C.A. No. 122219
NOVA SCOTIA COURT OF APPEAL
Cite as: Traverse v. Turnbull, 1996 NSCA 124
Hallett, Freeman and Bateman
BETWEEN:
BARBARA JAYNE TRAVERSE ) Raymond F. Wagner
) and Anna Marie Butler
) for the Appellant
Appellant )
)
- and - )
) Colin Clarke
) for the Respondent
GEOFFREY KINDRED TURNBULL, ASTRA ) Dr. Turnbull
PHARMA INC., ASTRA/DRACO and )
A.B. ASTRA )
)
Respondents ) Appeal Heard:
) April 3rd, 1996
)
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) Judgment Delivered:
) June 5, 1996
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THE COURT: Appeal dismissed per reasons for judgment of Hallett, J.A.; Freeman and Bateman, JJ.A. concurring.
HALLETT, J.A.:
This is an appeal from an order of Nathanson J. sitting in Chambers ordering the plaintiff, in an action against Dr. Turnbull for negligent treatment of the appellant's Crohn's Disease: (i) to produce for Dr. Turnbull photocopies of all medical records and charts which are or have been in the possession, custody or control of the plaintiff relating to the examinations and history leading up to the initial diagnosis of the plaintiff's Crohn's disease as well as all medical records and materials which have followed concerning the plaintiff's health; and (ii) to bear the costs of retrieval and reproduction of all relevant medical records and charts.
The appellant has suffered from Crohn's disease since 1987. She was first treated in St. Clare's Mercy Hospital in St. John's, Newfoundland, in August of that year. She moved to Toronto where her treatment was taken over by a Dr. Moore at St. Michael's Hospital. Through 1988 and 1989, while in Toronto, she suffered severe pain from this disease. In May of 1990 she moved to Truro, Nova Scotia. She was examined by Dr. Turnbull at the Halifax Infirmary. He prescribed a medication regime similar to her prior medication treatments. Subsequent thereto her disease was controlled. In November of 1992 the disease again became active and she again consulted Dr. Turnbull who informed the appellant that she was a prime candidate for an experimental study into the drug Budisonide CIR. The drug is manufactured and supplied by the Astra companies, the other defendants in these proceedings. The appellant participated in the program pursuant to a contractual arrangement whereby she would be compensated in the event there was significant injury caused to her as a result of such participation. Subsequent to signing the agreement she developed severe cramps. Dr. Turnbull operated on her and found a problem with her bowel. She was subsequently given high dosages of the drug. In February of 1993 she developed numerous medical conditions including bowel obstructions, peri-anal abscesses, incisional revisions, and the need to have drainage tubes inserted. The statement of claim asserts that the disease became highly active. She sued the defendants in contract and in negligence asserting that her current health was caused by their negligence.
Both defendants deny that they were negligent. In the defence filed on behalf of Dr. Turnbull it is asserted that the complications she developed subsequent to participating in the study were complications that came about from natural causes and were not caused or contributed by Dr. Turnbull's treatment. Astra denies liability to the appellant under any products liability doctrine or contractually and further denies any liability to the appellant in negligence.
Both Astra and Dr. Turnbull filed a List of Documents as required by Rule 20.01(1). The appellant did not.
Dr. Turnbull made an application to the Supreme Court to require the appellant to provide copies of all medical records of three named hospitals and the records of two doctors practising in Nova Scotia who had treated the appellant from the time she was first diagnosed to the present.
The application was supported by the affidavits of Dr. Turnbull's counsel and of Dr. Desmond Leddin. The affidavit of Dr. Turnbull's counsel sets out that he had requested these records from the appellant's counsel. He was advised that the records had been requested from St. Clare's Mercy Hospital, Newfoundland; the Colchester Regional Hospital in Truro and St. Michael's Hospital in Toronto as well as the records of the Halifax Infirmary in Halifax. Subsequently the appellant's counsel advised him that the Colchester Regional Hospital estimated it would cost approximately $909.50 to reproduce the appellant's medical records in their possession. Dr. Turnbull's counsel then reaffirmed his position that in his opinion the records were relevant to the litigation and should be produced by the appellant. While the appellant was prepared to cause the records to be produced, the appellant is not prepared to pay any costs relating to their production. Counsel for Dr. Turnbull did not agree with the appellant's counsel that there was an existing practice that the party, who requested production in these circumstances, pay the costs associated with the production of documents.
