J.E.’s Hospital Psychiatric Ward Chart that have been disclosed that clearly label the allegations made by J.E. as delusional. The evidence is clear that J.E. lost touch with reality and was suicidal and homicidal with auditory hallucinations. There is no doubt from the material disclosed that the medical episode was serious.

[24] In my view, determining the severity of the medical episode does not require the detailed disclosure of the contents of psychotic delusions. Moreover, no reference is made in the Hospital Psychiatric Ward Chart that would suggest the contents of the false allegations were important in diagnosing, treating, or discharging J.E. for his psychotic episode.

ii- Is There Good Reason Why the Information Should Not be Disclosed?

The Interests of Third Parties

[25] As mentioned previously, J.E.’s delusions contain false allegations of criminal conduct of a third party and falsely label another third party, a minor, as a victim of the criminal conduct. The accusations made refer to reprehensible and publicly stigmatized crimes. I agree with the Plaintiffs that the third parties are referred to with enough specificity in the redacted materials that someone reading the allegations could reasonably identify them.

[26] In this case, the interests of innocent third parties could be damaged if revealed in these proceedings and the redactions ought to be permissible: see Albrecht, at para. 13.

Personal Sensitivity of Medical Records

[27] J.E. was delusional and out of touch with reality during his psychotic episode. Having been released from the hospital and according to the evidence before me, able to identify these thoughts as symptoms of his delusions, he is seeking privacy with respect to the highly embarrassing false accusations that he made while delusional.

[28] The courts have held that good reason may be apparent in the personal sensitivity of a person’s medical records and litigants may be relieved from disclosing the whole of a document in these circumstances: see McGee, at para. 10. In my view, the statements made in the context of a psychotic episode and involuntary admission to a psychiatric facility under the Mental Health Act at a time when J.E. was vulnerable certainly qualify as “good reason” why the information in the Hospital Psychiatric Ward Chart should not be disclosed.

[29] For the foregoing reasons, in my view, the production of the unredacted Hospital Psychiatric Ward Chart would cause significant harm to J.E., be prejudicial to third parties and would infringe public interests deserving of protection. Accordingly, I find that there is good reason why the redacted parts of the Hospital records should not be disclosed. As stated by Lowry J., as he then was, in North American Trust Co. v. Mercer International

Inc. (1999), 1999 CanLII 4550 (BC SC), 71 B.C.L.R. (3d) 72 (S.C.): “In controlling its process, the court will not permit one party to take unfair advantage or to create undue embarrassment by requiring another to disclose part of a document that could cause considerable harm but serve no legitimate purpose in resolving the issues.”

Cross-Motion

[30] The Plaintiffs are seeking a limited sealing order and the anonymization of the Plaintiffs in my written decision arising from the motion and cross-motion.

[31] J.E. argues that, since his head injury, he has sought employment with various employers and attempted to complete post-secondary education, without success. J.E. is concerned that if the court writes a decision using his full name, which is relatively unique, prospective employers and others will easily learn of his psychotic episode by searching him online which would be highly embarrassing, invade his privacy and compromise his dignity. He further argues that disclosure of his hospital chart to the public through the filed exhibits in these motions will have the same negative consequences.

[32] The issues on the cross-motion were initially whether the court should grant a limited sealing order and an order anonymizing the Plaintiffs in my written decision on the motion and cross-motion. However, the issue quickly became whether the Plaintiffs are subject to the Practice Direction related to discretionary requests for publication bans and, if so, whether they complied with the Practice Direction.

[33] Metrolinx argues that the request for the use of pseudonyms/initials and a sealing order fall under the request for the discretionary publication ban, which is dealt with under Part VI H of the Consolidated Provincial Practice Direction effective June 15, 2023, and that J.E. has failed to comply with its requirements.

[34] Part VI H of the Practice Direction establishes the default procedure to be followed when a party seeks a discretionary publication ban, including any discretionary order such as

anonymization, non-publication of a decision or a sealing order. The Practice Direction applies to all motions for discretionary publication bans and provides that:

• Any person seeking a discretionary order restricting publication of any Superior Court proceeding must serve and file a notice of motion and any supporting materials (s. 154);

• Any person seeking the publication ban must provide notice to the media of the motion (s. 155);

• The requesting party must complete and submit the Notice of Request for Publication Ban (s. 156); and

• The information on the Notice of Request for Publication Ban must be distributed electronically to members of the media who have subscribed to receive notice of all publication ban applications/motions in the Superior Court (s. 158).

[35] The Plaintiffs concede that they did not notify the media in accordance with the Practice Direction, arguing that they are not subject to the Practice Direction. The Plaintiffs contend that the relief sought on the cross-motion is related to, but different than, a true "publication ban" which is intended to advise the media that they are prohibited from publishing information about the case. They further maintain that their request is different than a traditional "initializing order" which affects the entire court file.

[36] In the alternative, if the relief sought is deemed to be a "publication ban" captured by the Practice Direction, the Plaintiffs ask the court to grant an adjournment of the cross- motion, to allow them to serve the appropriate notice form to the media.

[37] In my view, the Plaintiffs’ request for the use of pseudonyms/initials and a sealing order fall under the request for the discretionary publication ban and therefore the Practice Direction must be followed.

[38] I am satisfied, based on the record before me, that the cross-motion should be adjourned. In the interim, I exercise my discretion to issue an interim publication ban until the publication ban motion is argued on notice to the media. In my view, an interim publication

ban will preserve the Plaintiffs’ ability to argue their privacy concerns and will have minimal negative impact on the rights and interests of the media or any other persons.

[39] In my view, the Plaintiffs have complied with s. 154 of the Practice Direction, in that they have served and filed the appropriate notice of motion (cross-motion) and supporting materials. However, the Plaintiffs must also comply with the notice requirements of the Practice Direction and notify the media with respect to their motion seeking a discretionary publication.

Conclusion

[40] For the reasons outlined above, Metrolinx’s motion is dismissed. The Plaintiffs are not required to produce unredacted copies of the Ottawa Hospital records.

[41] The Plaintiffs’ cross-motion is adjourned until it can be heard on notice to the media pursuant to the Practice Direction. An interim publication ban shall be issued on the following terms:

a) This decision shall refer to the Plaintiffs by initials;

b) Exhibits “B” and “C” of the Defendant’s Motion Record dated May 19, 2023, shall be sealed;

c) Exhibits “C”, “D” and “E” of the Plaintiffs’ Cross Motion Record dated June 8, 2023, shall be sealed;

d) The Plaintiffs are directed to notify the media of the pending motion for a publication ban in the manner prescribed by the Practice Direction; and

e) The interim publication ban made today will continue, subject to any further order of this court, until final disposition of the motion for a publication ban.

[42] I am seized of the cross-motion. To that end, the parties are to contact the Case Management Coordinator in the Office of the Associate Judges to schedule the cross- motion before me on a priority basis. One hour shall be set aside for the hearing.

[43] If the parties cannot agree on the costs of the Defendant’s motion, they may file written submissions not exceeding three pages, exclusive of their respective bills of costs. The

Plaintiffs shall file their cost submissions within 20 days of the release of this decision. The cost submissions of the Defendant shall be filed within 10 days thereafter.

Marie T. Fortier

Associate Justice M. Fortier

DATE: November 23, 2023