SUPREME
COURT OF CANADA
Between:
Smith
& Nephew Inc.
Appellants
v.
Louise Glegg
Respondent
AND BETWEEN:
Christopher Carter
and Gilles Dextradeur
Appellant
v.
Louise Glegg
Respondent
Official English Translation
Coram:
Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
Reasons for
Judgment:
(paras. 1 to 32)
|
LeBel J. (Bastarache, Binnie, Deschamps, Fish, Abella and
Charron JJ. concurring)
|
______________________________
Glegg v. Smith & Nephew Inc., [2005] 1 S.C.R. 724, 2005
SCC 31
Smith & Nephew Inc. Appellant
v.
Louise Glegg Respondent
and between
Christopher Carter and Gilles Dextradeur Appellants
v.
Louise Glegg Respondent
Indexed as: Glegg v. Smith & Nephew Inc.
Neutral citation: 2005 SCC 31.
File No.: 30060.
2005: January 13; 2005: May 20.
Present: Bastarache, Binnie, LeBel, Deschamps, Fish,
Abella and Charron JJ.
on appeal from the court of appeal for quebec
Civil procedure — Production of documents — Medical
records — Examination on discovery — Plaintiff suing her attending physicians
and manufacturer of prosthesis in civil liability — Significant portion of
damages sought under heads of pain and suffering, shock and nervousness —
Plaintiff objecting at examination on discovery to disclosure of medical record
kept by her psychiatrist — Whether objection should be dismissed — Whether
plaintiff implicitly waived confidentiality of her medical record — Whether
defendants demonstrated relevance of this disclosure.
Physicians and surgeons — Professional secrecy —
Medical record — Access to content of medical record — Extent of disclosure —
Principle of relevance.
Physicians and surgeons — Professional secrecy —
Medical record — Waiver — Waiver by patient of confidentiality of her
medical record and of physician’s duty of professional secrecy — Scope and
limits of this waiver.
G sued her attending physicians and the manufacturer
of a metal prosthesis used to perform a reduction on her fractured femur in
civil liability. She claimed damages for, inter alia, pain and
suffering, shock and nervousness. She alleged that allergic reactions to the
insertion of the implant together with pain caused by the implant itself left
her disabled and unable to work, and that they triggered a reactive depression.
At the examination on discovery, before the filing of the defence, the
appellants learned that G had been consulting a psychiatrist and requested the
disclosure of the psychiatric record. G refused, and the parties took the
matter to the Superior Court. At an initial hearing, the judge ordered counsel
for G to produce the record so that he could rule on the objection. At the
second hearing, the judge dismissed the objection because he was unable to
verify the grounds for it due to G’s failure to comply with the original
order. The Court of Appeal reversed that decision and ordered the Superior
Court to determine which portions of the record were relevant and should be
disclosed.
Held: The
appeal should be allowed. The Superior Court’s decision should be restored.
Despite its importance and the protection afforded it,
particularly under the Charter of human rights and freedoms and statutes
governing professional orders, the physician’s duty of professional secrecy has
limits. The holder of the right to secrecy may waive it, and the disclosure of
confidential information may be required to protect competing interests. A
waiver, even an implied one, does not authorize unlimited and uncontrolled
access to the medical record. The party seeking access must establish the
apparent relevance of the requested information to the exploration of the
merits of the case and to the conduct of the defence. At an examination on
discovery, whether before or after the filing of the defence, relevance is interpreted
broadly, mainly in relation to the allegations set out in the pleadings. At
this stage, the parties are under an implied obligation of confidentiality. If
the relevance of the evidence is contested, it is the judge who decides and who
controls the conditions for access to and dissemination of the information.