Astra was prepared to share in the costs of reproducing the medical records although their counsel stated he might normally object but for the purpose of expediting the matter he would agree with the request made by appellant's counsel that the defendants share the costs. Counsel for Astra made no on-going commitment in regard to covering future costs of production.
Dr. Desmond Leddin, like the defendant Dr. Turnbull, specializes in gastroenterology. He reviewed the list of documents provided by each defendant and the medical records of St. Clare's Mercy Hospital which had been provided by the appellant. Based on a review of those records he was able to ascertain the course of treatments received by the appellant from 1987 to 1993. He concluded, based on his review, that the medical records of the doctors and hospitals in question would be relevant to determine whether the appellant suffered from any of the numerous severe medical conditions noted in the statement of claim prior to the appellant's decision to participate in the experimental drug study. He was of the opinion that the medical records subsequent to her participation in the study were also relevant and that her Crohn's disease which began in 1987 may have worsened regardless of whether the appellant took part in the drug study.
Counsel for the appellant filed his affidavit in opposition to the application made on behalf of Dr. Turnbull for the production of these documents. He recited the exchange of correspondence between counsel arguing over who would pay for the production by the non-parties, of the medical records and disagreed with the position taken by counsel for Dr. Turnbull that the appellant should provide the records at the appellant's costs as she could claim the costs associated with photocopying as legal costs should she succeed at trial but that the initial production should be at the expense of the appellant.
Decision of the Chambers judge
The learned Chambers judge addressed the issue of whether the medical records sought were in the possession, custody or control of the appellant. He stated that, as there were no Nova Scotia cases on point, he would look to authority in other jurisdictions. He found there were conflicting case authorities. After making reference to cases which were cited by both the appellant's and respondent's counsel in support of their respective positions he concluded that Civil Procedure Rule 20 imposed a burden on the appellant to provide copies of all documents. He was persuaded on the authority of the cases submitted on behalf of the respondent that "there is control on the part of the plaintiff because the right of access is in effect a kind of control within the contemplation of Rule 20." He also found support for this conclusion in the decisions in Van Der Ploeg v. Quick (1984), 27 Alta. L.R. (2d) 221; Furlano et al v. Calarco (1987), 60 O.R. (2d) 451 and McInerney v. MacDonald, [1992] 2 S.C.R. 138.
The learned Chambers judge then dealt with the second issue as to who should bear the costs of providing the photocopies of the medical records. He stated:
"I acknowledge that there may exist a practice by some Solicitors to share the cost of providing copies pending the eventual taxation of costs at the end of the case. But my opinion is that the burden for payment must rest upon the party who claims, the party who provides the list of documents, the party who is required to provide the list of documents and copies of documents. That is the plaintiff."
On this issue he relied, in particular, on a decision, Royal Bank of Canada v. Waller (1991), 74 Man. R. (2d) 32.
The Chambers judge concluded:
"I would hold that what is contemplated and implied by our Rule 20 is that the burden of the expense, until taxation of costs, will be borne by the party upon whom there is a duty to submit a list and to submit copies of the documentation."
He went on to state:
"....there is a burden on the plaintiff to prove its case at trial, and it seems to me logical that there should be a parallel duty on the plaintiff to produce prior to trial the documents upon which it must rely in order to prove that case at trial."
Issues on Appeal
The appellant asserts that the learned Chambers judge erred in law in determining that the medical records concerning the appellant's Crohn's disease which were sought were in the control of the appellant; and secondly, that he erred in deciding that the costs of obtaining the medical records should be borne by the appellant.
The Law Relevant to the Issues Raised on the Appeal
Civil Procedure Rules 20.01, .02, .06 and .09(1) as well as Rule 31.15 have relevance to this appeal. These rules provide:
"20.01. (1) Unless the court otherwise orders, a party to a proceeding shall, within ten days after the close of the pleadings between an opposing party and himself, or within seven days after the service of the originating notice where there are no pleadings, serve on the opposing party a list in Form 20.01A of the documents that are or have been in his possession, custody or control relating to every matter in question in the proceeding and file with the prothonotary the list without a copy of any document being attached thereto.
