In this long-term disability matter H.C., Justice Doyle ruled that the plaintiff was not required to produce the redacted notes and records of her long-time treating psychologist. The Court also granted the plaintiff’s cross-motion for anonymization of the parties’ names as well as a sealing order of the psychologist’s treating records. The case sets out the general principles on redactions of records as well as the Wigmore criteria, and that such redactions be allowed if the information is not relevant to the matter and there is no good reason to produce it.
The plaintiff was a 55-year-old working in communications. She received Long-Term Disability (“LTD”) benefits from her carrier from March 2020 until termination of the benefit in March 2022 her disability precipitated by a separation from her husband. She brought the claim against her LTD insurer for the denial of her ongoing benefits.
The plaintiff had previously disclosed the litigation, 114 pages of her psychologist’s clinical notes and records and another 11 pages which were partially or wholly redacted. The defendant brought a motion to produce the unredacted psychologist’s records.
Production of Unredacted Records
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. The Court found that the redactions fell into the categories of: discussions regarding her settlement conference in her family law case (including comments about the judge and results), discussions with her family law lawyer about the general status of the family law file (and her “bottom line”) and discussions about meetings with her own lawyer in the within LTD matter, (including the plaintiff’s “post-mortem” after mediation and discoveries).
The plaintiff’s position was that only small, irrelevant sections had been redacted, including how she felt about litigation, the court process and her lawyer. The defendant took the position that the plaintiff had failed to satisfy the Wigmore criteria, specifically, the 4th criterion, that there was no evidence her relationship with her psychologist would be destroyed if the unredacted information was produced. The defendant submitted that it was entitled to see the plaintiff’s thoughts and feelings, which would have a bearing on the LTD claim.
Justice Doyle reiterated the general principles relating to production of documents as set out by Justice Strathy in McGee v. London Life Insurance Company Limited, 2010 ONSC 1408, 86 C.C.L.I. (4th) 86:
- As a general rule, relevant documents must be produced in their entirety, and a party may not redact portions on the basis that those portions are “not relevant”; [1]
- The whole of a document must be produced unless it would cause significant harm to the producing party or would infringe public interests deserving of protection;
- If the redacted portion is clearly not relevant and there is good reason why it should not be disclosed – (i.e. it would cause significant harm to the producing party or would not serve to resolve the issues at hand) – then it should not be produced; and
- The party resisting disclosure has the onus to show that the redacted portion is irrelevant, and the redaction is necessary. [2]
If the portions are relevant and there is no good reason why they should not be produced, the portions may still be redacted if protected by privilege, including solicitor/client or common law privilege within the Wigmore on Evidence criteria. [3]
The Court noted that the plaintiff had already produced over 100 pages of unredacted psychologist notes, some of which were highly personal and irrelevant to the proceedings in full without redactions but went on to find that the redacted portions of the additional records provided were irrelevant and that there was no good reason to produce them. The redacted portions did not help to resolve any of the issues in the action and could potentially embarrass and prejudice the plaintiff. Disclosure of her litigation strategy and sentiments expressed to her counsel could only prejudice the plaintiff in her family law case and in this LTD matter.
Given the Court’s finding that the redacted portions were not relevant and that there was no good reason to produce them, there was no need to consider whether the communications were privileged within the Wigmore criteria.
Anonymization of the Parties
With respect to the plaintiff’s cross-motion seeking to anonymize the parties’ names, the Court considered the principles set out by the Supreme Court of Canada in Sherman Estate v. Donovan.
Additionally, the defendant had not taken a position, the media did not attend and anonymization was found to be the least disruptive to the open court principle. The salutary effects of granting the order outweighed the deleterious effects associated with such a publication ban.
Sealing Order
Applying the test in Sherman, the Court also granted the plaintiff’s sealing order with respect to all the psychologist’s clinical notes and records. The Court noted that despite the importance of the open court principle, the public has a strong interest in protecting those with mental health issues. The plaintiff should not be forced to make available to the public confidential discussions she had with her psychologist of over 15 years.
The serious risk of publishing such private discussions was that it could hinder and curtail open and frank discussion by other patients with mental health issues who would see that their discussions could be made public. The psychologist’s notes reflected deep and personal information about the plaintiff that went to her biological core and would affect her dignity.
The defendant was not prejudiced by this order and the media had not opposed it. The benefits of ensuring that the public interest of protecting therapist/patient relationships assisting individuals with mental health issues outweighed any negative effect of the ban.
[1] H.C. at para 24; [2] Dupont v. Bailey et al, 2013 ONSC 1336, 49 C.P.C. (7th) 166, at para. 16 citing Wigmore on Evidence; H.C. at para 26; [3] Pinder v. Sproule, 2003 ABQB 33, 13 Alta. L.R. (4), at paras 9-11; H.C. at para 29
