Carter Estate v. Fleming et al., (2015) 367 Nfld. & P.E.I.R. 253 (PEICA)

• Judge: Jenkins, C.J.P.E.I., Murphy and Mitchell, JJ.A.
• Case Date: April 22, 2015
• Jurisdiction: Prince Edward Island
• Citations: (2015), 367 Nfld. & P.E.I.R. 253 (PEICA)

Carter Estate v. Fleming (2015), 367 Nfld. & P.E.I.R. 253 (PEICA);

    1147 A.P.R. 253

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. JN.015

The Estate of Faye Carter, Gregory Byron Jones, Rachel Veronica Jones, Jessica Clara Jones, Jeffrey Byron Jones, James William Earl Jones, and Keegan Gregory Norman Jones (appellants) v. Dr. Barry Flemming, Dr. Ayodeji Harris-Eze, Dr. John Goodwin (respondents) and The Government of Prince Edward Island, Operating the Queen Elizabeth Hospital of Charlottetown, Prince Edward Island (respondent)

(S1-CA-1303; 2015 PECA 9)

Indexed As: Carter Estate v. Fleming et al.

Prince Edward Island Court of Appeal

Jenkins, C.J.P.E.I., Murphy and Mitchell, JJ.A.

June 11, 2015.

Summary:

Carter died while in care at the defendant Queen Elizabeth Hospital. The Hospital brought in Dr. Norman Hill to do a review of the circumstances leading to Carter's death. Carter's Estate and several family members (the plaintiffs) asserted Carter died as a result of the negligence of the defendants, or some of them, and moved for the production of Dr. Hill's independent report (the Hill Report). The defendants asserted that the Hill Report was the result of a Quality Improvement Activity (QIA), a process created by P.E.I.'s Health Services Act, and confidential by law. This was the first time that law had been tested in the province.

The Prince Edward Island Supreme Court, in a decision reported at (2014), 355 Nfld. & P.E.I.R. 244; 1106 A.P.R. 244, found that the Hill Report was protected from disclosure by virtue of s. 29 of the Hospital Services Act. "[W]hat Dr. Hill did ... was entirely within the ambit of the provisions respecting QIAs. This review of bad results is a very desirable process and it depends on a clear assurance of confidentiality to ensure full and frank disclosure." The plaintiffs appealed.

The Prince Edward Island Court of Appeal allowed the appeal and ordered the production of the full Hill Report, with partial indemnity costs to the plaintiffs. The Hill Report: (a) was not protected under s. 29 of the Act; (b) did not fall within the ambit of litigation privilege under rule 31.06(3); and (3) failed to meet the first of the four criteria for "case-by-case privilege", i.e., the communications did not originate in a confidence that they would not be disclosed.

Evidence - Topic 4155

Witnesses - Privilege - Privileged topics - Hospital records or committee reports (incl. peer reviews and quality assurance reviews) - Carter died while in care at the defendant Hospital - The Hospital brought in Dr. Hill to do a review of the circumstances leading to Carter's death - The plaintiffs asserted Carter died as a result of the negligence of the defendants, and moved for the production of Dr. Hill's report - The motion judge found that the Hill Report was the result of a "quality improvement activity" (QIA) and protected from disclosure by virtue of s. 29 of the Hospital Services Act - The Prince Edward Island Court of Appeal allowed the appeal - (1) The protection of s. 29 applied only to quality improvement information communicated or created under the auspices of a "quality improvement committee" under the Act - Dr. Hill was not a quality improvement committee - That being the case, the Hill Report could not be a QIA nor could it contain "quality improvement information" - (2) The Hill Report was prepared for a purpose other than litigation and thus did not fall within the ambit of rule 31.06(3) - In addition, there was no evidence that there was contemplated or pending litigation when the report was prepared - (3) "[O]n the facts of this case, the Hill Report failed to meet the first of the Wigmore criteria [for 'case-by-case privilege'], that is the communications did not originate in a confidence that they would not be disclosed. Confidentiality, after all, is a precondition of privilege." - See paragraphs 12 to 27.

Hospitals - Topic 468

Operation - Records - Production of investigative reports (incl. committee minutes) - [See Evidence - Topic 4155 ].

Practice - Topic 4576

Discovery - What documents must be produced - Privileged documents - Doctor and hospital records - [See Evidence - Topic 4155 ].

Practice - Topic 4606

Discovery - Production of documents by nonparties - Doctor and hospital records - [See Evidence - Topic 4155 ].

