MacKenzie v. Kutcher & Samland, 2003 NSSC 076

IN THE SUPREME COURT OF NOVA SCOTIA Citation: MacKenzie v. Kutcher & Samland, 2003 NSSC 076 Date:

(20030403) Docket: S.K. No. 10275 Registry: Kentville Between: Allan MacKenzie Plaintiff v. Stanley Kutcher and Sharon Samland Defendants Judge: The Honourable Justice Allan P. Boudreau Heard: At Kentville, N.S., on December 19, 2002. Counsel: Raymond F. Larkin, Q.C., counsel for Sharon Samland George W. MacDonald, Q.C., counsel for Stanley Kutcher Lynn M. Connors, Counsel for the plaintiff By the Court: INTRODUCTION:

[ 1 ] This case raises the important and often debated issue of the privacy and privilege protection afforded to the sources and information gathered by hospital review committees, both by statute and at common law. The plaintiff, Allan MacKenzie, is the former Administrative Director for Mental Health Services at the Yarmouth Regional Hospital, which is under the governance of the Western Regional Health Board (“WRHB’). Mr. MacKenzie’s employment with WRHB was terminated after a review by the defendants, Dr. Stanley Kutcher and Sharon Samland, and upon their recommendation. Mr. MacKenzie has sued Dr.

Kutcher and Ms. Samland alleging defamation, libel, negligence and negligent misrepresentation on the part of the defendants in the preparation and release of their report and recommendations and thereby causing his termination. The present is an application by Mr. MacKenzie seeking disclosure of the list and

schedule of persons, i.e., staff, interviewed by the defendants and the defendants’ personal notes of those interviews, the questionnaires completed by staff, as well as other personnel files or materials which may have come into their possession. FACTS [ 2 ] Mr. MacKenzie was the Director and Administrator of the Mental Health Unit at Yarmouth Regional Hospital for some 15 years prior to the latter part of 1996. As such he was in charge of all aspects of the delivery of services by and to that Unit.

By the latter part of 1996, complaints or concerns regarding the operation of that Unit had been lodged and expressed at a staff meeting. As a result of those complaints the WRHB approved a “Quality” or “Operational” Review of the Unit to be conducted by a review team which was to be external to the Western Region. The defendants were appointed or retained by the WRHB as the review team. As such they became agents or a committee of the WRHB itself.

The team was to report to the CEO of the WRHB, Victor Maddalena. [ 3 ] It is worth quoting the “Background” and the “Terms of Reference” of the Review in their entirety. BACKGROUND 3 December 1996 Complaint lodged regarding misuse of hospital property, possible misuse of employee paid time and most seriously, potential breach of client and staff confidentiality.

Complaints partially supported by evidence on computer hard drive. 12 December 1996 Staff concerns expressed at staff meeting include - fear and intimidation of staff by Management and Mental Health Director - managerial staff changes with no apparent rationale and positions not being posted - inconsistencies in amount of orientation staff receive - poor management/staff communications including lack of staff meetings - safety issues related to in-patient unit and adolescent crisis unit (both staff and clients) - inconsistent evaluation procedures. ISSUES

1) Quality of care issues in particular client safety and care, also confidentiality of client information. 2) Quality of work-life issues related to inconsistent application of policies, poor communication and perceived fear and intimidation of staff. 3) Misuse of Hospital property. 4) Misuse of employee time. ACTION Quality review to be conducted by review team external to the region. The team will report to the CEO (Mr. V. Maddalena) of the WRHB. Team members : Dr.

Stan Kutcher, Professor and Head of Dalhousie University Department of Psychiatry, Chief of Service, Psychiatry QEII Health Sciences Centre TIME FRAME Six to eight weeks, commencing immediately. PURPOSE OF REVIEW 1) To determine if client care delivered by the Yarmouth Mental Health Services meets accepted standards and whether present policies and practices support safe effective care. 2) To determine if resources allocated to the Yarmouth Mental Health Services are being used only to support these services.

TERMS OF REFERENCE Purpose The Chief Executive Officer of the Western Regional Health Board has requested an external operational review of the Yarmouth Mental Health Program to determine if the services provided meet all acceptable standards. Parameters 1) The review is an internal quality management process and as such the report and information will be internal to the WRHB and presented to the CEO who will have complete discretion over its circulation and use.

