N.M. v. Drew Estate, (2003) 330 A.R. 233 (CA)

• Judge: Côté, O'Leary and Fruman, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 05, 2003
• Citations: (2003), 330 A.R. 233 (CA);2003 ABCA 231

N.M. v. Drew Estate (2003), 330 A.R. 233 (CA);

 299 W.A.C. 233

MLB headnote and full text

Temp. Cite: [2003] A.R. TBEd. AU.042

N.M. (respondent/plaintiff) v. The Public Trustee for the Province of Alberta as Administrator Ad Litem for Sheldon Roy Drew, deceased (appellant/defendant)

(0201-0279-AC; 2003 ABCA 231)

Indexed As: N.M. v. Drew Estate

Alberta Court of Appeal

Côté, O'Leary and Fruman, JJ.A.

July 25, 2003.

Summary:

The plaintiff in a personal injury action decided not to call his treating physicians. The defendant sought to interview the physicians. The plaintiff consented on the condition that his counsel be present during the interviews. The defendant's counsel applied for an order declaring that she could interview the physicians without the plaintiff or his counsel present. A chambers judge directed that the physicians could only be interviewed in the presence of the plaintiff's counsel. The defendant appealed.

The Alberta Court of Appeal, O'Leary, J.A., dissenting, dismissed the appeal.

Evidence - Topic 4007

Witnesses - General - Pretrial interviews - General - The plaintiff in a personal injury action decided not to call his treating physicians - The defendant sought to interview the physicians - The plaintiff consented on the condition that his counsel be present during the interviews - The Alberta Court of Appeal affirmed that the plaintiff was entitled to have his counsel attend any interviews - The court stated, inter alia, that there was no principled reason to exclude the plaintiff's counsel or to compel an interview with him absent - However, there were many legal bases for having him present - The analysis favouring a secret interview ignored the interests of others, especially the physician, and the public's interest in protecting physician-patient confidentiality - See paragraphs 1 to 101.

Evidence - Topic 4007

Witnesses - General - Pretrial interviews - General - The plaintiff in a personal injury action decided not to call his treating physicians - The defendant sought to interview the physicians - The plaintiff consented on the condition that his counsel be present during the interviews - The Alberta Court of Appeal stated that "A physician need not grant an interview; he or she can refuse, and cannot be compelled to take part. The doctor is the fiduciary of the plaintiff (patient) ... So the physician may have a duty to disclose medical information to the patient or his lawyer, on request. But the physician has no duty to disclose the information to anyone else." - See paragraph 12.

Evidence - Topic 4300

Witnesses - Privilege - Doctor-patient communications - General - [See both Evidence - Topic 4007 and first Medicine - Topic 3090 ].

Medicine - Topic 3090

Relation with patient - Charts, records, opinions and reports - Confidentiality - General - The Alberta Court of Appeal stated that a court could override a patient's confidentiality to prevent unfairness - See paragraphs 31 and 87.

Medicine - Topic 3090

Relation with patient - Charts, records, opinions and reports - Confidentiality - General - [See both Evidence - Topic 4007 ].

Medicine - Topic 3092

Relation with patient - Charts, records, opinions and reports - Confidentiality - Waiver of - The Alberta Court of Appeal, per Côté, J.A. (Fruman, J.A., concurring), discussed "implied waiver" of confidentiality respecting health information - See paragraphs 22 to 30 - O'Leary, J.A., in dissent, held that an individual impliedly waived the right to doctor-patient confidentiality with respect to relevant information by commencing an action in which he or she puts his or her health in issue - See paragraphs 127 to 138.

Cases Noticed:

McInerney v. MacDonald, [1992] 2 S.C.R. 138; 137 N.R. 35; 126 N.B.R.(2d) 271; 317 A.P.R. 271, refd to. [paras. 12, 119].

A.M. v. Ryan, [1997] 1 S.C.R. 157; 207 N.R. 81; 85 B.C.A.C. 81; 138 W.A.C. 81, refd to. [paras. 15, 120].

Bourque v. LeBlanc (2002), 253 N.B.R.(2d) 231; 660 A.P.R. 231; 26 C.P.C.(5th) 1 (C.A.), refd to. [para. 17].

