A.M. v. Ryan, (1997) 85 B.C.A.C. 81 (SCC)

• Judge: La Forest, L'Heureux-Dubé, Sopinka, Cory, McLachlin, Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 06, 1997
• Jurisdiction: Canada (Federal)
• Citations: (1997), 85 B.C.A.C. 81 (SCC)

A.M. v. Ryan (1997), 85 B.C.A.C. 81 (SCC);

    138 W.A.C. 81

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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A.M. (appellant) v. Clive Ryan and Dr. Kathleen Parfitt (respondents)

(24612)

Indexed As: A.M. v. Ryan

Supreme Court of Canada

La Forest, L'Heureux-Dubé, Sopinka, Cory, McLachlin, Iacobucci and Major, JJ.

February 6, 1997.

Summary:

The plaintiff patient sued the defendant psychiatrist for damages for sexual assault, breach of fiduciary duty and breach of pro­fessional duty. The plaintiff received psy­chiatric treatment from Parfitt, another psy­chiatrist, for the problems allegedly caused by the defendant's actions. The defendant sought production of Parfitt's clinical records relating to the treatment and services ren­dered to the patient. Parfitt claimed privi­lege. A Master ordered production of the documents. Parfitt appealed.

The British Columbia Supreme Court, in a judgment reported 81 B.C.L.R.(2d) 180, dismissed the appeal. Parfitt appealed.

The British Columbia Court of Appeal, in a judgment reported 51 B.C.A.C. 135; 84 W.A.C. 135, allowed the appeal in part. The records were not privileged, since a doctor could assert privilege only if disclosure would harm the doctor (not proved here). The court ordered disclosure of Parfitt's reporting letters and notes recording dis­cussions between the plaintiff and Parfitt. The court did not order production of Parfitt's personal notes used for diagnostic purposes and imposed conditions on dis­closure (e.g., who could see and copy the information). The plaintiff appealed.

The Supreme Court of Canada, L'Heureux-Dubé, J., dissenting, dismissed the appeal. First, the plaintiff retained the right to claim privilege and the appeal was to be decided solely on the issue of privilege (not disclosure under Supreme Court Rule 26(11)). The court affirmed the "partial privilege" result achieved by the Court of Appeal and the conditions limiting who could see or copy the information.

Medicine - Topic 3090

Relation with patient - Charts and records - Confidentiality - General - [See second Practice - Topic 4574.9 and second Practice - Topic 4606 ].

Practice - Topic 4574.9

Discovery - What documents must be produced - Privilege - Partial privilege - The Supreme Court of Canada dis­tinguished between absolute or blanket privilege and partial privilege - The court stated that "while the traditional common law categories conceived privilege as an absolute, all-or-nothing proposition, more recent jurisprudence recognizes the ap­propriateness in many situations of partial privilege. The degree of protection con­ferred by the privilege may be absolute or partial, depending on what is required to strike the proper balance between the interest in protecting the communication from disclosure and the interest in proper disposition of the litigation. Partial privi­lege may signify that only some of the documents in a given class must be pro­duced. Documents should be considered individually or by sub-groups on a 'case-by-case' basis." - See paragraph 18.

Practice - Topic 4574.9

Discovery - What documents must be produced - Privilege - Partial privilege - The Supreme Court of Canada stated that "the need to get to the truth and avoid injustice does not automatically negate the possibility of protection from full dis­closure. In some cases, the court may well decide that the truth permits of nothing less than full production. This said, I would venture to say that an order for partial privilege will more often be appro­priate in civil cases where, as here, the privacy interest is compelling. Disclosure of a limited number of documents, editing by the court to remove non-essential material, and the imposition of conditions on who may see and copy the documents are techniques which may be used to ensure the highest degree of confidentiality and the least damage to the protected relationship, while guarding against the injustice of cloaking the truth. ... where justice requires that communications be disclosed, the court should consider quali­fying the disclosure by imposing limits aimed at permitting the opponent to have the access justice requires while preserving the confidential nature of the documents to the greatest degree possible." - See para­graphs 33, 37.

Practice - Topic 4576

Discovery - What documents must be produced - Privileged documents - Doctor and hospital records - [See second Prac­tice - Topic 4606 ].

Practice - Topic 4606

Discovery - Production of documents by nonparties - Doctor and hospital records - A patient sexually assaulted by her former psychiatrist sued for damages - The patient received psychiatric treatment from Parfitt, another psychiatrist, for the prob­lems allegedly caused by the defendant - The defendant successfully sought produc­tion of Parfitt's clinical records in her possession relating to the treatment and services rendered to the patient - The patient remained silent, filing no affidavit and not adducing any evidence - The doctor claimed privilege - The British Columbia Court of Appeal held that the privilege must be claimed by the patient - The Supreme Court of Canada held that the patient's alleged failure to assert privi­lege before the Master who ordered pro­duction did not deprive her of her right to now claim privilege - The patient never waived privilege - The patient appeared through counsel and supported Parfitt's privilege claim - The court stated that "far from waiving privilege, the [patient] has asserted it throughout the proceedings" - See paragraph 14.