2) The review will examine all aspects of care including, but not limited to, treatment strategies, client confidentiality, existing policies, procedures and regulations, adequate client outcomes and client satisfaction. 3) The review will examine whether existing staffing policies and practices support safe, effective care including, but not limited to, staff employment orientation, staffing patterns, job descriptions, evaluation practices, communications and guidelines for practice. 4) The final report will identify strengths and weaknesses with the existing programs and identify gaps.

The report will provide recommendations for improving services including, but not limited to, programming, policies and practices, resource allocation and staff related issues. If possible, the report will identify priorities among the recommendations. Methodology The review will be conducted by recognized experts in Mental Health who do not normally practise within the Western Region. Particular expertise (i.e. legal) can be sought by review members for consultation on specific issues after discussion with WRHB senior staff.

The review will be conducted to determine compliance with the relevant standards from the Mental Health Services

section of the CCHA accreditation standards. The review will be interactive involving all disciplines and support staff. Opportunities for all staff to be involved will be provided. Staff are encouraged and expected to be involved. The review team will liaise with the Director of Regional Community Health Programs, who has administrative responsibility for Mental Health Services within the Western Region. Client input is an essential part of the review and the reviewers will determine how this will be accomplished.

Any and all documentation related to Mental Health Services will be made available to the Review Team and held in confidence by them. Time Frame Approximately six weeks, commencing 1 March 1997. [ 4 ] As part of their operational review and in accordance with the Terms of Reference, the defendants conducted numerous interviews with staff and provided staff with questionnaires to be completed and returned. A majority percentage of staff participated in the review process, either by completing questionnaires or by providing interviews to the defendants.

The Terms of Reference as well as the agreements signed by the defendants provided that all such communications and information were to be kept confidential. This fact was emphasized and impressed upon all staff who participated in the review. [ 5 ] The defendants prepared a detailed report and recommendations which were provided and released to the CEO of the WRHB, Mr. Maddalena. The first of seventy-one recommendations was that Mr. MacKenzie should be immediately dismissed from his position as Administrative Director of the Mental Health Program.

The detailed report has not been placed into evidence on this hearing. The report was initially provided by the defendants to Mr. Maddalena only; however, the questionnaires or notes of interviews were not provided to Mr. Maddalena, or anyone else for that matter, and these have been kept in confidence by the defendants as required by the Terms of Reference, their retainer agreements and the assurances and representations made to the participants.

[ 6 ] Mr. MacKenzie was dismissed by the WRHB in August of 1997. He then sued the WRHB for wrongful dismissal and defamation and that action had been settled prior to this hearing. The particulars of that law suit and settlement are not in evidence on this application and res judicata has not been raised or argued on any issue at this hearing. [ 7 ] Mr. MacKenzie has also commenced the present action alleging, among other things, that the defendants were negligent in the preparation of their report and recommendations to the WRHB and that the filing of this report with the WRHB, through Mr.

Maddalena, constituted a negligent misrepresentation which induced or caused the WRHB to terminate his employment and embarrassed him publicly and damaged his reputation. [ 8 ] Mr. MacKenzie alleges that the defendants were negligent in not investigating the allegations or information provided by staff during interviews or in their questionnaires. He contends that the information provided was false and that he should at least have been given the opportunity to rebut the information or accusations. It is this allegation of negligence which appears to be at the core of the present application. Mr.

MacKenzie has been provided with a copy of the defendants’ full report and recommendations to the WRHB. He now seeks disclosure of the list and

schedule of staff interviews, the defendants’ personal notes of those interviews, the questionnaires completed by staff and other personnel file materials which may have come into the defendants’ possession. These documents have not been disclosed to anyone, including the WRHB. ISSUES : [9]

(1) Are the documents being sought relevant to an issue in the proceedings?

(2) Are the documents being sought exempt from disclosure or production by virtue of

section 60 of the Evidence Act , R.S.N.,S. 1989, c. 154?

(3) Are the documents being requested otherwise exempt from production at common law (“The Wigmore Privilege”)?

