The Use Of Rule 31.06(2) In Medical Malpractice Cases

It has been said many times that the introduction of the Rules of Civil Procedure in January 1985 was designed to broaden the scope of documentary and oral discovery. An important, and perhaps overlooked, facet of the Rules is the right to obtain the identity of persons who might have knowledge of the matters in issue. Rule 31.06(2) provides that: “A party may on an examination for discovery obtain disclosure of the names and addresses of persons who might reasonably be expected to have knowledge of transactions or occurrences in issue in the action, unless the court orders otherwise.” It is easy to forget that prior to the enactment of Rule 31.06, a party was precluded on examination for discovery from: obtaining the disclosure of evidence as opposed to facts; cross-examining the opposing party; and obtaining the identity of witnesses. Tossy v. Robert Simpson Co., [1949] O.W.N. 57 (H.C.J.)

Rule 31.06 swept away these restrictions in an attempt to facilitate the early disclosure of information so as to promote settlement and prevent ambush at trial. It is apparent from the wording of Rule 31.06(2) that the threshold for obtaining disclosure is very low. The rule requires only that there be a reasonable expectation that the person might have the required knowledge. The rule is also very broadly cast to encompass knowledge of “transactions or occurrences.” Clearly, this would include any matter of relevance to the action in question.

The courts have recognized the significance of this language. As interpreted, Rule 31.06(2) has been held to require that a party disclose not only the names and addresses of persons who might have knowledge, but also a summary of their evidence. In the early case ofBlackmore v. Slot All Ltd. (1985), 18 C.P.C. (2d) 181 (Ont. H.C.J.) Steele J. said: “The Rules should be given a broad interpretation to permit full and expeditious disclosure” and held that “the name and address of a witness must be disclosed as well as a summary of the evidence that that witness is expected to give.” The decision was followed in Dionisopoulos v. Provias (1990), 71 O.R. (2d) 547 (H.C.J.) where Granger J. said: “If ‘the names and addresses of persons having knowledge’ is discoverable, then it would seem to me that a proper question relating to that is ‘what is the substance of their knowledge.’” Elaborating on these authorities, Ewaschuk J. said in Tax  Time Services Ltd. v. National Trust Co. (1991), 3 O.R. (3d) 44 (Gen. Div.): “Furthermore, it is immaterial that the party being discovered does not intend to call the persons as witnesses. The other party must also have an opportunity to decide if it should or should not call the witness to testify at trial if the opposing side does not.”

With these statements in hand, combined with the semblance of relevance test for the disclosure of information on discovery, the breadth of modern production and discovery can readily be seen. In this paper, I propose to examine the use that can be made of Rule 31.06(2) in actions for medical malpractice with reference to several cases which have considered the issue. It will be seen that the rule can be a powerful tool to obtain the disclosure of private information and the identity of third parties who have no stake in the action at hand.

In Bolender v. Ross Memorial Hospital (2001), 9 C.P.C. (5th) 286 (Ont. Master), the Plaintiff had undergone knee surgery and fell while she was being mobilized in her room by hospital staff. There were four patients occupying the room. The identity of the other patients was requested on discovery and refused by the hospital on the basis of confidentiality. The hospital relied on Regulation 965, section 22(1) passed under the Public Hospitals Act: “Except as required by law or as provided in this section, no board shall permit any person to remove, inspect or receive information from medical records or from notes, charts and other material relating to patient care.” As the requested information would have to come from such records, the hospital argued that it could not be disclosed. Master Dash noted that “Neither counsel has been able to produce any legal precedent which has considered the release of names of non party patients by a party hospital.” On the basis in part of the authorities referred to above, Master Dash held that Rule 31.06(2) provided the exception “required by law” to override the terms of the Regulation. The Master ordered that the hospital provide the names and addresses of persons the hospital knew or had reason to believe were in the Plaintiff’s room at the time of the fall.

In a more far reaching decision Anderson v. University of British Columbia, 1991 CanLII 1677 (B.C.C.A.), the Plaintiff sought the hospital charts of other patients, with the patient names deleted, so as to determine other obligations the doctors would have had while attending to the Plaintiff. The expressed purpose of seeking the records was to “determine whether or not the other obligations of the doctors and the nurses detracted from the proper care which ought to have been administered to the plaintiff.” After review of the pleadings and the disputed records, the chambers judge stated: “Counsel for the plaintiff would be far better able than the court to detect areas of potential interest and further inquiry, and to discard documents, or portions of documents, which in his view are of no assistance in furthering his case or in damaging the defendants’ case” and “those documents may be relevant indirectly to show the other demands on the defendants’ time and attention at critical periods of the plaintiff’s treatment.”