[17-26]
In the case at bar, the appellants demonstrated the
relevance of the requested information and the existence of an implied waiver
resulting from, inter alia, the nature of the allegations in the action
and the answers given by G at the examination on discovery. The judge could
therefore have ordered at this stage that the record be disclosed to counsel
for the appellants. Had G complied with the original order and produced the
record, the judge could have taken the necessary measures to rule on the
objections to the disclosure of specific items in the record. In a situation
such as this, the Court of Appeal could not at this stage of the proceedings
have imposed a heavier burden on the appellants, who had already demonstrated
the apparent relevance of the requested information. [27] [31]
Cases Cited
Applied: Frenette
v. Metropolitan Life Insurance Co., [1992] 1 S.C.R. 647; Lac
d’Amiante du Québec Ltée v. 2858‑0702 Québec Inc., [2001]
2 S.C.R. 743, 2001 SCC 51; referred to: M.
(A.) v. Ryan, [1997] 1 S.C.R. 157; Foster Wheeler Power Co. v.
Société intermunicipale de gestion et d’élimination des déchets (SIGED) inc.,
[2004] 1 S.C.R. 456, 2004 SCC 18; Pilorgé v. Desgens,
[1987] R.D.J. 341; Goulet v. Lussier, [1989] R.J.Q. 2085;
Coffey v. Tran, [1991] R.D.J. 107; Kruger Inc. v. Kruger,
[1987] R.D.J. 11; Westinghouse Canada Inc. v. Arkwright Boston
Manufacturers Mutual Insurance Co., [1993] R.J.Q. 2735; R. v.
McClure, [2001] 1 S.C.R. 445, 2001 SCC 14; R. v.
Gruenke, [1991] 3 S.C.R. 263; Québec (Procureur général) v.
Dorion, [1993] R.D.J. 88; Champagne v. Scotia McLeod Inc.,
[1992] R.D.J. 247.
Statutes and Regulations Cited
Act
respecting health services and social services,
R.S.Q., c. S‑4.2, s. 19.
Charter of human rights and
freedoms, R.S.Q., c. C‑12, s. 9.
Code of Civil Procedure, R.S.Q., c. C‑25, arts. 46, 395, 397, 402.
Code of ethics of physicians, R.R.Q. 1981, c. M‑9, r. 4.1, s. 20(3).
Medical Act, R.S.Q., c. M‑9, s. 42.
Professional Code, R.S.Q., c. C‑26, s. 60.4.
Rules of practice of the
Superior Court of Québec in civil matters,
R.R.Q. 1981, c. C‑25, r. 8, rule 3.
Authors Cited
Ferland, Denis, et
Benoît Emery. Précis de procédure civile du Québec, vol. 1, 4e
éd. Cowansville, Qué.: Yvon Blais, 2003.
Royer, Jean‑Claude. La
preuve civile, 3e éd. Cowansville,
Qué.: Yvon Blais, 2003.
APPEAL from a judgment of the Quebec Court of Appeal
(Baudouin and Forget JJ.A. and Biron J. (ad hoc)), [2003] Q.J.
No. 13292 (QL), J.E. 2003-1912, reversing a decision of Baker J.
rendered on February 27, 2003. Appeal allowed.
Gerald R. Tremblay, Q.C., Catherine Mandeville and Mélanie Dugré,
for the appellants Christopher Carter and Gilles Dextradeur.
Odette Jobin‑Laberge, for the appellant Smith & Nephew Inc.
Dominic Desjarlais,
for the respondent.
English version of the judgment of the Court delivered
by
LeBel J. —
I. Introduction
1
This appeal raises a problem relating to the application of the
physician’s duty of professional secrecy. At issue is access to the
psychiatric record kept by a physician consulted by a patient who is suing her
attending physicians and the manufacturer of a metal prosthesis used by one of
them to perform a reduction on her fractured femur. In respect of objections
made during examinations on discovery to questions and to requests to produce
documents, the Quebec Court of Appeal reversed an interlocutory judgment of the
Superior Court ordering the production of a record of psychiatric
consultations. In my view, the respondent had waived professional secrecy in
the circumstances of this case, and the appellants had furnished sufficient
proof that the production of the record would be useful to them in conducting
their defence at the examination on discovery stage while readying the case for
trial. Consequently, as I will explain in the reasons that follow, I would
allow the appeal. I would restore the Superior Court’s judgment, which
dismissed the respondent’s objections to production of the medical record in
issue.
