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 should go under a microscope simply because they’re suing the person they claim destroyed their life.
People want their privacy and feel they shouldn’t 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, accident victims still hate the idea of having to disclose all of their medical, employment, and tax information as well as potentially their social media profiles 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 a treatment provider such as 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, Master Pierre 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 that included depression and trauma. Defence counsel requested the clinical notes and records of the psychologist treating the plaintiff.
While the plaintiff produced the vast majority of the psychologist’s clinical notes and records, there were 17 partially redacted pages on the basis that the information was either not relevant or subject to privilege. The redacted information related to information and discussions associated with the plaintiff’s tort claim, including 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 subject to privilege.
With respect to the issue of relevance, the master noted the plaintiff must produce a relevant document, such as the psychologist’s records, in its entirely without portions redacted on the basis of relevancy and subject only to certain exceptions.
One exception 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 assisting in resolving the issues in dispute.
Another exception is where the redacted information is relevant but subject to any type of privilege.
Roger suggested that where a plaintiff is redacting portions, counsel should try to resolve the issue without the need for a motion by having off-the-record discussions or explaining very clearly the reasons for the redactions.
In the end, Roger reviewed the redacted portions and concluded “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, Roger found the plaintiff could redact the records. He therefore declined to address whether or not the redacted portions would have been subject to privilege.
In cases where a client shares privileged information with a treatment provider in the course of therapy, it would make good sense to allow the details to remain protected 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,
Dupont provides little comfort to personal injury lawyers worried that their legal advice will end up being disclosed via treatment providers to defence counsel.
Darcy Merkur is a partner at Thomson Rogers in Toronto practising plaintiff’s personal injury litigation. Merkur is a certified specialist in civil litigation and the creator of the personal injury damages calculator.
