By: Will Harding, Lawyer and Kate Hunter, Student-At-Law
Earlier this year, in H.C. v. SSQ Life Insurance Company Inc, 2024 ONSC 53, the Superior Court of Justice tackled the difficult balance between the principle of disclosure in the context of medical records and the public’s interest in protecting those with mental health issues, and the treatment they seek.
The dispute in this case arose out of the denial of Long Term Disability Payments (“LTD”) benefits. The Plaintiff was 55 years old and working in communications, when she applied for LTD benefits after being unable to work due to various impairments, including but not limited to, adjustment disorder and major depressive disorder. Some of her symptoms were attributed to the separation from her husband and the associated family law litigation.
The Plaintiff began a civil suit against her insurer. The Plaintiff had previously disclosed 114 pages of her psychologist’s notes and records without redaction. She had further produced 11 pages which were partially or wholly redacted. The Defendant brought a motion for an Order compelling the Plaintiff to produce the redacted and unredacted notes and records of the Plaintiff’s psychologist. The Plaintiff also brought a cross-motion seeking to anonymize the names of the parties held within the records and sought a sealing order.
The issue before the Superior Court of Justice was whether the Plaintiff was entitled to redact those portions of the psychologist’s clinical records and, if so, under what circumstances?
Defendant’s Motion: Production of Unredacted Records
At the hearing, the court was provided with a full copy of the unredacted notes for inspection pursuant to Rule 30.04(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The Court reviewed the notes and determined the redactions fell into the following three categories:
- Discussions about the settlement conferences in the family law case, including comments about the judge, the process, and the results;
- Discussions with her family law lawyer about the general status of the family law file and her “bottom line” on the family law file; and
- Discussions with the lawyer on this file regarding this litigation, including preparation for the discoveries and the post-mortem meeting after mediation and the discoveries.
The Defendant argued that Plaintiff had failed to satisfy the Wigmore criteria, primarily the 4th criteria which sets out that there is no evidence that her relationship with her psychologist would be destroyed if unredacted information is produced. The Defendant argued that the Plaintiff’s thoughts and feelings were relevant as they would reflect her state of mind and have a bearing on the LTD claim. The Plaintiff submitted that the small, redacted sections were not relevant to the action and would serve simply to embarrass and prejudice the Plaintiff.
It was established in McGee v London Life Insurance Company Limited, 2010 ONSC 1408, that generally relevant documents must be produced in their entirety and a party may not redact portions on the basis that the portions are not relevant. However, if the document is not relevant and the production would cause significant harm to the producing party or infringe public interests then the litigant may be excused from having to make that disclosure. The party resisting disclosure has the onus to show that the redacted portion is irrelevant, and the redaction is necessary.
If the portions are relevant and there is no good reason why they should not be produced, the portions may still be redacted if they are protected by privilege. This solicitor/client privilege or a common law privilege which is governed by the Wigmore criteria.
The Wigmore test as to whether a communication will qualify as privileged requires that:
- the communications must originate in a confidence that they will not be disclosed;
- this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;
- the relation must be one which in the opinion of the community ought to be sedulously fostered;
- the injury that would enure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.
Upon reviewing the redacted portions of the notes and records, the Court determined that they were irrelevant and that there was no good reason for the Plaintiff to have to produce them as they did not help to resolve the issues in the litigation and could potentially embarrass and prejudice the Plaintiff. The Court found that most of the redactions involved discussions about the Plaintiff’s current lawsuit and her family law file, in addition to her thoughts on the court process and her lawyers. The Court held that disclosure of her litigation strategy and sentiments expressed to her counsel could only prejudice the Plaintiff in her family law case and in this matter and dismissed the Defendant’s motion.
Plaintiff’s Motion: Anonymization of the Parties & Sealing Order
Regarding the Plaintiff’s motion for an Order anonymizing the parties’ names and a sealing order with respect to her psychologist’s redacted and unredacted notes, the Plaintiff submitted that the entries went to her “biographical core” and as such should be anonymized and sealed. The Plaintiff referenced the highly personal and detailed nature of her psychologists notes and how they included comments on her childhood, her parents, and general details on her emotional and psychological well-being.
The Defendant and media took no position on this motion.
The Court considered the test set out by the Supreme Court of Canada in Sherman Estate v. Donovan, 2021 SCC 25, which outlines that a party seeking a sealing order or publication ban must establish that:
- Court openness poses a serious risk to an important public interest;
- The order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,
- As a matter of proportionality, the benefits of the order outweighs its negative effects. The first prong of this test requires an applicant to show that the open court principle poses a serious risk to an important public interest in the context of the case.
Considering the principles set out in Sherman and considering the nature of the Plaintiff’s discussions with her psychologist, the Court ordered the anonymization of the names in addition to a sealing order. The Court reasoned that the records revealed intimate details of Plaintiff’s life going to her biographical core, including childhood issues, feelings of self, and perception of her relationships with close family members and friends. As the Defendants did not oppose the motion, nor did the media, the Court held that ordering the anonymization of names was the least disruptive to the open court principle.
The Court commented on the balance between the open court principle and the public’s interest in protecting those with mental health issues. The Court reasoned that,
There exists a strong public interest that individuals with mental health issues who are involved in litigation have remedies to ensure that their private lives that have been opened up for the purposes of litigation are not available to the general public who should have no interest or need to view these personal and private discussions.
The core public interest is the public’s need to ensure the non-publication of private and confidential information dealing with one’s self-worth and innermost feelings which could jeopardize their healing and therapy.
Ultimately, the Court held that the Plaintiff should not be forced to make available to the general public confidential discussions she has had with her psychologist whom she has seen for over 15 years.
While the values of freedom of expression reign strong, the Court reasoned that in this case, the benefits of ensuring that the public interest of protecting therapist/patient relationships which assist individuals with mental health issues outweighed any negative effects. This decision marks an important step in safeguarding medical records that deal with such an intimate and sensitive nature, especially in the context of mental health, from unnecessary publication, disclosure, and production.