II. Origin and History
of the Case
2
The case began when Ms. Glegg had an unfortunate accident. On
July 9, 1996, she fell off a bicycle and fractured her right femur
and her hip. After she was taken to a hospital, one of the appellants,
Dr. Carter, an orthopedic surgeon, performed a surgical reduction of the
fracture. As part of this procedure, he inserted a metal implant manufactured
and sold by the appellant Smith & Nephew Inc. Dr. Carter conducted
the medical follow‑up that is normal in such cases. On May 26,
1997, the respondent consulted another orthopedic surgeon, Dr. Dextradeur,
who is also an appellant in this case, about pain she was suffering in one of
her feet. On December 11, 1997, after confirming the consolidation of the
fracture, Dr. Carter performed a second operation in which he removed the
implant.
3
The respondent complained of suffering intense pain between the two
operations. She said that she was unable to work because of the pain. As a
result, she filed an action in damages against Drs. Carter and Dextradeur
and against Smith & Nephew Inc. on March 31, 2000. The suit
against the two physicians alleged that they were professionally liable for
their failure to foresee, diagnose or treat allergic reactions caused by the
implant and to provide the respondent with sufficient information about the
implant’s characteristics. The basis of the action against the manufacturer
was that its product was dangerous and that insufficient information was
provided regarding the risks involved in having it implanted.
4
The respondent claimed $4,655,000 from the appellants solidarily. The
declaration sought, inter alia, $2,000,000 for pain and suffering,
shock, nervousness and loss of enjoyment of life. According to the
allegations, allergic reactions to the insertion of the implant together with
pain caused by the implant itself left the respondent disabled and unable to
work. They also allegedly triggered a reactive depression.
5
After the action was served, counsel for the appellants followed the
usual procedures of requesting the production of documents and holding an
examination on discovery. Before the filing of the defence, they summoned
Ms. Glegg for an examination on discovery pursuant to art. 397 of the
Code of Civil Procedure, R.S.Q., c. C‑25 (“C.C.P.”). In
reviewing the file and examining the respondent in 2000, the appellants learned
that Dr. Pratt, a dermatologist consulted by the respondent about
hypersensitivity she experienced after the fracture reduction, had advised her
to consult a psychiatrist, Dr. Gawlik. The respondent then confirmed that
she had suffered from depression after the accident and the operations. She
acknowledged that she had been consulting Dr. Gawlik on a regular basis
since November 1999 because of psychological problems caused by these
events.
6
The examination on discovery resumed on April 24, 2002. Counsel
for the appellants asked Ms. Glegg further questions about her
consultations with Dr. Gawlik. She said that she had consulted him
approximately 40 times between November 1999 and November 2000.
The appellants requested the disclosure of Dr. Gawlik’s record. At this
point, counsel for the respondent put on the record an undertaking to produce
the documents, although the undertaking was made without prejudice and with an
indication that the matter would be discussed later. The examination was then
adjourned. On July 10, 2002, counsel for the respondent informed the
appellants that his client did not consent to the production of
Dr. Gawlik’s clinical notes due to the confidential nature of these
documents.
7
A few weeks later, on August 1, 2002, counsel for the
respondent sent the appellants a draft letter, apparently prepared by
Dr. Gawlik, to a federal public servant responsible for reviewing
applications for disability benefits under the Canada Pension Plan . This
document confirmed that the consultations had taken place and gave some
explanations regarding the circumstances that had caused Ms. Glegg to
consult him. However, the portion of the letter regarding the diagnosis had
been deleted. Meanwhile, on July 11, 2002, the appellants’ expert
psychiatrist, Dr. Bourget, had met with Ms. Glegg and conducted his
own medical assessment. On September 25, 2002, this expert reported
his findings to the appellants. He stated that he felt Dr. Gawlik’s
record would be highly relevant to and useful for the purpose of assessing the
respondent’s psychiatric condition and forming an expert opinion on the
subject. Upon receiving this information, the appellants once again requested
the disclosure of Dr. Gawlik’s record. The respondent still refused to
consent to its disclosure. Consequently, a few months later, the parties
appeared before the Superior Court for a decision on the objection to
disclosure of Dr. Gawlik’s record. By that time, the appellants had filed
their defences. The objection was heard by Baker J. A new lawyer was now
representing Ms. Glegg. The firm that had been representing her had
recently transferred the case to him.
