Popowich v. Saskatchewan et al., (1996) 144 Sask.R. 166 (CA)

• Judge: Cameron, Wakeling and Sherstobitoff, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: July 19, 1996
• Jurisdiction: Saskatchewan
• Citations: (1996), 144 Sask.R. 166 (CA);1996 CanLII 5034 (BS SC);1996 CanLII 5034 (SK CA);[1996] 8 WWR 609;144 Sask R 166;6 CPC (4th) 75

Popowich v. Sask. (1996), 144 Sask.R. 166 (CA);

    124 W.A.C. 166

MLB headnote and full text

Claudia Bryden (appellant) v. John Popowich (respondent)

(File No. 2258 of 1996)

Indexed As: Popowich v. Saskatchewan et al.

Saskatchewan Court of Appeal

Cameron, Wakeling and Sherstobitoff, JJ.A.

July 19, 1996.

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 breach of Charter rights. The accused applied for disclosure of the records relating to the mental health of one of the defendants (Bry­den a police officer) in the civil action.

The Saskatchewan Court of Queen's Bench, in a decision reported 135 Sask.R. 122, granted the application. The court also imposed conditions to protect the confiden­tiality of the records. Bryden applied for disclosure of the accused's (1) physi­cal and mental health records, (2) the defence records relating to the criminal prosecution and (3) the records relat­ing to the accused's past em­ployment as well as his current efforts to obtain employment.

The Saskatchewan Court of Queen's Bench, in a decision reported 135 Sask.R. 133, granted the application in part. Bryden appealed.

The Saskatchewan Court of Appeal allowed the appeal in part.

Note: for prior decisions in this matter see 135 Sask.R. 133; 135 Sask.R. 122; 133 Sask.R. 27; 132 Sask.R. 48 and 127 Sask.R. 94.

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 applied for disclosure of Popo­wich's physical and mental health records - Bryden wanted all of Popowich's mental health records without regard to time - Popowich submitted that disclosure should be confined to documents no older than two years before the commencement of the action - The Saskatchewan Court of Appeal ordered disclosure of all relevant documents relating to Popowich's emo­tional state and mental condition without consideration to time - Records of physi­cal health had to be disclosed only if they appeared pertinent to the action - See paragraphs 28 to 41.

Practice - Topic 4573

Discovery - What documents must be produced - Documents relating to matters in issue - Employment records - 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 applied for disclosure of Popo­wich's employment records: (1) copies of his personnel file, (2) copies of all police notes or records and all other personal notes or records of Popowich, maintained between 1988 and 1996, and (3) copies of all police reports prepared by the employer city or force relating to all cases in which Popowich was involved as an investigator between 1988 and 1996 - The Saskat­chewan Court of Appeal ordered disclosure of documents in category (1) concerning Popowich's personnel file - See paragraphs 53 to 59.

Practice - Topic 4576

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

Practice - Topic 4577.1

Discovery - What documents must be produced - Privileged documents - Solici­tor's files, notes, etc. - Popowich, a police officer, was charged with sexual offences against children - The charges were stayed at trial - Popowich sued the province as well as persons involved in the investiga­tion (including Bryden) for malicious prosecution, negligence, etc. - Bryden applied for disclosure of records dealing with Popowich's defence in the criminal prosecution: (1) billing and related finan­cial records, (2) documents and memoran­da dealing with Crown disclosure, and (3) memoranda, notes and briefs of evidence prepared by Popowich's lawyer - The Saskatchewan Court of Appeal ordered full disclosure of categories 1 and 2 - Disclo­sure of documents in category 3 was sub­ject to solicitor-client privilege on a docu­ment by document basis - See paragraphs 42 to 52.

Practice - Topic 4604

Discovery - Production of documents by nonparties - When ordered - [See Medi­cine - Topic 3090 ; Prac­tice - Topic 4573 ; and Practice - Topic 4577.1 ].

Practice - Topic 4606

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

Cases Noticed:

Newberry Energy Ltd. v. Amok Ltd. (1987), 62 Sask.R. 1 (Q.B.), refd to. [para. 11].

Rockwell Machine Tool Co. v. Barrus (E.P.)(Concessionaires) Ltd., [1968] 2 All E.R. 98 (Ch. D.), consd. [para. 12].

Myers v. Elman, [1939] 4 All E.R. 484 (H.L.), consd. [para. 12].

Zerr v. Rahn and Rahn (1987), 63 Sask.R. 74 (Q.B.), refd to. [para. 17].

Cominco Ltd. v. Phillips Cables Ltd. et al., [1987] 3 W.W.R. 562; 54 Sask.R. 134 (C.A.), refd to. [para. 18].

Steier et al. v. University Hospital Board et al., [1988] 4 W.W.R. 303; 67 Sask.R. 81 (C.A.), refd to. [para. 18].

Milton Farms Ltd. et al. v. Dow Chemical Canada Inc. (1986), 52 Sask.R. 264 (Q.B.), refd to. [para. 18].

Compagnie Financière du Pacifique v. Peruvian Guano Co. (1882), 11 Q.B.D. 55 (C.A.), consd. [para. 19].

Potash Corp. of Saskatchewan Mining Ltd. v. Saskatchewan Government Insurance (1990), 83 Sask.R. 19 (Q.B.), refd to. [para. 49].

Statutes Noticed:

Rules of Court (Sask.), Queen' Bench Rules, rule 212(1), rule 212(2) [para. 5]; rule 213 [para. 13]; rule 215(1)(a), rule 215(1)(b) [para. 4].

Authors and Works Noticed:

Kloppenburg, H.R., Discovery of Docu­ments: The Solicitors Duty (Midwinter Meeting of Can. Bar. Assoc., Sask. Branch) (1989), vol. 1 [para. 11].

Counsel:

Brian A. Beresh, for the appellant;

Karen Prisciak, for the respondent.

This appeal was heard on May 17, 1996, before Cameron, Wakeling and Sherstobitoff, JJ.A., of the Saskatchewan Court of Appeal.

On July 19, 1996, Cameron, J.A., delivered the following judgment for the Court of Appeal.