(2) A list of documents under paragraph (1) shall enumerate the documents in a convenient order with a short description of each document or, in the case of bundles of documents of the same nature, of each bundle.
(3) .....
(4) Unless the court otherwise orders, a list of documents shall state, with respect to any document on the list that is in the possession, custody or control of the party serving the list and for which privilege from production is not claimed,
(a) that a true copy of the document is attached to the list,
(b) that the party receiving it may, if it is necessary, inspect the document by immediately communicating with the party serving the list, and
(c) that the party serving the list will produce the document at the trial or hearing of the proceeding."
Under Rule 20.02 the court may order any party to file a list of documents.
"20.06. (1) The court may order the production, for inspection by any party or the court, of any document relating to any matter in question in a proceeding at such time, place and manner as it thinks just.
(2) Where a document is in the possession, custody or control of a person who is not a party, and the production of the document might be compelled at a trial or hearing, the court may, on notice to the person and any opposing party, order the production and inspection thereof or the preparation of a certified copy that may be used in lieu of the original.
(3) An order for the production of any document for inspection by a party or the court shall not be made unless the court is of the opinion that the order is necessary for disposing fairly of the proceeding or for saving costs and is not injurious to the public interest.
20.09. (1) Where a party fails to make discovery of or produce for inspection any document under an order or Rule 20, he is liable to be punished for contempt, and if a plaintiff, to have the proceeding dismissed, or if a defendant, to have the defence struck out.
31.15. (1) Unless the court orders, no document shall be admissible in evidence on behalf of a party unless,
(a) reference to it appears in the pleadings, or in a list of documents filed and served under rule 20.01 by any party;
(b) ......
(c) ......
(d) .....
Rule 20.01 does not expressly set out who pays for the production of relevant documents sought by an opposing party although it may be implicit. As well, there are no cases in Nova Scotia, other than the decision under appeal, that specifically deal with what is meant by "control" under Rule 20.01.
The main issue in this appeal relates to who should pay, as the appellant has agreed to produce the medical records, but does not feel she should pay for the costs of reproduction.
In Imperial Oil v. Nova Scotia Light & Power Co. Ltd. (1975), 10 N.S.R. (2d) 679 (N.S.S.C.A.D.) (Dec. 6/74) this Court was dealing with an appeal from a decision of a Chambers judge requiring Imperial Oil to produce certain documents that the defendant considered relevant on the question of whether an escalation clause in an oil supply contract between the parties required the defendant to pay a price increase which was estimated at $122M over the period of the contract due to certain taxes that had been imposed by the Government of Canada and the Republic of Venezuela. The Appeal Division affirmed the decision of the Chambers judge, but with some variations. In the course of the decision Coffin J.A., writing for the Court, made reference to an earlier decision of Cowan C.J.T.D. in Imperial Oil Ltd. v. Nova Scotia Light & Power Co. Ltd. (1976), 15 N.S.R. (2d) 653 (Jun. 13/73). That case dealt with the proper approach to the interpretation of Civil Procedure Rule 18 dealing with discovery. Cowan C.J.T.D. stated at p. 656:
"My disposition is to give a liberal or wide construction to a rule of this type. On the other hand, unless there are some limits placed upon its application, it can be used in a way which is burdensome, and it is for that reason that Civil Procedure r. 18.01(2) provides that the court may limit the number of persons to be examined where it is unnecessary, improper or vexatious. The overriding principle is whether or not a person proposed to be examined has any information with regard to any matter, not privileged, that is relevant to the subject matter of the proceeding. I am not convinced that the persons now sought to be examined on Discovery have such information or that the matters about which it is proposed they be asked, are relevant to the subject matter of the proceeding. In addition, I am of the opinion that, at this stage, it would be unnecessary, improper and vexatious to issue the order which is sought."
In the appeal dealing with the requirements of Rule 20 to produce documents Coffin J.A. stated at 10 N.S.R., p. 691 with respect to the foregoing remarks:
"Although Chief Justice Cowan was dealing with another rule, his remarks were appropriate to the problem raised in this appeal."