8
Unfortunately, reconstructing the progress and content of the proceeding
before Baker J. is somewhat difficult. In accordance with standard
practice, counsel for the parties attended at the judge’s chambers to make
submissions on the objections raised during the examination on discovery of
Ms. Glegg. At that time, the judge took cognizance of the pleadings and
of the transcript of the examination. As this part of the proceedings took
place in chambers rather than in the courtroom, the courthouse’s recording
system did not record the parties’ representations or the exchanges between
them and the judge. Nor was a stenographer present with counsel in the judge’s
chambers. Consequently, the only written record of this legal proceeding
appears in the minutes of the hearings of February 25 and 27, 2003.
9
On February 25, an initial hearing took place in the chambers of
Baker J. The minutes of the hearing contain only a transcript of a
decision rendered by the judge. This decision ordered Mr. Desjarlais,
Ms. Glegg’s lawyer, to return on February 27, 2003, with a
portion of the cases of documents he had received from his predecessor:
[translation] The Court orders counsel to appear on Thursday,
February 27, 2003, in Room 14.21 and orders Mr. Desjarlais
to bring with him the boxes of documents from Mr. Samuel containing the
reports or notes of Dr. Gawlick [sic].
Diane Bourbonnais
Clerk
10
The second hearing was held as scheduled on
February 27, 2003. Baker J. dismissed the objection to
disclosure of Dr. Gawlik’s record that had been made during the
examination on discovery. That decision is the one at issue in this appeal.
The minutes are silent as to the substance of counsel’s arguments and
Baker J.’s reasons. They mention only the attendance of counsel and the
disposition of the judgment:
[translation]
2:35 p.m. Case continued from
February 25, 2003.
Representations of Ms. Dugré.
Representations of Mr. Desjarlais.
Decision:
The objection at page 50 of the examination of
Louise Glegg is dismissed.
11
Before the decision of the Quebec Court of Appeal is discussed, what
took place in the Superior Court must be understood and explained. This
subject was broached in a number of questions and exchanges at the hearing
before this Court. From the circumstances of the examination, I am convinced
that counsel for the appellants wanted to obtain the notes in Dr. Gawlik’s
record. At the first hearing, on February 25, counsel for the respondent
did not have those notes in his possession. Baker J. requested that the
file containing the notes be produced so that he could rule on the objection.
The order could have been more specific. Nevertheless, in the circumstances,
the request made to counsel was clear: he was to produce the medical record. On
February 27, counsel produced the files that had been transferred to him
by the colleague who had formerly represented Ms. Glegg.
Dr. Gawlik’s notes were not in them. It can be presumed that counsel was
acting upon his client’s instructions in failing to produce them in the
Superior Court. However, counsel could not justify this failure by arguing
that the terms of Baker J.’s order were vague, as the order was
sufficiently clear in the circumstances in which it was made. The judge’s
order could have concerned nothing other than the notes from the interviews
with the respondent. It must accordingly be concluded that the respondent
failed to comply with the judge’s order. Consequently, Baker J. dismissed
the objection on the basis that the respondent had not permitted him to verify
the grounds for it. The respondent appealed from this decision, and the Court
of Appeal ruled in her favour: [2003] Q.J. No. 13292 (QL).
12
The Court of Appeal allowed the appeal and ordered that the case be
referred back to the Superior Court. The Superior Court was to resume its
consideration of the case so as to determine which portions of the psychiatric
record were relevant and should be disclosed; in so doing, it was to hear both
sides and, if necessary, hold the hearing in camera. The decision
stressed the importance of the physician’s duty of professional secrecy,
particularly in the field of psychiatry.
