Popowich v. Saskatchewan et al., (1995) 135 Sask.R. 122 (QB)

• Judge: Geatros, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: September 11, 1995
• Jurisdiction: Saskatchewan
• Citations: (1995), 135 Sask.R. 122 (QB)

Popowich v. Sask. (1995), 135 Sask.R. 122 (QB)

MLB headnote and full text

John Popowich (plaintiff/defendant by counterclaim/applicant) v. The Government of Saskatchewan, The Attorney General for Saskatchewan, C. Richard Quinney, Leslie Sullivan, Bruce Bauer, Martensville Board of Police Commissioners, Claudia Bryden, Wayne McGillivray, Michael Johnston, Saskatoon Board of Police Commissioners, Owen Maguire, Theodore Johnson, Roy Fleming and Rodney Moor (defendants) and Claudia Bryden (plaintiff by counterclaim/respondent)

(1994 Q.B. No. 2815)

Indexed As: Popowich v. Saskatchewan et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Geatros, J.

September 11, 1995.

Summary:

An accused was charged with eight indic­table offences involving the sexual abuse of children. During the course of the trial, the Crown entered a stay of proceedings. The accused submitted that there had been a faulty investigation. The accused sued the province and others for malicious prosecu­tion, negligence, conspiracy and a breach of Charter rights. The accused applied for disclosure of the records relating to the mental health of one of the defendants (a peace officer) in the civil action.

The Saskatchewan Court of Queen's Bench granted the application. The court also imposed conditions to protect the confiden­tiality of the records. In a subsequent ad­dendum to the decision, the court stated that the decision was procedural, not substantive in nature, and did not create an issue estoppel or establish res judicata so as to deny any party from seeking a similar kind of discovery of documents in the future.

Note: for related decisions in this matter see 127 Sask.R. 94; 132 Sask.R. 48 and 133 Sask.R. 27.

Estoppel - Topic 381

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - In civil proceedings - Popowich was charged with sexual offences - The charges were stayed at trial - Popowich sued the province as well as persons involved in the investigation (including Bryden) - Popowich applied for disclosure of Bryden's mental health records - The Saskatchewan Court of Queen's Bench ordered disclosure of Bryden's records - In an addendum to the decision, the court noted that the decision involved procedural issues, not substantive ones, and did "not create an issue estoppel or establish res judicata so as to deny any party from seeking a similar kind of discovery of documents in the future" - See paragraph 32.

Estoppel - Topic 382

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - In interlocutory proceedings - [See Estoppel - Topic 381 ].

Medicine - Topic 3090

Relation with patient - Charts and records - Confidentiality - General - An accused was charged with sexual offences against children - The charges were stayed at trial - The accused sued the province as well as persons involved in the investigation for malicious prosecution, negligence, etc. - The accused applied for disclosure of the mental health records of one of the inves­tigating peace officers - The accused submitted that the officer's mental illness was not controlled by medication and that the officer and her children had a potential history of sexual abuse - The accused submitted that those factors influenced the officer's investigation - The Saskatchewan Court of Queen's Bench ordered disclosure of the records - However, the court also imposed conditions to protect the con­fi­dentiality of the records.

Practice - Topic 3687

Evidence - Affidavits - Use of - Cross-examination of deponent - An accused was charged with sexual offences against children - The charges were stayed at trial - The accused sued the province as well as the investigators for malicious prosecu­tion, negligence, etc. - The accused applied for disclosure of the mental health records of one of the investigating peace officers - The accused's application was supported by a doctor's affidavit - At the hearing, the officer applied to cross-ex­amine the doctor on his affidavit - The Saskatchewan Court of Queen's Bench declined to allow cross-examination - The court held that the affidavit concerned the relevance of the records and that was an issue for trial not discovery - See para­graphs 8 to 13.

Practice - Topic 4563

Discovery - Production and inspection of documents - General - Confidentiality orders - [See Medicine - Topic 3090 ].

Practice - Topic 4564

Discovery - Production and inspection of documents - General - Order restraining distribution of documents produced - [See Medicine - Topic 3090 ].

Practice - Topic 4576

Discovery - What documents must be produced - Privileged documents - Doctor and hospital records - [See Medicine - Topic 3090 ].

Practice - Topic 4606

Discovery - Production of documents by nonparties - Doctor and hospital records - [See Medicine - Topic 3090 ].

Cases Noticed:

Bank of Nova Scotia v. R. (1983), 24 Sask.R. 312 (Q.B.), consd. [para. 10].

Steier et al. v. University Hospital Board et al., [1988] 4 W.W.R. 303; 67 Sask.R. 81 (C.A.), refd to. [para. 12].

Cominco Ltd. v. Phillips Cables Ltd. et al., [1987] 3 W.W.R. 562; 54 Sask.R. 134 (C.A.), refd to. [para. 12].

Bank of Montreal v. 3D Properties Inc. et al. (No. 3) (1993), 110 Sask.R. 302 (Q.B.), consd. [para. 15].

Compagnie Financière du Pacifique v. Peruvian Guano Co. (1882), 11 Q.B.D. 55 (C.A.), consd. [para. 16].

Zerr v. Rahn and Rahn (1987), 63 Sask.R. 74 (Q.B.), consd. [para. 19].

Homestake Mining Co. v. Texas Gulf Potash Co. (1976), 2 C.P.C. 222 (Sask. Q.B.), refd to. [para. 19].

Rysyk v. Booth Fisheries Canadian Co. (1970), 14 D.L.R.(3d) 539 (Ont. C.A.), consd. [para. 23].

Laxton Holdings Ltd. et al. v. Lloyd's of London, Non-Marine Underwriters et al., [1987] 3 W.W.R. 570; 56 Sask.R. 152 (C.A.), consd. [para. 24].

Laxton Holdings Ltd. v. Madill - see Laxton Holdings Ltd. et al. v. Lloyd's of London, Non-Marine Underwriters et al.

Anderson v. Anderson (1979), 12 R.F.L.(2d) 353 (Ont. H.C.), consd. [para. 24].

Halstead v. Anderson et al. (1993), 115 Sask.R. 257 (Q.B.), refd to. [para. 24].

Kyuquot Logging Ltd. v. British Columbia Forest Products Ltd., [1986] 5 W.W.R. 481 (B.C.C.A.), consd. [para. 24].

Riddick v. Thames Board Mills, [1977] 3 All E.R. 677 (C.A.), refd to. [para. 26].

A.M. v. Ryan (1994), 51 B.C.A.C. 135; 84 W.A.C. 135; 119 D.L.R.(4th) 19 (C.A.), appld. [para. 27].

Statutes Noticed:

Rules of Court (Sask.), Queen's Bench Rules, rule 215 [paras. 1, 6]; rule 317(1) [para. 9].

Counsel:

K.M. Prisciak, for the applicant, John Popowich;

B. Beresh, for the defendant, Claudia Bryden;

B.H. Rossmann, for the Saskatoon Board of Police Commissioners;

R.B. Morris, for the Martensville Board of Police Commissioners;

H.R. Kloppenburg, Q.C., for Rodney Moor.

This case was heard before Geatros, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on September 11, 1995, and the following addendum on Sep­tember 18, 1995.