Court refuses to order production of medical records of applicant challenging validity of will

An Ontario court has recently determined that ordering the production of psychiatric records in a particular case could potentially impact others seeking psychiatric attention, who may feel less secure about the confidentiality of their records.

In Kinnear v. Kinnear, 2021 ONSC 6539, late Russell Barr Kinnear executed a will in August 2015, appointing his son Christopher Kinnear as estate trustee and sole beneficiary of his estate and son’s spouse Mara Christopher Kinnear as his attorney for property and personal care.

A September 2015 report by a physician provided that the man, who had previously suffered a severe brain injury, scored 13/30 on a mini-mental state examination and was determined incompetent to make financial decisions.

In June 2016, the applicant wrote an email to the respondent, which mentioned his psychiatrist’s name and claimed their father wanted to make changes regarding the will. Their father died in October 2016 at 82 years old.

In June 2020, the applicant, who had been living with and caring for the deceased at the time of his death, filed an application challenging the will’s validity, alleging that the deceased lacked testamentary capacity when he executed the will and was subjected to undue influence by the respondents.

The respondents sought an order for production of the applicant’s medical records and files in possession of his psychiatrist, contending that the psychiatric records could include evidence that would support their defence that the applicant's challenge was statute-barred for being filed beyond the applicable two-year limitation period, which commenced on the date of the deceased’s death.

During the cross-examination stage, the applicant and his psychiatrist refused to answer questions about the June 2016 email based on privilege. The psychiatrist signed Form 15 under the Mental Health Act, claiming that disclosing, transmitting, or examining the psychiatric records would likely harm the applicant's treatment or recovery.

The Ontario Superior Court of Justice dismissed the respondents’ motion and awarded the applicant costs fixed at around $13,000. The court ruled that the psychiatric record will not be produced for confidential and privileged reasons and that the harm arising from the production of the records would outweigh any potential benefit if the records did disclose evidence that might contribute to the litigation’s outcome.

The court held that the applicant, who suffered from depression, was hospitalized after his father’s death, had compelling privacy interests, including his interests in preserving his mental health, his relationship with his psychiatrist, and his future treatment. The applicant consistently opposed disclosure of the records, and there was no evidence that he knew a privilege existed or intended to waive his privacy rights over his communications with his psychiatrist, the court wrote.

The court concluded that the requirements set out in M. (A.) v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 SCR 157 were met and noted that the respondents could acquire information from sources other than the psychiatric records to support their allegation regarding the limitation period.