Defence motion for production of un-redacted clinical notes and records of plaintiff’s treating psychologist dismissed.

In the recent case of Dupont v. Bailey decided by the Hon. Master Roger in Ottawa the plaintiff was injured in a car crash. During her treatment, she was treated by a psychologist and discussed with the psychologist a number of private issues including conversations with her lawyer and particulars of her ongoing litigation. The plaintiff believed that at all times that her conversations with her psychologist were confidential and private and could not be disclosed to anyone.

In personal injury litigation, it is not unusual for the defendant to seek a copy of all medical records including the records of any treating healthcare providers such as psychologists. The plaintiff provided the defendant with a copy of her psychologist’s file but redacted those portions that dealt with solicitor client information and which were otherwise irrelevant to the issues in the court action.

The defendant filed a motion seeking a copy of the entire file, un-redacted. The Hon. Master Roger discussed the general rule of production and the exceptions to production of documentary disclosure. In his decision, he stated that the general rule is that relevant documents must be produced in their entirety: a party may not redact portions of a relevant document only because it says those portions are not relevant. However, the Hon. Master Roger also stated that the foregoing was not the end of the analysis and the general rule is subject to certain exceptions. For instance, if portions of a relevant document are clearly not relevant and there is good reason why they should not be disclosed (such as, for example, if the information would cause significant harm to the producing party and in no way serve to resolve the issues at hand in the action) then such portions may be redacted. The party resisting full disclosure has the onus of establishing, on a balance of probabilities, that the redacted portions contain irrelevant information and that redaction is necessary. If the portions redacted from the relevant documents are relevant, such portions may be redacted if they are protected by privilege. Privilege would of course include, as applicable to the circumstances of each particular case, solicitor and client privilege, litigation privilege or common law privilege if disclosure “… would infringe the public interests deserving of protection…” As indicated in the case of McGee, sufficient to establish a common law privilege of meeting the criteria as set out in the case of Wigmore.

In this case, the Hon. Master Roger, held that the redacted portions of the psychologists clinical notes and records were irrelevant, and if produced would only embarrass and potentially prejudice the plaintiff while serving no purpose in resolving the issues in the court action.

This brief case summary is provided for information purposes only and is not legal advice.

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