In Upham v. You (1986), 73 N.S.R. (2d) 73; 176 A.P.R. 73 (C.A.) Justice Matthews stated that it has been consistently held that the Rules relating to discovery of persons and the production of documents should be interpreted liberally to give effect to full disclosure. He went on to quote the remarks of Jones, J.A. in Central Mortgage & Housing Corp. v. Foundation Co. of Canada Ltd. (1982), 54 N.S.R. (2d) 43 where Justice Jones, writing for the Appeal Division, stated:
"Coupled with the requirements under the Rules for complete disclosure and inspection of documents, interrogatories, admissions, notice of experts' reports, and pretrial conferences, it is apparent that our Rules are designed to ensure the fullest possible disclosure of the facts and issues before trial and thereby avoid the element of surprise. Whereas the former rules prevented pretrial disclosure of evidence I think one can now say the opposite is true. The object is to avoid surprise, simplify the issues and, hopefully, discourage the need for continued litigation . . . . . "
Rule 20 distinguishes between documents that are in the possession, custody or control of a party and those in the possession, custody or control of a non party (C.P.R. 20.06(2)).
Position of the Appellant
The appellant's counsel essentially relies on a decision of the Supreme Court of Canada in McInerney v. MacDonald, [1992] 2 S.C.R. 138 as interpreted by Esson C.J., British Columbia Supreme Court in Sellers v. Grizzle (1994), 27 C.P.C. (3d) 210 to support the interpretation he urges upon us respecting the meaning of the word "control" in Rule 20.01.
In McInerney a patient had requested the contents of her complete medical file from her family doctor. The doctor delivered his file but with the exception of producing copies of consultants' reports that he had received from other physicians. He took the position that the documents were the property of those physicians. Application was made to the Court of Queen's Bench in New Brunswick for an order directing the doctor to provide the patient with a copy of her entire medical file. The application was granted and was affirmed on appeal by the majority of the New Brunswick Court of Appeal. An appeal to the Supreme Court of Canada was dismissed. The Supreme Court of Canada held that the physical medical records (the actual documents) belonged to the physician but that the patient was entitled to copies. The Court concluded that the patient had a beneficial interest in the information and that the patient would have a right of access to the information and the physician had a corresponding obligation to provide the same. The Court went on to state that the patient's general right of access to medical records is not absolute and that there could be circumstances in which a physician might consider that it would not be in the patient's interest to disclose the full record. In the course of its decision the Court stated that while the information in the medical records is, in a fundamental sense, that of the patient, nevertheless the doctor has the primary access to the information. In contrast, the actual medical records are unavailable to the patient as the records belong to the doctor. After giving full consideration to the pros and cons of giving a patient access to his or her medical records LaForest J., writing for the Court, stated at p. 159:
"Since I have held that the tangible records belong to the physician, the patient is not entitled to the records themselves. Medical records play an important role in helping the physician to remember details about the patient's medical history. The physician must have continued access to the records to provide proper diagnosis and treatment. Such access will be disrupted if the patient is able to remove the records from the premises. Accordingly, the patient is entitled to reasonable access to examine and copy the records, provided the patient pays a legitimate fee for the preparation and reproduction of the information. Access is limited to the information the physician obtained in providing treatment. It does not extend to information arising outside the doctor-patient relationship." {Emphasis added}
This decision is the final word on the right of a patient to access his or her medical records.
In Sellers (supra) the action involved personal injuries suffered by the plaintiff. Chief Justice Esson had to deal with the question of the production of the plaintiff's medical records. He held, based on Rules similar to those in force in Nova Scotia, that the obligation on a plaintiff to list relevant documents did not extend to documents that were not in the party's possession but which were in a party's power to obtain. The British Columbia Rule uses the word "power" rather than "control". He concluded that whether a document is in the party's control should not be given any significant distinction from words of similar provisions that speak of a document being within the power of a party to obtain. Chief Justice Esson applied the decision of the Supreme Court of Canada in McInerney (supra) and concluded that the patient did not have the power to require the caregiver to deliver the medical records to the plaintiff. The patient's right was merely to have access to the documents and to obtain copies at his or her expense.
The appellant relies on the decision in Saunders v. Nelson (1994), B.C.J. No. 3039 (B.C.S.C.) to support his argument that Dr. Turnbull ought to pay the cost of reproduction of the appellant's medical records.