The British Columbia Court of Appeal upheld the order. The Court stated that “the plaintiff has a right to have access to documents which may fairly lead him to a train of inquiry which may directly or indirectly assist him in his cause” and “The test, it must be remembered, is not whether the documents, production of which is sought, must have that result, but only that they may.” [Emphasis in original.] The hospital’s strongly expressed concerns about confidentiality were addressed by deletion of the patient names from the records.

A similar issue arose in a case that I am involved in, which involves the impregnation of a patient while she was on a forensic ward with 19 male co-patients at the Queen Street Mental Health Centre. The identity of the father is not known and as part of the discovery process, the names and addresses of the co-patients was requested. This was refused. Case Management Master Brott ordered production of the information of staff and co-patients, on the basis that they were persons who might have knowledge of occurrences in issue in the action. The order of the Master was appealed by the Defendants. Mr. Justice Harvey Spiegel dismissed the appeal: Allalouf v. Her Majesty the Queen (March 12, 2007, S.C.J.)

The hospital relied on the provisions of the Personal Health Information Protection Act, S.O. 2004, which prohibits the disclosure of personal health information. However, section 41(1) of the Act provides that: “A health information custodian may disclose personal health information about an individual, (a) subject to the requirements and restrictions, if any, that are prescribed, for the purpose of a proceeding or contemplated proceeding in which the custodian or the agent or former agent of the custodian is, or is expected to be, a party or witness, if the information relates to or is a matter in issue in the proceeding or contemplated proceeding”; …or (d) for the purpose of complying with, (i) a summons, order or similar requirement issued in a proceeding by a person having jurisdiction to compel the production of information, or (ii) a procedural rule that relates to the production of information in a proceeding.”

Reference was also made to the Mental Health Act, section 35(5) of which states: “Subject to subsections (6) and (7), the officer in charge or a person designated in writing by the officer in charge shall disclose, transmit or permit the examination of a record of personal health information pursuant to a summons, order, direction, notice or similar requirement in respect of a matter in issue or that may be in issue in a court of competent jurisdiction or under any Act.”

Faced with these provisions, Mr. Justice Spiegel stated: “In my view, none of the statutory provisions referred to by counsel for the appellant restricts or fetters the Master’s power to make the order in question.” As a result of these decisions, it can be seen that the interests of justice have been held to override concerns about the confidentiality of health records where the production of such information may be relevant to the fact finding process in a civil proceeding.

A decision which goes in a contrary direction is Dudulski v. Kingston General Hospital(1987), 59 O.R. (2d) 520 (Master), where Master Donkin refused to order the Plaintiff to provide the identity of a nurse from whom the Plaintiff had received helpful information. The Plaintiff indicated that the nurse would not be called as a witness at trial and the consequences to the nurse of disclosing the information were potentially serious. Master Donkin held that the fact that the nurse would not be called as a witness was not a reason to refuse disclosure, but stated that the consequences to the nurse were sufficient to “order otherwise” under Rule 31.06(2).

As indicated, Rule 31.06(2) requires the disclosure on examination for discovery of the names and addresses of persons who might have knowledge of the matters in issue in the action. This however has not been interpreted to include the requirement that a party disclose a list of the witnesses intended to be called at trial. Nevertheless, a trial judge retains a discretion to order such information to be produced. In Robb Estate v. St. Joseph’s Health Care Centre (2000), 34 C.P.C. (4th) 133 (Gen. Div.), Ellen Macdonald J. ordered Plaintiff’s counsel in the midst of trial to provide a list of intended witnesses and a summary of their evidence. She stated: “The absence of a reliable witness list interferes with the orderly progression of the trial and compromises effective preparation of cross-examination. As a trial strategy, it is no longer acceptable.” It seems to me by analogy, it can be argued that a judge presiding at a pre-trial conference or at a trial management conference would have the discretion to make such an order, and consideration should be given to the use of the rule in this manner in an appropriate case.

In order to take full advantage of Rule 31.06(2), it would also seem to me to be good practice to ask specifically on discovery for the names and addresses of all persons who might have knowledge of transactions or occurrences in issue in the action, together with a summary of their evidence. This will trigger the requirement that additional information obtained by the defence subsequent to the examination be produced or corrected pursuant to Rule 31.09(1).

As I have tried to demonstrate, it is my strong belief that Rule 31.06(2) is a powerful tool in the litigation arsenal, and can be put to particularly effective use in the difficult field of claims for medical malpractice.

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