13
The Court of Appeal acknowledged that, while the institution of medical
malpractice proceedings may involve an implied waiver of secrecy, this waiver
is limited by the principle of relevance. Although the right to defend oneself
must be protected, it is also important to protect the right to privacy raised
by the psychiatrist‑patient relationship. On this point, the Court of
Appeal was of the opinion that this Court’s decision in Frenette v.
Metropolitan Life Insurance Co., [1992] 1 S.C.R. 647, was not the
final word of the courts on the disclosure of medical and hospital records and
on waiver of the confidentiality of such records, especially in the field of
psychiatry. In the Court of Appeal’s view, M. (A.) v. Ryan, [1997]
1 S.C.R. 157, had given greater weight to the right to privacy and
imposed a more onerous burden on someone wishing to gain access to a patient’s
psychiatric record. The Court of Appeal also criticized the approach adopted
by the appellants to gain access to the psychiatric record. Instead of making
the request in the course of an examination on discovery, the defendants should
have served a motion to produce the medical record pursuant to
art. 402 C.C.P. Had they done so, the debate could have been
structured more appropriately and all relevant questions of fact and law could
have been incorporated into it. The Court of Appeal’s judgment is now the
subject of the appeal, for which leave was granted, before this Court.
III. Analysis
A. Issues
14
To determine whether the trial judge was right to dismiss the
respondent’s objection, it is necessary to look once again at the issues
relating to the nature of the physician’s duty of professional secrecy in
Quebec law and to waivers of the patient’s right to secrecy. First, the
requirements for such a waiver must be determined. Then, once the principles
have been stated, it will be necessary to review the procedure for raising such
a waiver, the burden of proof on the party seeking access to the content of a
medical record and the extent of the disclosure. This analysis will be carried
out in the specific context of examinations on discovery and proceedings
relating to the disclosure of documents conducted in readying a case for trial
in Quebec civil procedure.
B. Legislative
Framework of the Physician’s Duty of Professional Secrecy
15
It should be borne in mind that the case at bar falls under the law of
civil liability. It is therefore governed by Quebec civil law and civil
procedure. Although there is no denying the influence of the common law and,
in particular, the complexity of the sources of Quebec’s law of evidence in
civil matters, the fact remains that this law is now codified. It is governed
by a complex set of legislative rules. Some of these rules are quasi‑constitutional
in nature by virtue of the Charter of human rights and freedoms, R.S.Q.,
c. C‑12 (“Quebec Charter”). (See on this subject: Foster
Wheeler Power Co. v. Société intermunicipale de gestion et d’élimination des
déchets (SIGED) inc., [2004] 1 S.C.R. 456, 2004 SCC 18,
at paras. 18‑27; J.-C. Royer, La preuve civile (3rd ed. 2003),
at pp. 903‑11.)
16
Using a variety of legal techniques based on rules of practice that
established immunities from disclosure, Quebec law has long recognized the
fundamental importance of the physician’s duty of professional secrecy in
therapy relationships (Royer, at pp. 904‑906). Today, s. 9 of
the Quebec Charter recognizes that every person has a right to
professional secrecy. This right exists in respect of all persons bound to
professional secrecy. The Professional Code, R.S.Q., c. C‑26,
imposes an obligation of professional secrecy on all members of the
professional orders it governs (s. 60.4). Physicians are required to
belong to an order known as the “Collège des médecins”, to which the Professional
Code and the Medical Act, R.S.Q., c. M‑9, apply.
Section 42 of the Medical Act establishes an immunity from the
disclosure of information obtained by a physician in the course of a
professional relationship with a patient. The Code of ethics of physicians,
R.R.Q. 1981, c. M‑9, r. 4.1, recognizes the importance of the
confidentiality of this information and imposes on physicians a strict
obligation to keep it confidential (s. 20(3)). Thus, as is the case with
lawyers, the physician’s duty of professional secrecy includes both an
obligation of confidentiality and an immunity from disclosure (Foster
Wheeler, at paras. 28‑29). Although there is no need to
consider this aspect of the issue any further, it should be borne in mind that
Quebec’s legislation includes measures intended to ensure the confidentiality
of records kept by hospitals and institutions belonging to the health and
social services network (Act respecting health services and social services,
R.S.Q., c. S‑4.2, s. 19). This Court considered the Quebec
legislation in Frenette, but the appeal now before it is limited to the
application of the physician’s duty of professional secrecy itself to records
kept by physicians regarding their patients.