(4) An ancillary issue was raised as to whether the discovery transcripts from Mr. MacKenzie’s previous and settled action can be used as evidence on this application (The Implied Undertaking Rule)? ANALYSIS (

a) Relevance [10] Mr. MacKenzie contends that it is necessary for him to have a copy of the scheduled list of interviews, the notes of those interviews and the answered and unanswered questionnaires to be able to make out his case in negligence; and, by implication, to challenge or refute the information provided by staff to the defendants.

A second purpose could be to establish that the information provided by staff did not justify or support the conclusions reached by the defendants and detailed in their report and recommendations. [11] The first test or criteria for disclosure is that the information requested must be relevant to an issue at trial. The first purpose of Mr. MacKenzie, as mentioned above, could prove very problematic as it would involve collateral trials on any information provided to the defendants in order to determine whether it was true or false. A court would be reluctant to embark on such a course.

The second purpose is also problematic, unless the details and conclusions contained in the defendants’ report are clear fabrications, and there is to this point no evidence before the Court to support a claim of fabrication by the defendants and such an allegation was not argued on this application. The Court could then only be left with substituting its view for that of the defendants as to whether the information provided to the defendants should have been reported without conducting investigations of the reports and information received. This can be argued without any disclosure beyond the report itself.

In my view, either purpose or reason advanced in support of disclosure of this information presents serious procedural problems and, by implication, raises the issue of the practical relevance of the disclosure being requested.

[12] I would subscribe to the general approach to the process of determining relevance as described in The Law of Evidence in Canada, 2ed by Sopinka, Lederman and Bryant at § 2.35 where the learned authors state: Although the question of relevance, and admissibility generally, is one for the judge as the trier of law, whether a fact bears the required relationship to another fact is not usually determined by the application of a legal test. It has been said that it is an exercise in the application of experience and common sense.

Thayer believed that logic (not the logic of deductive reasoning, but of knowledge and experience) provided the best guide to the application of this fundamental principle of evidence law. Doherty J.A. in R. v. Watson stated that “relevance” . . . requires a determination of whether as a matter of human experience and logic the existence of “Fact A” makes the existence or non- existence of “Fact B” more probable than it would be without the existence of “Fact A”. If it does then “Fact A” is relevant to “Fact B”.

As long as “Fact B” is itself a material fact in issue or is relevant to a material fact in issue in the litigation, then “Fact A” is relevant and prima facie admissible. And further at § 2.36: The first step in determining what is relevant is to identify the facts that are in issue in the case. It is the substantive law relating to the particular charge or cause of action that forms the basis for this identification exercise.

So, in a civil action for negligent misrepresentation, the plaintiff may first have to prove that a representation was made, that it was false, that it was relied on to the detriment of the plaintiff, that the defendant was negligent in making the statement and that damage was suffered. Not every fact may be in issue. [13] I also subscribe to the following approach advanced by MacDonald, J., (as he then was) in Gould v.

Edmonds Landscape Construction Services Ltd. et al (1997), 1997 CanLII 26099 (NS SC) , 166 N.S.R.(2d) 334 at pp 335 and 336, paragraphs 7 to 9 : [7] All parties acknowledged that in civil matters there has been a long history of liberal disclosure in this province. I refer specifically to Matthews, J.A., in Gould Estate v. Edmonds Landscape & Construction Services Ltd. (1994), 1994 NSCA 34 (CanLII) , 127 N.S.R.(2d) 365; 355 A.P.R. 365 (C.A.), where at p. 369 it is stated: “[13] This court in Coughlan et al. v.

Westminer Canada Holdings Ltd. et al. (1989), 1989 CanLII 199 (NS CA) , 91 N.S.R.(2d) 214; 233 A.P.R. 214 (C.A.), considered the effect of the Rules respecting discovery and inspection of documents (Civil Procedure Rule 18 and 20) After citing rule 1.03, ‘1.03 The object of these Rules is to secure the just, speedy and inexpensive determination of every proceeding.’ the court commented at p. 221: ‘Since the advent of the 1972 Civil Procedure Rules, the courts of this province have consistently decided that provisions respecting oral discovery and the production of documents should be liberally interpreted to grant effect to full disclosure of the facts and issues relevant to the subject matter of the proceedings prior to trial.

