Background & purpose of the system 1 basic institutions, processes, and players 3
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| Other “Case by case” Privileges (see also Union at para 42; Lizotte para 32)
based on confidentiality: Situations where people have an expectation that their communication will remain private. SCC in Ryan: “the law of privilege may evolve to reflect the social and legal realities of our time. One such reality is the law`s increasing concern with the wrongs perpetrated by sexual abuse and the serious effect such abuse has on the health and productivity of the many members of our society it victimizes. Another modern reality is the extension of medical assistance from treatment of its physical effects to treatment of its mental and emotional aftermath through techniques such as psychiatric counselling. “ Determined by the Wigmore Test, cited in:Union Carbide; Lizotte (1) Communication must originate in confidence (expectation will not be disclosed) Ryan: Here, found clearly established. Sexual abuse victim had clearly communicated to their psychiatrist that all communications should stay confidential, and they agreed would do everything to keep confidential Mere possibility that court might order disclosed is not enough; does not change that communications originated and were intended to be confidential (2) Confidence must be essential to the relationship in which the comm arises Ryan Here, again found clearly established. Sexual abuse victims psychiatrist submitted confidentiality was essential to the continued existence and effectiveness of the therapeutic relations between a psychiatrist and a patient seeking treatment for the psychiatric harm resulting from sexual abuse. Submitted that once psychiatrist-patient confidentiality was broken and the psychiatrist becomes involved in the patient’s external world, the “frame” of the therapy is broken. At that point, it was the sexual abuse victims psychiatrists practice to discontinue psychotherapy with the patient. Submitted the result is both confusing and damaging to the patient. (3) Relationship must be sedulously fostered in the public good In Union Carbid first 3 steps found to be prima facie established by facts that parties had not only opted to engage in a confidential DR process (mediation), but also signed an unambigious agreement with an absolute confidentiality clause. At issue was whether post mediation (where issues were settled on), whether said communications/information could continually be cloaked by settlement privilege Ryan Here, again found clearly established. Victims of sexual abuse often suffer serious trauma, which, left untreated, may mar their entire lives. It is widely accepted that it is in the interests of the victim and society that such help be obtained. The mental health of the citizenry, no less than its physical health, is a public good of great importance. Just as it is in the interest of the sexual abuse victim to be restored to full and healthy functioning, so is it in the interest of the public that she take her place as a healthy and productive member of society. (4) The injury that would inure to the relation by the disclosure of the communications must be greater than (outweigh) the benefit thereby gained for the correct disposal of litigation E.g. in Ryan, communication between sexual abuse victim (abused by another psychiatrist) and psychiatrist satisfied parts 1-3 but partial disclosure was deemed to be required due to importance of litigation. Balancing: The interest in preserving the confidentiality of the communications here at issue was, as discussed, compelling. On the other hand, the communications might be expected to bear on the critical issue of the extent to which the respondent Dr. Ryan’s conduct caused the difficulties the appellant was experiencing. A court, in a case such as this, might well consider it best to inspect the records individually to the end of weeding out those which were irrelevant to this defence. However, the alternative chosen by the Court of Appeal in this case of refusing to order production of one group of documents and imposing stringent conditions on who could see the others and what use could be made of them cannot be said to be in error. In the end, the only persons to see the documents in question will be the lawyers for the respondent Dr. Ryan and his expert witnesses. Copies will not be made, and disclosure of the contents to other people will not be permitted. In short, the plaintiff’s private disclosures to her psychiatrist will be disclosed only to a small group of trustworthy professionals, much in the fashion that confidential medical records may be disclosed in a hospital setting. I am not persuaded that the order of the Court of Appeal should be disturbed. Reasons Common law must develop in a way that reflects emerging Charter values- including s. 8 (privacy) and s. 15 (equal treatment and benefit of the law) factors which may properly be considered in determining the interests served by an order for protection from disclosure of confidential patient-psychiatrist communications in sexual assault cases. The intimate nature of sexual assault heightens the privacy concerns of the victim and may increase, if automatic disclosure is the rule, the difficulty of obtaining redress for the wrong. Moreover, the victim of a sexual assault is placed in a disadvantaged position as compared with the victim of a different wrong. The result of the above may be that the victim of sexual assault does not obtain the equal benefit of the law to which s. 15 of the Charter entitles her. She is doubly victimized, initially by the sexual assault and later by the price she must pay to claim redress -- redress which in some cases may be part of her program of therapy. However, must still outweigh the benefit gained for the correct disposal of litigation- here, litigation was important to public at large Disclosure does not need to be “all or nothing” Policy of Privilege Is policy fair? Have we struck the right balance between disclosure and protection? Does it facilitate meaningful justice, and access to justice? Should government / corporations benefit from privilege in same way as individuals? Link with ethical obligations of lawyers to client, court and public RE: Starr discovery exercise (what would do with documents given stars discovery obligation to produce documents) Employment records First question to ask wrt to discovery: is it relevant? Does relate to any of the issue in the action (r 30-30.1) How to determine if relevant? Check if raised in pleadings in SoC (here, likely yes, by virtue of pattern of deterioration of employment situation claimed) Privileged? No Dominant purpose litigation? No Settlement related? No Love notes Relevant? Could go either way- if an argument in pleadings is a loss of enjoyment of life, and part of argument is homelive/personal relationship has suffered, may be relevant. If put life into issue during pleadings in this sort of way Privileged? Likely not. Could potentially run through wigmore to address case-by-case privilege issue CASE MANAGEMENT & ADRDownload 217.64 Kb. Share with your friends:
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