17
The Court of Appeal emphasized the importance of the physician’s duty of
professional secrecy. It properly noted the importance of the right to privacy
implicit in the psychiatrist‑patient relationship. However, as important
as professional secrecy may be, it is not absolute. Despite the protection
afforded it, particularly under the Quebec Charter and statutes
governing professional orders, it has limits. Disclosure of confidential
information may be required to protect competing interests. Also, the holder
of the right may implicitly or explicitly waive it (Royer, at pp. 954‑59).
C. Waiver of the Patient’s Right to
Professional Secrecy
18
Recognizing express waivers does not give rise to policy problems. The
rules regarding professional secrecy are rules of protective public order. The
holder of the right may waive it. This Court gave effect to such waivers in
respect of hospital records in Frenette. This principle is also valid
in relation to the physician’s duty of professional secrecy, which protects the
same right to privacy. It is enough if the waiver is voluntary and clear, and
if the person waiving the right is aware that the right exists (Royer, at
pp. 954‑55). If so, it is necessary to consider the scope and
limits of the waiver, especially in light of the relevance of the information
sought, at the stage of the examination on discovery and the production of
documents, in readying a case for trial and, if the case progresses that far,
at the trial itself.
19
However, this appeal raises a problem of implied waiver. Although a
waiver cannot be presumed, the courts and the commentators have acknowledged
this form of waiver and given effect to it. An implied waiver is inferred from
actions of the holder of the right that are inconsistent with an intent to
maintain professional secrecy or, rather, to avoid the disclosure of
confidential information protected by professional secrecy. The rule in
respect of medical malpractice is well established, as Royer observes:
[translation]
In the health care sphere, a litigant who raises his or her medical
record or state of health as a factor relevant to the case tacitly waives the
confidentiality of his or her medical record and the right to professional
secrecy . . . . [p. 960]
20
The decisions of Quebec’s courts on this subject have been consistent,
as can be seen from this Court’s review of them in Frenette (see also: Pilorgé
v. Desgens, [1987] R.D.J. 341 (C.A.); Goulet v. Lussier, [1989]
R.J.Q. 2085 (C.A.); Coffey v. Tran, [1991] R.D.J. 107
(C.A.)). By bringing an action against her physicians and the manufacturer of
the prosthesis in which nearly half the amount she claimed was under the heads
of pain and suffering, shock and nervousness, the respondent raised the issue
of her state of health, its causes and its consequences. She thus consented to
having questions that would obviously be very private in nature discussed in
court or at the preliminary stage of readying the case for trial. At any rate,
even had her adversaries waived an examination on discovery, she would still
have had to establish the basis of their civil liability at trial. She would
have had to explain her state of health and the harm she had suffered and would
therefore have had to effectively waive secrecy or the right protecting her
privacy.
D. Requirement of
Relevance
21
It should be mentioned here that the nature of the interests at stake
necessarily brings into play a principle that has a moderating effect on the
evidentiary process in civil matters, including at the examination on discovery
stage, namely relevance. This principle governs both the examination on
discovery and the disclosure of records. Although there was little discussion
about this in Frenette because of the circumstances of the case, that
decision did not establish a principle that an express or implied waiver would
authorize unlimited and uncontrolled access to a patient’s medical record. On
the contrary, the limits on secrecy are reflected in the principle of
relevance, which applies at all stages of a civil action.