The object is to avoid surprise and encourage settlement by the revelation of the facts relied upon by the parties, and thus discourage the need for expensive continued litigation.’” However disclosure cannot be deemed unlimited. The defendant must establish some practical relevance to the materials being sought. [8] Furthermore the concept of relevance cannot be considered in a vacuum. It involves an element of practicality and pragmatism. The

issue requires the court to perform a cost benefit analysis. Specifically I refer to the decision of now the late Justice Sopinka in R. v. Mohan, 1994 CanLII 80 (SCC) , [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241; 89 C.C.C.(3d) 402, where at p. 411 he noted: ‘. . . Relevance is a matter to be decided by a judge as question of law. Although prima facie admissible if so related to a fact in issue that it tends to establish it, that does not end the inquiry. This merely determines the logical relevance of the evidence. Other considerations enter into the decision as to admissibility.

This further inquiry may be described as a cost benefit analysis, that is ‘whether its value is worth what it costs’: see McCormick on Evidence , 3rd Ed. (1984), at p. 544. Cost in this context is not used in its traditional economic sense but rather in terms of its impact on the trial process .

Evidence that is otherwise logically relevant may be excluded on this basis, if its probative value is overborne by its prejudicial effect, if it involves an inordinate amount of time which is not commensurate with its value or if it is misleading in the sense that its effect on the trier of fact, particularly a jury, is out of proportion to its reliability . . .” Although the learned Supreme Court justice was referring to relevance in the context of admissibility, the same practical cost benefit analysis applies to relevance in the context of disclosure . [Emphasis added] [14] Dr. Kutcher and Ms.

Samland take the position that notes of interviews and responses to questionnaires are not relevant because they were not disclosed to anyone, not even Mr. Maddalena, the CEO of the WRHB. The only comments, including any alleged defamatory or libellous ones, revealed to the WRHB are those contained in the Report of the Review presented to Mr. Maddalena by the defendants and this has been fully disclosed to Mr. MacKenzie. Therefore Mr. MacKenzie has all the information which was filed with the WRHB, as per the agreement between the WRHB and the defendants. Mr.

MacKenzie contends that he requires the background information in order to be able to refute that information. With all due respect, I cannot agree. All the information which the defendants reported to the WRHB is contained in the Review report which, as stated earlier has been disclosed to Mr. MacKenzie. [15] Mr. MacKenzie also contends he requires this information in order to establish that the defendants were negligent in the preparation and compilation of the report which they filed with Mr. Maddalena. Again, I cannot agree. Mr.

MacKenzie does not require this information in order to establish that the defendants may have been negligent in not performing investigations or inquiries to determine whether the Report contained incorrect or unfounded references or allegations. These references, as I said, are contained in the Report which has been disclosed, including the Methodology of the Review [16] While at first glace the arguments of Mr.

MacKenzie are appealing and appear logical, on closer examination it becomes apparent that the basis of the alleged and pleaded negligence is the manner in which the information was gathered, i.e., without thorough investigation in order to establish its reliability or truthfulness. It is not whether the information obtained from interviews or questionnaires as outlined in the Report prepared by the defendants can be proven to be true or false. [17] I therefore find that, in the circumstances of this case, the disclosure and documents sought by Mr.

MacKenzie are not of any practical relevance to an issue at trial. Even if the documents were found to be marginally logically relevant, a cost benefit analysis of admissibility, as outlined by MacDonald, J., would clearly fall on the side of non-disclosure and non-admissibility. As I stated earlier, Mr. MacKenzie appears to be suggesting that the Court embark on collateral trials to determine whether the information provided to the defendants and contained in their Report can be proven. This would produce an intolerable negative impact on the trial process in terms of time and costs.

Its probative value, if any, would be so insignificant compared to the inordinate amount of time and costs which would be required to embark on the course proposed by Mr. MacKenzie; i.e., unlimited collateral trials on the information provided to the defendants. [18] I therefore conclude that the disclosure and documents sought are not relevant, and even if they were found to be marginally logically relevant, disclosure ought not to be granted because of the very significant negative impact on the trial process.