Position of the Respondent
Dr. Turnbull supports the ruling of the Chambers judge that the appellant must provide the medical records from various hospitals and doctors and must pay for their reproduction. Counsel relies on several decisions from other jurisdictions, in particular, two decisions of Master Peppiatt in Ontario; Gorin v. Ho (1983), 38 C.P.C. 72 and Hathaway v. Bond (1986), 11 C.P.C. (2d) 277. In those cases the Master ordered the plaintiff to produce documents in the hands of non-parties and to pay the cost of obtaining the copies of the said documents. In Gorin v. Ho (supra) the meaning of the word "control" was not considered nor was the question as to who should pay an issue.
In Hathaway v. Bond (supra) Master Peppiatt followed his own decision in Gorin v. Ho. In the course of his decision in Hathaway v. Bond he stated at p. 280:
"I do not think that lack of funds is a circumstance which justifies departing from the general rule. It is a principle of our system of litigation that each party bears the expense of conducting his or her own case and the successful party is usually reimbursed in whole or in part for these costs."
Counsel for Dr. Turnbull also relies on the decision of the Royal Bank of Canada v. Waller (supra). That case did not deal with the meaning of the word "control". However, I would assume it was conceded that the documents were in the control of the party from whom they were sought. In that case the documents sought were in the possession of a Mr. Douglas who had been Mr. Waller's former counsel; he wanted to be paid the costs of reproduction. In the course of his decision Kroft J. stated:
"The fact that there is a cost attendant upon a party discharging its obligations should not be permitted to defeat the policy of the rules, unless, on the particular facts of a case, it can be established that the information sought is of such little relevance or the cost of producing it so unreasonably high that the burden should be shifted onto the party seeking the information.
There will always be some cost attached to the discovery process, be it in researching answers or obtaining documents.
Extra staff assistance, professional help, photocopying or other disbursements will be incurred. Those expenses should be considered at the end of the litigation process in the course of assessing costs. They should not be an excuse for curtailing discovery or production.
. . . . .
Having concluded that the fact that some cost is involved in fulfilling an obligation should not be a basis upon which a party can avoid discharging its obligation, it follows that in the circumstances of this particular case the learned master erred when he made his order against Waller conditional upon the payment by the Royal Bank of Canada of Mr. Douglas's account. The appeal is therefore allowed with costs."
Counsel for Dr. Turnbull also relies on decisions in Van Der Ploeg (supra); Furlano et al v. Calarco (supra); Lenergan v. Morrissette (1944), 23 C.P.C. (3d) 186 (Ont. H.C.); and Saunders v. Nelson (supra). Only the last decision is of much assistance on the issue before us.
In Van Der Ploeg v. Quick (supra) the defendants had admitted liability, Master Quinn, noted that the cost of reproducing the medical records would ultimately be paid by the defendants.
In Furlano et al v. Calarco (supra) the real issue was whether the medical records sought were relevant; the issue was not whether they were in control of the plaintiff nor who was to pay for their reproduction.
In Lenergan v. Morrissette (supra) the interpretation of what "control" means was not considered. In that case the plaintiff had put in issue his entire medical and emotional health. The court concluded that all of his medical records must be subject to production. As to who was to pay for the reproduction that was, likewise, not an issue.
I will separately deal with the decision of Sinclair Prowse J. in Saunders v. Nelson (supra). Both parties rely on it. The appellant for the finding that the party seeking the medical records must pay for their reproduction and Dr. Turnbull for the finding that the patient was required to produce the medical records in the hands of non parties.
Counsel for Dr. Turnbull puts considerable emphasis on the decision of the Appeal Division of the Supreme Court of Nova Scotia in Church of Scientology of Toronto v. Maritime Broadcasting Co. Ltd. (1979), 33 N.S.R. (2d) 500. The issue in that case involved the interpretation and application of Rule 20 with respect to the production of documents. I heard that Chambers application when on the Trial Division and concluded that on the evidence before me I was satisfied that documents were readily available to the plaintiff through other Churches of Scientology throughout the world but might take some time to produce. I gave time to the Church to find and produce the documents. Chief Justice MacKeigan, writing for the Appeal Division on an appeal from my order, stated:
"A party can, of course, ordinarily only be required to produce documents in his possession, custody or control. Mr. Justice Hallett found in effect, and I think properly so, that the documents appeared to be in the control of the appellant, being "available" through other Churches of Scientology."
That case turned on its facts. The documents were available to the Church of Scientology and, therefore, were in the control of the plaintiff.