22
This principle applies to examinations on discovery, whether before or
after the filing of the defence. At this stage, relevance is assessed mainly
in relation to the allegations set out in the pleadings (Lac d’Amiante du
Québec Ltée v. 2858‑0702 Québec Inc., [2001] 2 S.C.R. 743,
2001 SCC 51, at para. 53; Kruger Inc. v. Kruger, [1987]
R.D.J. 11 (C.A.)). The examination on discovery facilitates the
disclosure of evidence to ensure that trials are conducted fairly and
efficiently. It thus enables a litigant to clarify the bases of the claim
against him or her, to assess the quality of the evidence and, occasionally, to
determine the appropriateness of carrying on with the defence or at least to
better define its framework. Used properly, this procedure can help expedite the
conduct of the trial and the resolution of the issues before the court (see
Royer, at p. 411; Lac d’Amiante, at paras. 59‑60). From
this perspective, access to relevant evidence is inevitably linked to the
defendant’s right to make full answer and defence. If the relevance of the
evidence is contested, the judge must settle the issue.
23
In the context of an examination on discovery or a disclosure of
evidence that takes place while a case is being readied for trial, the concept
of relevance is interpreted broadly. Being relevant means being useful for the
conduct of an action, as Proulx J.A. noted in a case concerning the
disclosure of a written document:
[translation]
. . . the defendant must satisfy the court not that the evidence is
relevant in the traditional sense of the word in the context of a trial, but
that disclosure of the document will be useful, is appropriate, is likely to
contribute to advancing the debate and is based on an acceptable objective that
he or she seeks to attain in the case, and that the document to be disclosed is
related to the dispute . . . .
(Westinghouse Canada Inc. v. Arkwright Boston Manufacturers
Mutual Insurance Co., [1993] R.J.Q. 2735 (C.A.), at p. 2741)
24
This legal framework continues to be valid, and this Court did not
intend to do away with it or alter it in M. (A.) v. Ryan. In that case,
which concerned a civil liability issue that arose in British Columbia, the
Court established a rule protecting the confidentiality of psychiatric
information and a procedure for making and reviewing requests for the
disclosure of such information. The judgment thus introduced developments into
the common law in an area in which it, unlike in the Quebec law of evidence,
recognizes only a few “class” privileges encompassing an entire class of
situations (R. v. Gruenke, [1991] 3 S.C.R. 263, at
p. 286; R. v. McClure, [2001] 1 S.C.R. 445,
2001 SCC 14, at paras. 27‑30, per Major J.).
The common law instead tends to use “case‑by‑case” privileges in
accordance with the “Wigmore test”. In Quebec law, as mentioned above, the
legislature has spoken. The physician’s duty of professional secrecy and the
confidentiality of medical records are recognized. What remains to be determined
is in what cases and in what manner the disclosure of protected information
will be permitted.
25
Because of the meaning ascribed to “relevance” by the courts, the test
of relevance plays a central role in this area. It requires that the
importance of the right to privacy — which is already protected by the Quebec Charter
— implicit in the legislative recognition of the physician’s duty of
professional secrecy be taken into account. It requires the party seeking
access to the information to establish the apparent relevance of the requested
information to the exploration of the merits of the case and to the conduct of
the defence. A court assessing the impact of disclosure must bear in mind that
this issue has arisen in the context of the examination on discovery, a stage
at which the parties are under an implied obligation of confidentiality (Lac
d’Amiante). Furthermore, the Rules of practice of the Superior Court of
Québec in civil matters, R.R.Q. 1981, c. C‑25, r. 8, limit
the dissemination of this type of information. Rule 3 requires that it be
kept in a sealed envelope. Access is limited to the parties and their counsel.
26
The judge hearing the case must take care to ensure that documents
disclosed and questions asked during examinations on discovery are within the
limits of what is relevant, that is, of what is useful for the case. This
supervisory function is especially important and must be discharged very
carefully when there are objections relating to the right to privacy. If need
be, the judge sets the conditions for access to and dissemination of the
information when ruling on the confidentiality of the information and the
disclosure thereof (Québec (Procureur général) v. Dorion, [1993]
R.D.J. 88 (C.A.); Champagne v. Scotia McLeod Inc., [1992]
R.D.J. 247 (C.A.); D. Ferland and B. Emery, Précis de
procédure civile du Québec (4th ed. 2003), t. 1, at
pp. 570‑72).
