In a recent decision out of the Ontario Superior Court of Justice, the Court was faced with the question of whether or not a party’s personal medical records, which could be relevant to a limitations defence, are producible in the context of a Will Challenge.
In Kinnear v Kinnear, 2021 ONSC 6539, two brothers disputed over their late father’s Estate.
In June, 2020, the Applicant commenced a challenge to the validity of the Last Will on the grounds of alleged lack of testamentary capacity and undue influence. The Respondents took the position that the Will Challenge was statute barred, and, that the Applicant was aware, prior to the Deceased’s death, that the Deceased had prepared the Will, and that the Applicant was not a beneficiary under the Will.
The Deceased died on October 11, 2016. The Applicant took the position that while he was aware his father was attending a meeting with a lawyer, prior to his death, he believed it was for the preparation of power of attorney documents, and, that while he was aware that his father had considered making changes to his Will, he was never aware that a new Will had been prepared, only learning of this fact when his lawyer obtained a copy of the Respondent’s probate application in February, 2020.
On June 15, 2016, the Applicant emailed one of the Respondents indicating that the Deceased had been considering making changes to his Will, but could not acknowledge a Will already existed. The same email also indicated that the Applicant would “have to prove his words by one DR Michelle Clarke.” On cross-examinations, the Applicant and Dr. Clarke both refused to answer questions regarding the June 2016 email on the basis of privilege.
The Respondents subsequently brought a motion for the production of the Applicant’s psychiatric medical records with Dr. Clarke, taking the position that the Applicant brought the records into the proceeding through the June 15, 2016 email. The Respondents took the position that the medical records may include evidence that would support their limitations defence.
In considering this issue, the Court noted that the limitation period for a Will Challenge in Ontario is two years from the date of death of the testator, subject to the doctrine of discoverability, and, that the Court is entitled to make an order for the production or inspection of a document that is in the possession of a non-party that is not privileged. Further to rule 30.10 of the Rules of Civil Procedure, such production can be ordered if (a) the document is relevant to a material issue in the action, and (b) it would be unfair to require the moving party to proceed to trial without having discovery of the document.
The Court also considered the Supreme Court of Canada decision, M(A) v Ryan [1997] 1 SCR 157 which sets out the necessary requirements to support a claim for privilege over communications between a patient and doctor:
- the communication at issue originated in confidence that it would not be disclosed;
- the element of confidentiality must be essential to the maintenance of the relationship between the parties;
- the relation must be one in which the opinion of the community ought to be fostered; and
- the interests served by protecting the communications from disclosure outweigh the interest of pursuing the truth and disposing correctly of the litigation.
The Respondents argued that the Applicant waived, or partially waived, privilege by sending the June 15, 2016 email. The Court disagreed, finding that the Applicant had consistently opposed the disclosure of any psychiatric records, such that there was no evidence that the Applicant, as the possessor of the privilege, was aware of the existence of the privilege and held an intention to waive the privilege.
Dr. Clarke provided evidence to the Court that indicated that the release of the records, even in a circumscribed manner, would be destabilizing to the Applicant’s mental health. Further, the Court found that the Respondents failed to provide any compelling evidence that the medical records would be likely to contain any relevant information regarding the Will, the Deceased’s Estate Planning, or to the question of discoverability. Further, the Court found that the Respondents would not be prejudiced if the medical records were not produced, as they could rely on evidence from other sources regarding the limitation period defence, including the evidence of the drafting solicitor and their own email exchanges with the Applicant.
Ultimately, the Court dismissed the Respondents’ motion and refused to grant the production of the Applicant’s medical records. In reaching this conclusion, the Court noted that “an order for production in a case such as this could have effect beyond this case. If production were ordered, others seeking psychiatric attention may feel less secure about whether their medical records would, in fact, be kept confidential. This insecurity could lead to less open communications with their mental health professionals and could prove detrimental to their treatment.”
For more on the production of medical records, check out the below blogs:
Medical Records: Be Careful What you Ask For, And How!
Request for Production or a Fishing Expedition?
Admissibility of Medical Records
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