Furthermore, in view of the basis of the negligence pleaded, this disclosure is not necessary for a fair and just determination of the issues. [19] I will nevertheless go on to consider whether the disclosure sought is protected by statute or at common law. THE EVIDENCE ACT [20] The defendants contend that the information and disclosure being sought by Mr. MacKenzie is privileged by virtue of

Section 60 of the Evidence Act, supra . Mr. MacKenzie contends that there is no privilege in this instance because the review committee and resulting report do not meet the criteria of the Act , particularly section 60(2). The pertinent sections of the Act are quoted following:

60(1) In this Section, (a) “legal proceeding” means any civil proceeding, inquiry, proceeding before any tribunal, board or commission or arbitration, in which evidence is or may be given, and includes an action or proceeding for the imposition of punishment by fine, penalty or imprisonment for the violation of a Provincial enactment; (b) “witness” includes every person who, in the course of a legal proceeding, is examined viva voce for discovery or is cross-examined upon an affidavit made by that person, answers any interrogatories or makes an affidavit as to documents or is called upon to answer any question or produce any document, whether under oath or not.

(2) A witness in any legal proceeding, whether a party thereto or not, is excused from answering any question as to any proceedings before, or producing any report, statement, memorandum, recommendation, document or information of, or made by (

a) a research committee of a hospital; (

b) a hospital committee established for the purpose of studying or evaluating medical or hospital care or practice in a hospital; or (

c) a research committee recognized by the Minister of Health and Fitness and approved for the purpose of this Section, and that is used in the course of, or arising out of, any study , research or program carried on by a hospital or any such committee for the purpose of education or improvement in medical or hospital care or practice . (3) Subsection (2) does not apply to original medical and hospital records pertaining to a patient. (4) subject to subsection (2), a witness in any legal proceeding who is or has been a member of, has participated in the activities of, has made a report, statement, memorandum or recommendation to, or has provided information to a committee referred to in subsection (2), is not excused from answering any question or producing any document that the witness is otherwise bound to answer or produce.

R.S., c. 154, s. 60. [Emphasis Added] [21] Mr. MacKenzie has argued that the primary purpose of the Review Committee was not to study or evaluate medical or hospital care or practice in the Mental Health Services Unit of the Yarmouth Regional Hospital. He contends the Committee’s overriding purpose became an investigation into his position and himself personally and that, as such, it is not captured by section 60(2)(

b) and the defendants therefore cannot be afforded its protection. If it is captured by section 60(2)(

b) and (c), then it would appear that a number of the causes of action pleaded may be barred by

section 61 of the Act which provides as follows: 61 Neither (

a) the disclosure of any information or of any document or anything therein, or the submission of any report, statement, memorandum or recommendation, to any committee referred to in subsection (2) of

Section 60, for the purpose of its being used in the course of any study, research or program carried on by a hospital or any such committee for the purpose of education or improvement in medical or hospital care or practice; nor (

b) the disclosure of any information, or of any document or anything therein, that arises out of any such study, research or program, raises or creates any liability on the part of the person making the disclosure or submission unless such disclosure or submission is made

with malice. R.S., c. 154, s. 61. [22] Mr. MacKenzie contends that the review in question was not to evaluate and improve medical or hospital care or practice as specified in section 60(2)(b). He says it was primarily an administrative review because it focussed on his position as Administrator of the Unit. The line of cases cited in support of Mr. MacKenzie’s position are dependant on the nature of the inquiry or review being conducted. If it was a review of a particular incident or incidents then it is usually not protected by section 60(2)(

b) There can be little doubt that the Administrator’s position and performance was part of the review, but, with all due respect, I cannot agree that that was its primary purpose or that it functioned primarily as such.

One only has to look at the Background, the Terms of Reference, the Methodology and the resulting report and recommendations and it becomes clear that the review was to encompass all aspects of the delivery of services by the Mental Health Unit. [23] I find that the primary and overriding purpose of the review and the recommendations and the use to which the report was put were to study, evaluate and improve the medical and hospital care and practice in the Mental Health Unit.

Assessing patient care and resulting satisfaction was a basic objective of the review and the report and recommendations. [24] For these reasons I find that the defendants are excused, by virtue of section 60(2) of the Evidence Act , supra , from producing the information sought by Mr. MacKenzie on this application, regardless of any relevance. THE “WIGMORE PRIVILEGE” [25] The defendants have also contended that the information and documentation sought is privileged at common law.

The conflicting considerations surrounding the granting of the privilege versus disclosure is well summarized by the following quote from The Law of Evidence in Canada (1992) , page 623, cited by Mr. MacKenzie: “The exclusionary rule of privilege, however, rests upon a different foundation. It is based upon social values, external to the trial process. Although such evidence is relevant, probative and trustworthy, and would thus advance a just resolution of disputes, it is excluded because of overriding social interests.