E. Controlling
Disclosure in Practice
27
In the case at bar, the physician’s duty of professional secrecy was
applicable. The record kept by Dr. Gawlik was confidential. However, the
appellants had demonstrated the relevance of the requested information and the
existence of an implied waiver of the record’s confidentiality. This resulted
from, inter alia, the nature of the allegations in the action against
the appellants and the answers given by the respondent at the examinations on
discovery. The requested information was apparently useful for, that is,
relevant to, evaluating the civil liability alleged by the respondent and the
damages she was claiming. It should also be noted that the request for
disclosure concerned consultations subsequent to the accident and the treatment
undergone by Ms. Glegg that were related to the problems that appeared to
be the subject of the claim. It did not amount to a request for an
uncontrolled and unlimited investigation into Ms. Glegg’s entire medical
history. The judge could therefore have ordered at this stage that the record
be disclosed to counsel for the appellants. Disclosure of the record would
also have allowed the judge to rule subsequently on specific objections to the
disclosure or use of specific items in the record.
28
In practice, since the apparent usefulness of the evidence had been
demonstrated, the onus was on the respondent to explain her objection and show
why the requested documents should not be produced. She therefore had to
ensure that the judge was in a position to understand the objection, determine
how it should be debated before him and rule on it on an informed basis.
29
The Code of Civil Procedure does not provide for every detail of
the procedure that would apply in every situation. In fact, the Code itself
recognizes that it is impossible to provide for everything. Article 46 C.C.P.
states that “[t]he courts and judges have all the powers necessary for the
exercise of their jurisdiction.” Article 395 C.C.P. adds that
judges have the power to decide on disputes that arise in the course of
examinations on discovery. These provisions permit judges to deal with the
inevitable situations in which the Code or the court’s rules of practice are
silent.
30
In this context, the judge retains the power to take any action that
would both preclude a premature or unnecessary disclosure of confidential
information and ensure that he or she can obtain sufficient information on the
nature of the dispute and can guide the proceedings on the issue. Judges have
many options in such situations (see Foster Wheeler, at paras. 44‑47,
and Lac d’Amiante, at paras. 35‑39). A party making an
objection can be required to file an affidavit explaining the basis for the
objection, and listing and describing the documents in issue. The judge could
then review the evidence in private, in the parties’ absence. It would also be
possible, as has already been mentioned, for the judge to order that the
documents be disclosed, subject to the obligations of confidentiality that
would apply at this stage of the proceedings. The judge could also order
counsel not to disclose the documents to third parties or to the parties
themselves. None of these actions were taken here, owing to the way in which
the respondent conducted the proceeding into her objection.
31
In a situation such as this, the Court of Appeal could not at this stage
of the proceedings have imposed a heavier burden on the appellants, who had
already demonstrated the apparent relevance of the requested information. The
court’s decision does not explain what evidence the appellants should or could
have adduced or what they should or could have demonstrated to obtain the
disclosure of Dr. Gawlik’s record. The decision also overlooks the fact
that the respondent had, as mentioned above, refused to comply with Baker J.’s
order to produce Dr. Gawlik’s notes. In the circumstances,
Baker J.’s decision should have been upheld and the respondent’s objection
dismissed. I need not discuss how the examination and the disclosure of
evidence will be conducted in the future or elaborate on specific objections
whose nature is unknown to me. If such objections are made in the future, they
will have to be considered by judges of the Superior Court in exercising the
powers explicitly or implicitly conferred on them in Quebec civil procedure.
IV. Conclusion
32
For these reasons, the appeal is allowed and the judgment of the Quebec
Court of Appeal is set aside. The judgment of the Superior Court of Quebec
dismissing the respondent’s objection is restored. The appellants will have
their costs.
Appeal allowed with costs.
Solicitors for the appellants Christopher Carter and Gilles
Dextradeur: McCarthy Tétrault, Montréal.
Solicitors for the appellant Smith & Nephew
Inc.: Lavery, de Billy, Montréal.
Solicitors for the respondent: Lamarre Linteau &
Montcalm, Montréal.