Practice - Topic 8327.6

Costs - Appeals - Costs of appeal - Party and party or partial indemnity basis - The plaintiffs (the Carter Family) asserted Carter died as a result of the negligence of the defendant Doctor and Hospital - The Hospital contacted a physician to review the circumstances surrounding Carter's death - The plaintiffs moved for the production of the physician's report - The motion judge found that the report was protected from disclosure by virtue of s. 29 of the Hospital Services Act - The plaintiffs were successful on the appeal and sought costs of $200 against each defendant - The Prince Edward Island Court of Appeal held that $400 did not represent a fair and reasonable amount - "When considering the factors mandated by Rule 57 and the Court of Appeal Practice Direction 11, it is often helpful to reflect on the amounts, attendances and bill of costs of the unsuccessful parties ... . Considering these circumstances, and the fact that the Doctor's partial indemnity legal fees would be approximately $3,254 and the Hospital's $3,880, a fair and reasonable amount for the respondents to pay to the successful party for legal fees would be $3,500 plus taxes and reasonable disbursements." - See paragraphs 28 to 34.

Words and Phrases

Quality improvement activity - The Prince Edward Island Court of Appeal discussed what constituted "quality improvement activity" as used in s. 26(e) of the Health Services Act, R.S.P.E.I. 1988, c. H-1.6 - See paragraphs 12 to 14.

Cases Noticed:

Aluma Systems Canada Inc. v. Strait Crossing Inc. et al. (2002), 211 Nfld. & P.E.I.R. 256; 633 A.P.R. 256; 2002 PESCTD 19, refd to. [para. 3].

Bank of Montreal v. 100875 P.E.I. Inc. (2014), 352 Nfld. & P.E.I.R. 231; 1097 A.P.R. 231; 2014 PECA 12, refd to. [para. 9].

R. v. Gruenke - see R. v. Fosty and Gruenke.

R. v. Fosty and Gruenke, [1991] 3 S.C.R. 263; 130 N.R. 161; 75 Man.R.(2d) 112; 6 W.A.C. 112, refd to. [para. 18].

Slavutych v. Board of Governors of the University of Alberta, [1976] 1 S.C.R. 254; 3 N.R. 587, appld. [para. 19].

Steep v. Scott, 2002 CanLII 53248; 2002 ONSC 53248, refd to. [para. 20].

Redman et al. v. Hospital for Sick Children et al., [2010] O.T.C. Uned. 3769; 2010 ONSC 3769 (Master), refd to. [para. 20].

British Columbia (Attorney General) v. Messier et al. (1984), 8 D.L.R.(4th) 306; 1984 BCSC 858, refd to. [para. 20].

Finley v. University Hospitals Board, Sugarman, McLean and Gormley (1986), 53 Sask.R. 124 (Q.B.), refd to. [para. 20].

Campbell Estate et al. v. Gardiner et al. 2001), 203 Nfld. & P.E.I.R. 255; 610 A.P.R. 255; 2001 PESCTD 62, refd to. [para. 20].

Brown v. Capital District Health Authority et al. (2006), 249 N.S.R.(2d) 240; 792 A.P.R. 240; 2006 NSSC 348, refd to. [para. 23].

Griffin v. Summerside (City) et al. (2010), 299 Nfld. & P.E.I.R. 119; 926 A.P.R. 119; 2010 PECA 15, refd to. [para. 30].

Oliver v. Severance (2007), 272 Nfld. & P.E.I.R. 170; 830 A.P.R. 170; 2007 PESCAD 21, refd to. [para. 31].

Clark v. Biggar (1993), 112 Nfld. & P.E.I.R. 330; 350 A.P.R. 330 (P.E.I.T.D.), refd to. [para. 31].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 32].

Boucher et al. v. Public Accountants Council (Ont.) et al. (2004), 188 O.A.C. 201; 2004 ONCA 14579, refd to. [para. 33].

Statutes Noticed:

Health Services Act, R.S.P.E.I. 1988, c. H-1.6, sect. 26, sect. 27, sect. 29 [para. 6].

Rules of Court (P.E.I.), rule 30.02 [para. 3]; rule 31.06(3) [paras. 5, 15 et seq.].

Authors and Works Noticed:

Sopinka, Lederman and Bryant, The Law of Evidence in Canada (4th Ed. 2014), p. 988 [para. 5].

Wigmore, John Henry, Wigmore on Evidence (1961), para. 2285 [para. 19].

Counsel:

Joshua J. Santimaw and Geoffrey J. Franklin, for the appellants;

James W. Gormley, Q.C., for the respondents, Dr. Barry Fleming, Dr. Ayodeji Harris-Eze and Dr. John Goodwin;

Mary Lynn Kane, Q.C., for the respondent the Government of P.E.I., as operator of the Q.E.H.

This appeal was heard at Charlottetown, P.E.I., on April 22, 2015, before Jenkins, C.J.P.E.I., Murphy and Mitchell, JJ.A., of the Prince Edward Island Court of Appeal. In reasons written by Mitchell, J.A., the Court delivered the following judgment, dated June 11, 2015.