In any discussion about privilege, one must keep in mind a constant conflict between two countervailing policies. On the one hand, there is a policy which promotes the administration of justice requiring that all relevant probative evidence relating to the issues be before the Court so that it can properly decide the issues on the merits. On the other hand, there may be a social interest in preserving and encouraging particular relationships that exist in the community at large, the viability of which are based upon confidential communications.

Normally these communications are not disclosed to anyone outside that relationship. Anglo-Canadian Law has, for the most part, given priority to the administration of justice over external social values. In fact, the trend in Canada is to limit the recognition of privilege in favour of the search for truth in the judicial process.” [26] Four criteria for granting this privilege had been laid out by Wigmore in volume 8 of Wigmore on Evidence, 3rd ed., (McNaughton Revision, 1961) para 2285 and these criteria were approved by Spence, J., in Slavutych v.

Baker , 1975 CanLII 5 (SCC) , [1976] 1 S.C.R. 254 at p. 260 and are quoted following: “

(1) The communications must originate in a confidence that they will not be disclosed.

(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

(3) The relation must be one which in the opinion of the community ought to be sedulously fostered .

(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.” These four criteria have continued to be applied by the courts across Canada and by the Supreme Court of Canada. [27] The fourth criteria appears to be the one which has fostered the most controversy or debate. This criteria was commented upon by McLachlin, J., (as she then was) in M.(A.) v.

Ryan , 1997 CanLII 403 (SCC) , [1997] 1 S.C.R. 157 at p. 10 as follows: The fourth requirement is that the interests served by protecting the communications from disclosure outweigh the interest of pursuing the truth and disposing correctly of the litigation. This requires first an assessment of the interests served by protecting the communications from disclosure . . . As noted, the common law must develop in a way that reflects emerging Charter values. It follows that the factors balanced under the fourth part of the test for privilege should be updated to reflect relevant Charter values.

One such value is the interest affirmed by s. 8 of the Charter of each person in privacy. Another is the right of every person embodied in s. 15 of the Charter to equal treatment and benefit of the law . . . . These criteria, applied to the case at bar, demonstrate a compelling interest in protecting the communications at issue from disclosure. More, however, is required to establish privilege. For privilege to exist, it must be shown that the benefit that inures from privilege, however great it may seem, in fact outweighs the interest in the correct disposal of the litigation.

At this stage, the court considering an application for privilege must balance one alternative against the other. The exercise is essentially one of common sense and good judgment. This said, it is important to establish the outer limits of acceptability. I for one cannot accept the proposition that “occasional injustice” should be accepted as the price of the privilege. . . .

And at page 11 It follows that if the court considering a claim for privilege determines that a particular document or class of documents must be produced to get at the truth and prevent an unjust verdict, it must permit production to the extent required to avoid that result.

On the other hand, the need to get at the truth and avoid injustice does not automatically negate the possibility of protection from full disclosure. [28] In that case McLachlin, J. upheld the British Columbia Court of Appeal which had ordered partial disclosure, with conditions, of a plaintiff patient’s psychiatric records for the purpose of a law suit against her former psychiatrist. It also appears the Supreme Court of Canada and the British Columbia Court of Appeal were of the view that at least partial disclosure was necessary to prevent a possible injustice.

In that case it was the plaintiff herself who was attempting to withhold evidence relevant to her claim for damages for alleged sexual and psychological abuse by her former psychiatrist. [29] In the present case I have already found that the disclosure sought is not practically relevant to an issue at trial and that it is not necessary for a fair and just determination of the issues. [30] With regard to the other three criteria of the “Wigmore Privilege”, it is clear from the evidence presented at this hearing that the communications sought originated in a confidence that they would not be disclosed.

This was contained in the Terms of Reference for the review, in the defendant’s retainer agreements and it was impressed upon all the staff whose participation was sought and who participated in the interviews and the questionnaires. This information and documentation was not even revealed to the WRHB. [31] I also find that the element of confidentiality is essential to the full and satisfactory maintenance of the relations between hospital staff and review committees. The staff were assured their communications would be held in strict confidence.