Cook v. Washuta (1985), 11 O.A.C. 171; 52 O.R.(2d) 289 (C.A.), leave to appeal denied (1986), 68 N.R. 400; 18 O.A.C. 80 (S.C.C.), refd to. [paras. 18, 133].

Cook v. Ip - see Cook v. Washuta.

Hay et al. v. University of Alberta Hospital and Sterns et al. (1990), 105 A.R. 276; 40 C.P.C.(2d) 176 (Q.B.), refd to. [paras. 18, 123].

Swirski v. Hachey, [1996] 5 W.W.R. 214; 16 B.C.L.R.(3d) 281 (S.C.), refd to. [para. 18].

Sugarman v. Findlay et al. (1997), 214 A.R. 118; 26 C.P.C.(4th) 379 (Q.B.), refd to. [paras. 18, 131].

Sugarman v. Radomsky - see Sugarman v. Findlay et al.

Phillip v. Whitecourt General Hospital et al. (2001), 290 A.R. 228 (Q.B.), refd to. [paras. 18, 131].

Stoodley et al. v. Ferguson, [2001] A.R. Uned. 477; [2001] 8 W.W.R. 329; 93 Alta. L.R.(3d) 78 (Q.B.), refd to. [paras. 21, 131].

Pozdzik v. Wilson et al. (2002), 316 A.R. 314 (Q.B.), refd to. [para. 21].

St. Louis v. Feleki (1990), 75 D.L.R.(4th) 758 (Ont. Gen. Div.), appeal quashed (1993), 107 D.L.R.(4th) 767 (Ont. Div. Ct.), refd to. [para. 21].

Morin v. Tessier, [1994] O.J. No. 361 (Gen. Div.), refd to. [para. 21].

Wells v. Paramsothy et al. (1996), 98 O.A.C. 233; 32 O.R.(3d) 452 (Div. Ct.), leave to appeal denied (1997), 32 O.R.(3d) 452 (C.A.), refd to. [para. 21].

Whitehouse v. Jordan, [1981] 1 W.L.R. 246; [1981] 1 All E.R. 267 (H.L.), refd to. [para. 76].

Strass v. Goldsack, [1975] 6 W.W.R. 155; 58 D.L.R.(3d) 397 (Alta. C.A.), refd to. [para. 89].

Ottawa-Carleton (Regional Municipality) v. Consumers' Gas Co. et al. (1990), 41 O.A.C. 65; 74 O.R.(2d) 637 (Div. Ct.), refd to. [paras. 89, 145].

Slavutych v. University of Alberta, [1976] 1 S.C.R. 254; 3 N.R. 587, refd to. [para. 120].

Slavutych v. Baker - see Slavutych v. University of Alberta.

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. 126].

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

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. 133].

Frenette v. Metropolitan Life Insurance Co. - see Métropolitaine (La), compagnie d'assurance-vie v. Frenette, Hôpital Jean-Talon et un autre.

Authors and Works Noticed:

Carter, Rose, Interaction Between Lawyers and Physicians in Litigation (1995), Canadian Bar Association - Alberta Branch, Mid-Winter Meeting Papers 144, p. 156 [para. 148].

Law Society of Alberta, Code of Professional Conduct, c. 7, Rule 1, Commentary G.1 [para. 147]; c. 10, Rule 22, Commentary (d) [para. 104].

Sharpe, Robert J., Claiming Privilege in the Discovery Process, in Law in Transition: Evidence (1984), L.S.U.C. Special Lectures 163, pp. 165, 166 [para. 145].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), pp. 3 to 5 [para. 122]; 804 [para. 127]; para. 14.75 [para. 144].

Wigmore, John Henry, Evidence in Trials at Common Law (McNaughton Rev. 1961), vol. 8, paras. 2285 [para. 120]; 2380a [para. 126].

Counsel:

T.J. Coates and J.R. McJannet, for the appellant;

B.W. Conway, for the respondent.

This appeal was heard on February 5, 2003, by Côté, O'Leary and Fruman, JJ.A., of the Alberta Court of Appeal. The decision of the Court of Appeal was delivered on July 25, 2003, when the following opinions were filed:

Côté, J.A. (Fruman, J.A., concurring) - see paragraphs 1 to 101;

O'Leary, J.A., dissenting - see paragraphs 102 to 155.