Saunders v. Nelson
In Saunders v. Nelson (supra) Sinclair Prowse J. had to consider British Columbia's Rule 27.20 which states in part:
"A person to be examined for discovery . . . shall produce for inspection on the examination all documents in his or her possession or power, not privileged, relating to the matters in question in the action."
In that case a distinction was drawn between the words "power" and "control"; the meaning of "power" was more broadly interpreted than control. This was presumably done so as to avoid a clash with Esson C.J.'s decision in Sellars. Justice Prowse concluded that the term "power" as used in Rule 27.20 does extend to documents that are in the possession of a third party but to which the party (to the proceedings) to whom the demand has been made to produce the document has access. Justice Sinclair Prowse went on to state:
"However, if I am wrong in this interpretation of this term I draw on my inherent jurisdiction and order that the plaintiff produce the documents requested. In my view, in the circumstances of this case, this order is necessary to ensure justice between the parties. It [sic] only because the third parties are in another jurisdiction that the defendant does not have a right to apply pursuant to Rule 26(11) for this documentation.
Throughout this hearing, the plaintiff took the position that the right of the defendant to full disclosure was not a right that arose until trial. In my view, that characterization of the civil procedure system in British Columbia is out of keeping with the object of the Rules. Rather the Rules in my view are based on the premise that a party is entitled to full disclosure prior to trial.
In any event, in the circumstances of this case given the claims made by the plaintiff, it is both fair and just that the plaintiff be required to produce these documents prior to trial rather than at trial."
It is clear from her reasoning that the case turned on its facts. The plaintiff was making a claim in excess of $600,000. The defence was that the plaintiff's complaints did not arise out of the injury caused by the defendant. The plaintiff resided out of province and all of the medical records were out of province. Justice Sinclair Prowse concluded that the records should be produced in the interest of fairness and justice. The decision illustrates the significance of the facts that give rise to this type of application as it is on the facts of a particular case that the success or failure of these applications tend to turn. Although Justice Sinclair Prowse ordered the plaintiff to produce the out of province medical records, she ordered the defendant to pay the plaintiff all reasonable costs incurred in the production of these documents. In short, the decision supports the view that the party who seeks medical records in the hands of third parties that are not relevant to the presentation of that party's case, but which are clearly relevant to the other party's case, the Court may order the other party to pay the reproduction costs.
Disposition of the Appeal
The application before the Chambers judge was really about who pays for the costs of reproducing the medical records of the plaintiff which were in the actual possession of the hospitals and the doctors. There is no express provision in Civil Procedure Rule 20 to which one can look for guidance as to whether a plaintiff or a defendant pays the cost of having a non-party reproduce copies of the medical records sought. However, by implication, the party required to file a list of documents must pay the reproduction costs of those relevant documents in their possession or control. The case law indicates that courts have exercised jurisdiction to order the party seeking the documents to pay the cost of reproduction if it would be just to do so.
There was no expert evidence adduced before the Chambers judge from experienced counsel practicing in this Province as to the practice of the profession. In my opinion the primary purpose of Rule 20.01 is to provide the opposite party with the documentary evidence upon which the party filing the list of documents will be relying to prove its claim or defence so as not to take the opposing party by surprise at trial. The ancillary purpose is to facilitate a settlement which is accomplished as each party will know what documentary evidence exists if all documents relating to every matter in question in the proceedings are disclosed.
In Imperial Oil v. N.S. Light and Power (supra) Coffin J.A., in considering the scope of the obligations of a party under Rule 20.01, endorsed the opinion of Chief Justice Cowan that there must be limits on the requirement to produce documents as the Rule, given a broad interpretation, could be used in a way which is burdensome.
The complicating factor in this case is that the appellant had not filed a list of documents as required under Rule 20.01. Dr. Turnbull's application to produce was brought pursuant to Rule 20.01. Technically it should have been brought under Rule 20.02(a) to compel the filing of a list of documents. This was not raised as an issue before the Chambers judge. He dealt with the essence of the dispute between the parties and I propose to do the same.
On the Chambers application, the relevancy of the medical records sought was not challenged.
