Posted May 5, 2014

Personal injury tort plaintiffs have zero privacy.

Explaining that sad reality to accident victims is a major challenge. Innocent accident victims can’t understand why their entire life is thrown under a microscope simply by suing the person that they claim destroyed their life.

People want their privacy and feel that they should not have to divulge their personal information in order to obtain the fair compensation they deserve. Even when you explain that a tort insurer must know about their lives before and after the accident to evaluate the impact of the accident, accident victims still hate the idea of having to disclose and share all of their medical, employment and tax information, as well as potentially their social media information, as a prerequisite to their pursuit of justice.

With respect to medical records, in the context of a personal injury claim, the clinical notes and records of all treating health practitioners from a few years before the accident to date are producible, but what happens when your client discusses your confidential legal advice with their treatment providers, like a psychologist? Is your advice then ‘public’ and subject to production in the psychologist’s clinical notes and records?

In the case of Dupont v. Bailey et al, (2013) ONSC 1336, Master Pierre E. Roger of the Ontario Superior Court of Justice had to grapple with exactly that issue in relation to a motion by defence counsel to access redacted portions of a psychologist’s clinical notes and records.

In Dupont, the plaintiff claimed injuries arising from a motor vehicle accident including depression and trauma. The plaintiff was being treated by a psychologist and the psychologist’s clinical notes and records were requested by defence counsel.

While the vast majority of the psychologist’s clinical notes and records (over 200 pages) were produced, some 17 pages were partially redacted on the basis that the redacted information was either not relevant or privileged. The redacted information related to information and discussions associated with the plaintiff’s tort claim, namely advice from her lawyer regarding settlement and legal strategy.

The two questions for the Master were whether the redacted portions were relevant and whether they were privileged.

With respect to the issue of relevance, the Master noted that a relevant document, like the psychologist’s records, must be produced in its entirety without portions redacted on the basis of relevancy, subject only to certain exceptions.

One exception noted is where the objecting party establishes that the redacted portions are irrelevant and, if produced, would cause significant harm while at the same time not assist in resolving the issues in dispute.

Another exception is where the redacted information is relevant but is protected by any type of privilege.

Master Roger suggests that where portions are being redacted, counsel should try to resolve the issue without the need for a motion by having off the record discussions or by explaining very clearly what was redacted and why.

In the end, Master Roger reviews the redacted portions and concludes,

“…that the redacted portions are irrelevant and if produced would only embarrass and potentially prejudice the Plaintiff while serving no purpose in resolving the issues in this action.”

On that basis, Master Roger concludes that the records can be redacted. Master Roger therefore declines to address whether or not the redacted portions would have qualified as privileged.

In cases where a client shares privileged information with a treatment provider in the course of therapy, it would make good sense to allow that information to remain privileged in order to facilitate productive and effective treatment. However, without a decision about whether the legal advice, once shared with a psychologist in the course of treatment, remains privileged, the Dupont decision provides little comfort to personal injury lawyers worried that their legal advice will end up being disclosed via treatment providers to defence counsel.

View PDF version: Accident Benefit Reporter | Volume 15, Issue 1 | May 2014

Darcy Merkur is a partner at Thomson Rogers in Toronto practicing plaintiff’s personal injury litigation, including plaintiff’s motor vehicle litigation. Darcy has been certified as a specialist in Civil Litigation by the Law Society of Ontario and is the creator of the Personal Injury Damages Calculator.

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