Practice - Topic 4606

Discovery - Production of documents by nonparties - Doctor and hospital records - A patient sexually assaulted by the de­fendant psychiatrist sued for damages - The patient received psychiatric treatment from Parfitt, another psychiatrist, for the alleged resulting problems - The de­fendant sought production of all records, notes, etc., involving treatment, claiming the information was relevant as to whether the sexual assault was causative of all the patient's problems - The Supreme Court of Canada held that the patient-psychia­trist communications were privileged where they were made in confidence, confi­den­tiality was essential to the re­lationship and the relationship was one which should be sedulously fostered - At issue was whether the interests served by protecting the com­munications from dis­closure outweighed the interest of pursuing the truth - The court stated that "oc­casional injustice" was not an acceptable price for privilege - Partial privilege was appropriate - All records (except personal notes for diag­nostic purposes) were to be disclosed, subject to conditions as to who may see and copy the documents (i.e., limitations to ensure highest degree of confidentiality and least damage to the protected relation­ship) - See paragraphs 19 to 42.

Cases Noticed:

Trammel v. United States (1980), 445 U.S. 40, refd to. [para. 19].

Slavutych v. University of Alberta, [1976] 1 S.C.R. 254; 3 N.R. 587, refd to. [para. 20].

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; 67 C.C.C.(3d) 289, refd to. [para. 20].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83; 33 D.L.R.(4th) 174; 38 C.C.L.T. 184; 25 C.R.R. 321; [1987] 1 W.W.R. 577; 87 C.L.L.C. 14,002, refd to. [para. 21].

Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 21].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 21].

Jaffee v. Redmond (1996), 116 S.Ct. 1923, refd to. [para. 32].

Jaffee v. Redmond (1995), 51 F.3d 1346 (C.A.), refd to. [para. 34].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 36].

L.L.A. v. Beharriell, [1995] 4 S.C.R. 536; 190 N.R. 329; 88 O.A.C. 241, refd to. [para. 49].

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81; 63 C.C.C.(3d) 481, refd to. [para. 62].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1; 45 C.C.C.(3d) 57; [1989] 1 W.W.R. 97; 66 C.R.(3d) 97, refd to. [para. 62].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183; 59 D.L.R.(4th) 416; 26 C.C.E.L. 85; 89 C.L.L.C. 14,031; 40 C.R.R. 100, refd to. [para. 62].

Baron et al. v. Minister of National Reve­nue et al., [1993] 1 S.C.R. 416; 146 N.R. 270, refd to. [para. 62].

R. v. Salituro, [1991] 3 S.C.R. 654; 131 N.R. 161; 50 O.A.C. 125; 68 C.C.C.(3d) 289, refd to. [para. 63].

R. v. Park (D.G.), [1995] 2 S.C.R. 836; 183 N.R. 81; 169 A.R. 241; 97 W.A.C. 241, refd to. [para. 63].

Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513; 84 N.R. 86; 48 D.L.R.(4th) 193; 88 C.L.L.C. 14,011, refd to. [para. 63].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 64].

Dufault v. Stevens (1978), 6 B.C.L.R. 199 (C.A.), refd to. [para. 73].

Métropolitaine (La), compagnie d'as­surance-vie v. Frenette, Hôpital Jean-Talon et un autre, [1992] 1 S.C.R. 647; 134 N.R. 169; 46 Q.A.C. 161, refd to. [para. 73].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, refd to. [para. 81].

Statutes Noticed:

Rules of Court (B.C.), Supreme Court Rules, rule 26(11) [para. 13].

Authors and Works Noticed:

Choate, Clara E., Discovery in Canada (2nd Ed. 1993)(Looseleaf), pp. 1-1 to 1-6 [para. 68].

McLachlin, Beverley M., and Taylor, James P., British Columbia Practice (2nd Ed. 1996)(Looseleaf), vol. 1, p. 26-1 [para. 66].

Wigmore, John Henry, Evidence in Trials at Common Law (3rd Ed. McNaughton Rev. 1961), vol. 8, §2285 [para. 20].

Counsel:

Brian J. Wallace, Q.C., and Carolyn McCool, for the appellant;

Christopher E. Hinkson, Q.C., and William S. Clark, for the respondent, Ryan.

Solicitors of Record:

British Columbia Public Interest Advocacy Centre, Vancouver, B.C., for the appel­lant;

Harper Grey Easton, Vancouver, B.C., for the respondent, Ryan;

Alexander, Holburn, Beaudin & Lang, Vancouver, B.C., for the respondent, Parfitt.

This appeal was heard on October 2, 1996, before La Forest, L'Heureux-Dubé, Sopinka, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.

On February 6, 1997, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

McLachlin, J. (La Forest, Sopinka, Cory, Iacobucci and Major, JJ., concurring) - see paragraphs 1 to 42;

L'Heureux-Dubé, J., dissenting - see paragraphs 43 to 108.