If the communications would not have been confidential, the staff would most likely not have participated in the review process. This is based on common sense and experience and it is clearly supported and endorsed in the jurisprudence. The same applies to the third criteria.

The relation is one which, in the opinion of the community ought to be sedulously fostered. Medical and hospital care are at the top of the list of concerns in the community. [32] In Re: Freedom of Information (1996), 1996 CanLII 7262 (NS SC) , 152 N.S.R.(2d) 354 , Justice MacAdam commented on the applicability of privilege in a hospital setting. Notwithstanding that the case dealt with an appeal under the Freedom of Information and Protection of Privacy Act , his comments are pertinent to the present application.

He commented on the distinction between investigations of particular incidents which are or become the subject of litigation as opposed to information gathered by a review committee for the purpose of studying and evaluating hospital care and practice for improvement purposes. In doing so he emphasized the inherent difference in such reviews and the importance of fostering these relations and reviews for the community.

He quoted with approval at para 86 the Saskatchewan Court of Appeal as follows: 86 The distinction between the records of a hospital disclosing the facts relating to the care, assessment or diagnosis and treatment of a patient, as opposed to the examination and evaluation of the facts for the purpose of both education and improvement of care, practice and services in a hospital was recognized by the Saskatchewan Court of Appeal in Kerr v. Saskatchewan (Minister of Health) , 1994 CanLII 4586 (SK CA) , [1994] 7 W.W.R. 153.

Sherstobitoff, J.A., in delivering the judgment of the Court, at pp. 159, 160 and 161, said: On the application of the Wigmore rules approved in Slavutych , he determined that the committee documents were not privileged. On this analysis , Finley stood, at most, for the proposition that the records of a hospital discipline committee in respect of a specific incident were not privileged from production to the person injured in the incident. . . . . Communications of the facts of an incident, whether between hospital personnel or involving third parties, do not normally originate in confidence.

It cannot conceivably be said it is in the public interest that such facts should be concealed from a litigant who alleges that he has been injured as a result of that incident. Examination and evaluation of the facts of an incident for the purpose of the education of hospital personnel and the improvement of care, practice and services of a hospital is quite a different matter. This function includes peer review, criticisms, matters of opinion, and recommendations for changes. Most of these things will originate in the expectation that they will be held in confidence.

The confidentiality is necessary to ensure free and frank discussion, expression of opinion and recommendations for changes without the fear that such expression will be used for the benefit of a private litigant. No one can gainsay that the objectives are desirable for the community in general and thus can be said to serve the public interest.

Certainly, a good argument may be made that such communications do meet the Wigmore criteria for privilege. [Emphasis Added] And at para 87: 87 In respect to the communications by the appellants to the authors there is no question that from their perspective they originated in a confidence they would not be disclosed. This condition of confidentiality was, and is, viewed as essential to the full and satisfactory maintenance of the relationship between the appellants and the Regional Hospital.

This relationship is also one which ought to be sedulously fostered and on the evidence, injury will inure to this relationship by the disclosure of these communications in these circumstances, and although the disclosure of personal comments and evaluations may be of assistance to the family in respect to any future litigation, it is not necessarily information that is required for this purpose. [33] In my opinion the above quoted comments of Justice MacAdam are very appropriate to the case at bar.

In the final analysis I find that all four criteria of the “Wigmore Privilege” have been met and that the privilege claim has been made out by the defendants and that disclosure should not be ordered. THE IMPLIED UNDERTAKING RULE

[34] The defendant, Dr. Kutcher, objected to the admissibility on this application of the discovery examination of the defendants from the previous settled litigation by Mr. MacKenzie against the WRHB. At the beginning of the hearing I ruled that those discovery transcripts were not necessary or relevant to any issue on this application and I removed them from the affidavit of Mr. MacKenzie and purged them from the file. It is therefore not necessary to rule further on this issue at this time.

CONCLUSION [35] I have found that the disclosure sought is not of any practical relevance to an issue at trial, that the information or documents sought are protected from production both under the Evidence Act, supra , and at common law in accordance with the “ Wigmore Privilege”. The application of Mr. MacKenzie is therefore dismissed. I am also satisfied that costs of this application should be in the cause. [36] I will grant an order accordingly prepared by counsel for the defendants and consented to by counsel for all parties. Boudreau, J.