Popowich v. Saskatchewan et al., (1999) 177 Sask.R. 226 (CA)

• Judge: Vancise, Wakeling and Jackson, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: November 16, 1998
• Jurisdiction: Saskatchewan
• Citations: (1999), 177 Sask.R. 226 (CA)

Popowich v. Sask. (1999), 177 Sask.R. 226 (CA);

    199 W.A.C. 226

MLB headnote and full text

Temp. Cite: [1999] Sask.R. TBEd. MY.061

Saskatoon District Health Board (appellant/respondent) v. Claudia Bryden (respondent/applicant) v. John Popowich (plaintiff) 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)

(No. 2972)

Indexed As: Popowich v. Saskatchewan et al.

Saskatchewan Court of Appeal

Vancise, Wakeling and Jackson, JJ.A.

April 27, 1999.

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, in a decision reported 167 Sask.R. 41, granted the application but imposed con­ditions to protect the confidentiality of the records. The Board appealed.

The Saskatchewan Court of Appeal dis­missed the appeal.

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, records, opinions and reports - 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, to dis­close certain medical records relating to children in a 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 trial judge granted the applica­tion, but imposed con­ditions to protect the confi­dentiality of the records - The Saskatchewan Court of Appeal affirmed the decision.

Practice - Topic 4575

Discovery - What documents must be produced - Privilege - General - The Saskatchewan Court of Appeal reiterated the criteria set out in Slavutch v. Univer­sity of Alberta (S.C.C.) for determining privilege and the protection of con­fiden­tiality of communications - See para­graph 5.

Practice - Topic 4576

Discovery - What documents must be produced - Privileged documents - Doctor and hospital records, etc. - [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:

Slavutch v. University of Alberta, [1976] 1 S.C.R. 254; 3 N.R. 587; 55 D.L.R.(3d) 224, refd to. [para. 5, footnote 1].

Slavutych - see Slavutch.

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

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. [para. 6].

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. 6].

C ounsel:

Evert Van Olst, for the appellant, the Saskatoon District Health Board;

Brian A. Beresh, for the respondent Bryd­en;

R. Morris, for the respondents, Mc­Gil­livray and Johnston;

B. Hornsberger, Q.C., for the Government of Saskatchewan et al.;

G. Whalen, for the children.

This appeal was heard on November 16, 1998, before Vancise, Wakeling and Jack­son, JJ.A., of the Saskatchewan Court of Appeal. On April 27, 1999, Vancise, J.A., delivered the following judgment for the court.