Popowich v. Saskatchewan et al., (1998) 167 Sask.R. 41 (QB)

• Judge: Barclay, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: April 13, 1998
• Jurisdiction: Saskatchewan
• Citations: (1998), 167 Sask.R. 41 (QB)

Popowich v. Sask. (1998), 167 Sask.R. 41 (QB)

MLB headnote and full text

Temp. Cite: [1998] Sask.R. TBEd. MY.036

John Popowich (plaintiff) v. The Government of Saskatchewan, The Attorney General for Saskatchewan, 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) v. Saskatoon District Health Board

(1994 Q.B. No. 2815)

Indexed As: Popowich v. Saskatchewan et al.

Saskatchewan Court of Queen's Bench

Judicial District of Saskatoon

Barclay, J.

April 13, 1998.

Summary:

Popowich, a police officer, 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. Popowich submitted that there had been a faulty investigation. Popowich sued the province and others (including Bryden) for malicious prosecution, neg­li­gence, conspiracy and breach of Charter rights. Bryden sought an order compelling the Saskatoon District Health Board, which operated the MacNeill Clinic in Saskatoon, to disclose certain medical records relating to children in the Clinic alleged to have been sexually abused by Popowich. Bryden asserted that she at all times acted in good faith in the discharge of her duties as a police officer and that discovery of these documents would assist her in establishing that she had reasonable and probable grounds to cause the charges to be laid.

The Saskatchewan Court of Queen's Bench granted the application but imposed con­ditions to protect the confidentiality of the records.

Note: for prior decisions in this matter see 124 Sask.R. 56; 127 Sask.R. 94; 131 Sask.R. 217; 132 Sask.R. 48; 133 Sask.R. 27; 134 Sask.R. 249; 135 Sask.R. 122; 135 Sask.R. 133, and 144 Sask.R. 166.

Medicine - Topic 3090

Relation with patient - Charts and records - Confidentiality - General - Popowich, a police officer, was charged with sexual offences against children - The charges were stayed at trial - Popowich claimed severe emotional distress and sued the province as well as persons involved in the investigation (including Bryden) for malicious prosecution, negligence, etc. - Bryden sought an order compelling the Saskatoon District Health Board, which operated the MacNeill Clinic, to disclose certain medical records relating to children in the Clinic alleged to have been sexually abused by Popowich - Bryden asserted that she at all times acted in good faith in the discharge of her duties as a police officer and that discovery of these docu­ments would assist her in establishing that she had reasonable and probable grounds to cause the charges to be laid - The Saskatchewan Court of Queen's Bench granted the application, but imposed con­ditions to protect the confidentiality of the records.

Medicine - Topic 3092

Relation with patient - Charts and records - Confidentiality - Waiver of - The Saskatchewan Court of Queen's Bench noted that privilege of medical information was waived where the holder of the priv­ilege makes a voluntary disclosure or consents to disclosure of any material part of a communication - See paragraph 15.

Practice - Topic 4575

Discovery - What documents must be produced - Privilege - General - The Saskatchewan Court of Queen's Bench reviewed the criteria for the establishment of privilege and the protection of con­fidentiality of communications - See para­graphs 19 to 25.

Practice - Topic 4576

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

Practice - Topic 4604

Discovery - Production of documents by nonparties - When ordered - [See Med­icine - Topic 3090 ].

Practice - Topic 4606

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

Cases Noticed:

Popowich v. Saskatchewan et al. (1996), 144 Sask.R. 166; 124 W.A.C. 166 (C.A.), refd to. [para. 11].

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, consd. [para. 14].

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. 14].

Wellman v. General Craine Industries Ltd. (1986), 20 O.A.C. 384 (C.A.), refd to. [para. 17].

Slavutch v. University of Alberta, [1976] 1 S.C.R. 254; 3 N.R. 587, 55 D.L.R.(3d) 224, refd to. [para. 19].

Slavutych - see Slavutch.

Slavutch v. Baker et al. - see Slavutch v. University of Alberta.

Statutes Noticed:

Mental Health Services Act, S.S. 1984-85-86, c. M-13.1, sect. 38(1), sect. 38(2), sect. 38(3), sect. 38(4) [para. 25].

Mental Health Services Regulations (Sask.), R.R.S. c. M-13, Reg. 1, sect. 16(1), sect. 16(2), sect. 16(3), sect. 16(4) [para. 25].

Authors and Works Noticed:

Sopinka and Lederman, The Law of Ev­idence in Canada (1992), pp. 665 [para. 16]; 669 [para. 17].

Wigmore, John Henry, Evidence in Trials at Common Law (3rd Ed. McNaughton Rev. 1961), para. 2285 [para. 19].

Counsel:

Geoffrey D. Dufour, for Popowich;

Donald A. McKillop, Q.C., for the Gov­ernment of Saskatchewan;

Evert Van Olst, for the Saskatoon District Health Board;

Gregory G. Walen, for the Children;

Henry R. Kloppenburg, Q.C., for Rodney Moor;

Richard B. Morris, for Martensville Board of Police Commissioners, Wayne Mc­Gillivray and Michael Johnston;

Brian A. Beresh, for Claudia Bryden.

This application was heard before Barclay, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on April 13, 1998.