I agree with the learned Chambers judge that a patient has control over his or her medical records in the hands of medical doctors, clinics or hospitals within the context of Rule 20.01. While the patient does not have actual possession or ownership of the records, the patient has access to those records and can obtain copies of such records upon payment of a reasonable fee to cover the cost of reproduction (McInerney v. MacDonald). This right, coupled with the right to restrict access to those records by others, gives the patient a degree of control that warrants a finding that it is the patient, as between the parties, that has control over the records and is required to produce those records with the list of documents required to be filed under Rule 20.01 if the records relate to any question in issue. Any other conclusion would be contrary to a purpose of Rule 20.01 to provide for full disclosure. The learned Chambers judge did not err in concluding that the appellant had control of the medical records in the actual possession of the hospitals and doctors in question.
That leaves only to answer the question as to who should pay the reproduction costs, the appellant or Dr. Turnbull.
From a review of the cases in other jurisdictions, I have concluded that the rule requires that the party who has possession, custody or control of documents related to every question in issue is to produce those documents at that party's expense; it is the cost of being involved in a law suit. Depending on the outcome of the trial, those disbursements may be recovered as part of an award for costs. However, the case law evidences exceptions to the rule. For example: (i) if a party demands compliance with the rule in a manner that is unjust or burdensome to the party in possession or control of the documents the court may relieve the party of the cost burden of reproduction of the documents (Imperial Oil v. N.S. Light & Power (supra)); (ii) if the cost of obtaining information sought from third parties, that would be of little relevance, the burden may be shifted to the party seeking the information (see statement previously quoted of Kroft J. in Royal Bank of Canada v. Waller); and (iii) if the documents sought are primarily to support the other party's claim or defence a court may decide that the party seeking the documents should pay for the cost of reproduction (Saunders v. Nelson (supra); Beeching Estate v. Beeching (1994), 29 C.P.C. (3d) 242 (Sask. C.A.)).
Pursuant to Rule 20.01(4) a court may relieve a party from the obligations of Rule 20.01. However, the Rule requires that a plaintiff must, at his or her expense, comply with Rule 20.01 and produce documents in the plaintiff's possession or control that relate to every question in issue. Absent a court order, there should be no exceptions to the plaintiff's obligation to comply with the Rule. A similar rule applies to the defendant.
The rule that the party in possession or control of documents must bear the expense of producing them applies with equal force to medical records of that party if the records are related to any question in issue in the proceedings. The exceptions I have mentioned also apply. The courts have applied Rule 20 in a manner that balances the interests of the opposing parties.
I would not interfere with the exercise by the Chambers judge of his discretion. He applied the general rule that the initial burden of the expense of producing documents in that party's possession, custody or control relating to any matter in question in the proceedings is on the party obliged to file the List of Documents and copies of those documents. The medical records in question are within the control of the appellant. The appellant has not complied with the requirements of Rule 20.01(1).
There was no evidence before the learned Chambers judge respecting the appellant's financial situation and no evidence as to the costs of obtaining the records from St. Michael's Hospital in Toronto, the Halifax Infirmary or the two doctors in Nova Scotia who treated the appellant. Furthermore, there was no evidence from which the Chambers judge might have concluded that all the records were not relevant to questions in issue. Had there been evidence to prove any of these matters, the Chambers judge might have concluded that justice required the cost of reproducing the remainder of the records which may be relevant to the defence be reproduced at the expense of Dr. Turnbull.
The order appealed from was a discretionary one granted in an interlocutory proceeding. The learned Chambers judge did not apply a wrong principle of law nor on the facts disclosed on the application does his decision result in a patent injustice to the appellant. Therefore, this Court should not interfere with that decision (Minkoff v. Poole and Lambert (1991), 101 N.S.R. (2d) 143 (N.S.S.C.A.D.)).
I would grant leave but would dismiss the appeal with costs to Dr. Turnbull in the amount of $750 plus disbursements.
Hallett, J.A.
Concurred in:
Freeman, J.A.
Bateman, J.A.
C.A. No. 122219
NOVA SCOTIA COURT OF APPEAL
BETWEEN:
BARBARA JAYNE TRAVERSE
)
Appellant )
- and - ) REASONS FOR
) JUDGMENT BY:
GEOFFREY KINDRED TURNBULL, )
ASTRA PHARMA INC., ASTRA/ )
DRACO and A.B. ASTRA )
) HALLETT, J.A.
)
Respondents )
)
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