COURT FILE NO.: CV-19-00080949-0000 DATE: 2024-02-05 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

J.E. and S.E. Plaintiffs/Respondents

– and –

Metrolinx and Boca Construction Ltd. Defendants/Appellant

BEFORE: K. McVey J.

COUNSEL: Christopher A. Obagi, Counsel for the Respondents Brandon W. Orct, Counsel for the Appellant

HEARD: January 9, 2024

DECISION

Introduction

[1] Pursuant to section 17 (a) of the Courts of Justice Act, R.S.O., 1990, c C.43, the Appellant appeals an interlocutory decision made by Associate Justice Fortier on November 23, 2023, wherein she declined to order production of unredacted medical records. For the reasons that follow, the appeal is dismissed.

[2] The underlying action arises from an injury allegedly sustained by one of the Respondents, J.E., in November 2017, after he hit his head on a Metrolinx bus sign that he claims was protruding unsafely over the sidewalk. At the time, he was a second-year engineering student at the University of Waterloo. A trial is scheduled to commence in this matter on March 4, 2024.

[3] On January 11, 2023, J.E. experienced a psychotic episode and was admitted to the Ottawa Hospital Psychiatric ward pursuant to s. 17 of the Mental Health Act, R.S.O. 1990, c. M.7. He was discharged on January 31, 2023. During his admission, he suffered from suicidal and homicidal ideations with auditory hallucinations. J.E. repeatedly alleged that a third party known to him had committed serious crimes against both J.E. and a minor. Both parties were identified in the medical records.

[4] On March 10, 2023, the Respondents produced to the Appellant approximately 361 pages of clinical notes and records from the Ottawa Hospital regarding the incident, as well as updated family doctor records. Before doing so, however, the Respondents redacted 42 sentences that recount the specific details of the delusions, including the parties involved and the nature of the crimes alleged.

[5] In June 2023, the Appellant brought a motion seeking an interlocutory order compelling the Respondents to produce unredacted copies of the records. On November 23, 2023, after reviewing the unredacted records, the associate judge dismissed the motion finding that the content of the redacted portions 1) was a non-factor in diagnosing the psychotic episode or determining its severity or trigger and therefore irrelevant to the issues in the action; and 2) production would unnecessarily expose innocent third parties, including a minor, to public stigma given the nature of the false allegations. The Appellant appeals this decision on the basis that the associate judge erred in law and made findings of fact absent a sufficient evidentiary foundation.

Standard of Review and Analysis

[6] Both parties agree that the associate judge set out the correct legal test. Generally, relevant documents must be produced in their entirety without redactions. However, redactions are permissible where 1) the redacted portion is clearly not relevant; and 2) there is a good reason why the information should not be disclosed (McGee v. London Life Insurance Company Limited, 2019 ONSC 1408).

[7] The standard of review on an appeal from the order of an associate judge is the same as that for an appeal of a judge: correctness for an error of law and palpable and overriding error for errors of fact (see Zeitoun et al. v. The Economical Insurance Group (2008), 91 O.R. (3d) 131 (Div. Ct.)). Whether the redacted material was relevant to the issues in the proceedings as defined by the pleadings is a question of law. Therefore, a standard of correctness applies. The determination of whether there was a “good reason” for the redactions, however, was an exercise of discretion entitled to deference unless the associate judge committed a palpable and overriding error.

Relevance

[8] Metrolinx argues that the details of the delusions are relevant to understanding the nature, extent, and severity of J.E.’s psychotic episode. The associate judge dealt with this argument at para 24 of her reasons:

In my view, determining the severity of the medical episode does not require the detailed disclosure of the contents of the 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.

[9] Therefore, the motion Judge found as a fact, after having reviewed the unredacted records, that the specifics of the delusion had not played a role in the treatment or diagnosis of J.E.’s psychotic episode, or his subsequent discharge from hospital. This factual finding is entitled to significant deference. In Gottardo Properties (Dome) Inc. v. Toronto (City), [1998] O.J. No. 3048 at para 48, Laskin J.A. said the following about the purposes underlying the high level of appellate deference paid to findings of fact:

Deference is desirable for several reasons: to limit the number and length of appeals, to promote the autonomy and integrity of the trial or motion court proceedings on which substantial resources have been expended, to preserve the confidence of litigants in those proceedings, to recognize the competence of the trial judge or motion judge and to reduce needless duplication of judicial effort with no corresponding improvement in the quality of justice.

[10] The standard of palpable and overriding error was further described as follows by the Court of Appeal in Farsi v. Da Rocha, 2020 ONCA 92 at para. 35:

A palpable and overriding error is one that is clearly wrong, unreasonable, or not reasonably supported on the evidence: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 110. The Supreme Court recently explained in Salomon v. Matte-Thompson, 2019 SCC 14, 432 D.L.R. (4th) 1, at para. 33, "[w]here the deferential standard of palpable and overriding error applies, an appellate court can intervene only if there is an obvious error in the trial decision that is determinative of the outcome of the case."

[11] On appeal, this Court also reviewed the unredacted records and is not persuaded that the associate judge made any palpable and overriding errors when finding there was no connection between the specifics of the delusions and the trigger, diagnosis, or treatment of the psychotic episode. Her factual findings were grounded in the record.

[12] Once that connection was found lacking, I see no legal error in the motion Judge’s conclusion that the specifics of the delusions were therefore irrelevant to the issues to be decided at trial.

Good Reason for the Redactions

[13] The Appellant argues that the associate judge’s finding that the allegations were untrue, which lead to her finding that there was a good reason to refuse production, was made without an evidentiary foundation. I disagree. First, a sworn affidavit from J.E. dated June 8, 2023, was before the associate judge wherein he confirmed that the allegations were false. Second, the doctors who assessed J.E. during his hospitalization repeatedly described the allegations as delusionary.

[14] In the result, I see no basis to interfere with the associate judge’s exercise of discretion in declining to order production of irrelevant material on the basis that doing so would unnecessarily expose innocent third parties, including a minor, to significant social stigma. The appeal is therefore dismissed.

Costs

[15] As the successful party, the Respondents are entitled to their costs of the appeal on a partial indemnity basis. The Respondents submit their partial indemnity costs as $10,034.40, all-inclusive.

[16] The overall objective of fixing costs is to fix an amount that is objectively reasonable, fair, and proportionate for the unsuccessful party to pay in the circumstances of the case (see Apotex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587 at para 61). This matter was of medium complexity and the costs outlines for both parties on a partial indemnity basis were similar, with the Respondents spending slightly fewer hours in preparation.

[17] Accordingly, I fix costs of the appeal at $10,000, all-inclusive, payable by the Appellant within 30 days.

Justice K. McVey Date: February 5, 2024