“In addressing the non-party disclosure motion as it relates to the decision-making and parenting time issues in dispute, I am guided by the underlying requirement to consider the best interests of the children: Divorce Act, RSC 1985, c. 3 (2nd Supp), ss. 16(1); Vecchio v. Abdelgawad, 2017 ONSC 5815 at para 3. In determining the parenting-related issues based on the children’s best interests, the court should have the best available information for everyone involved in the children’s care and upbringing: Noel v. Noel, 2015 ONSC 4561 at para 38.
Rule 19(11) (Document in non-party’s control) of the Family Law Rules provides for the production of documents from a non-party as follows:
If a document is in a non-party’s control, or is available only to the non-party, and is not protected by a legal privilege, and it would be unfair to a party to go on with the case without the document, the court may, on motion with notice served on every party and served on the non-party by special service,
(a) Order the non-party to let the party examine the document and to supply the party with a copy at the legal aid rate; and
(b) Order that a copy be prepared and used for all purposes of the case in stead of the original.
Deciding a motion for non-party production calls for a multi-step analysis.
a) Relevance
The threshold issue for a production order is relevance. As stated in M.M-A., P.A., M.D. and A.D. v. E.L., Kunuwanimano Child and Family Services, Attiwapiskat First Nation, 2020 ONSC 4597 at para 22:
The preliminary question to be determined when considering a production order is relevance. Rule 19(11) does not specifically refer to relevance; it is necessarily implied. See Catholic Children Aid Society of Toronto v. K. (T.) 2004 CanLII 16117 (ON CJ), [2004] O.J. No 61, 50 R.F.L. (5th) 285 OCJ. If relevance is challenged, then the inquiry begins there. Since the particular contents of the records are not yet known, the assessment of relevance often entails a degree of speculation, but more than mere speculation is required to prevent unwarranted so-called fishing expeditions. The question then becomes what threshold of relevance pertains?
As the non-party records at issue contain private or highly sensitive information, I accept that the “likely relevant” threshold should apply in deciding relevance: Kunuwanimano at para 24; Children’s Aid Society of Brant v. P.(N.M.), 2016 ONCJ 266 at para 38.
b) Privilege
Rule 19(11) requires the court to consider any legal privilege that might apply to exclude the non-party production sought.
There are two broad classes of privilege, namely “class” privilege and “non-class” or “case-by-case” privilege. Class privilege is well-established and commonly refers to solicitor-and-client communications and settlement discussions between parties to litigation. Non-class or case-by-case privilege arises from a special relationship that gives rise to a privileged status, such as the therapeutic relationship between a patient and a psychiatrist. The onus is on the person claiming a privilege to demonstrate that the communications should not be disclosed: Children’s Aid Society of Ottawa v. N.S., 2005 CanLII 7661 (ONSC) at para 19; Children’s Aid Society of Halton Region v. T.C.B., 2012 ONCJ 69 at para 42.
The common law permits the court to consider whether privilege exists where “reason, experience and application of the principles that underlie the traditional privileges so dictate” on a case-by-case basis: M.(A.) v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 SCR 157 at para 20. In Slavutych v. Baker, 1975 CanLII 5 (SCC), [1976] 1 SCR 254 at 260, the Supreme Court approved the following four-part criteria set out in Wigmore on Evidence, vol. 8 (McNaughton rev. 1961), §2285 to establish a case-by-case privilege:
a. The communication must originate in a confidence;
b. The confidence must be essential to the relationship in which the communication arises;
c. The relationship must be one which should be “sedulously fostered’ in the public good;
d. If all these requirements are met, the court must consider whether the interests served by protecting the communications from disclosure outweigh the interest in getting at the truth and disposing correction of the litigation.
If all four (4) of the Wigmore criteria are met, a privilege may be said to exist to prevent the disclosure of the subject records or information.
The Supreme Court of Canada affirmed the Wigmore test in Ryan at para 20. In that case, the victim of a sexual assault by a psychiatrist brought a civil action for damages. The former psychiatrist sought disclosure of the victim’s new psychiatrist’s reports and notes. In describing the Wigmore test, the Supreme Court in Ryan at para 37 rejected a blanket approach to privilege and held that a court may determine that psychiatrist-patient records are privileged in appropriate circumstances by carefully considering the issue of privilege on a case-by-case basis:
My conclusion is that it is open to a judge to conclude that psychiatrist-patient records are privileged in appropriate circumstances. Once the first three requirements are met and a compelling prima facie case for protection is established, the focus will be on the balancing under the fourth head. A document relevant to a defence or claim may be required to be disclosed, notwithstanding the high interest of the plaintiff in keeping it confidential. On the other hand, documents of questionable relevance or which contain information available from other sources may be declared privileged. The result depends on the balance of the competing interests of disclosure and privacy in each case. It must be borne in mind that in most cases, the majority of the communications between a psychiatrist and her patient will have little or no bearing on the case at bar and can safely be excluded from production. Fishing expeditions are not appropriate where there is a compelling privacy interest at stake, even at the discovery stage. Finally, where justice requires that communications be disclosed, the court should consider qualifying the disclosure by imposing limits aimed at permitting the opponent to have the access justice requires while preserving the confidential nature of the documents to the greatest degree possible. [Emphasis added]
A production order should not permit “fishing expeditions” where a compelling privacy interest is at stake, even at the discovery stage: Ryan at para 37.
The law of privilege is applied to reflect the social and legal realities of our time. This includes addressing the concerns over the wrongs perpetrated by sexual abuse, the serious effect of such abuse on victims, and the importance of supporting victims with care and treatment to address the aftermath of such abuse: Ryan at para 21.
The court may flexibly craft production orders to safeguard privacy concerns and ensure that relevant disclosure is available to the parties: Ryan at paras 33 and 37; Kunuwanimano at paras 38 and 48. The goal is to allow for proportionate and efficient production while guarding against the injustice of cloaking the truth. This may be accomplished by disclosing a limited number of documents, removing non-essential materials, limiting the dissemination or copying of records, and otherwise minimizing any damage to protected relationships: Ryan at para 33.
c. Fairness
Once the issue of privilege has been determined, the court must still decide the second part of the Rule 19(11) test, namely whether it would be unfair for a party to proceed to trial without the documents sought.
In determining this second part of the Rule 19(11) test, the factors established by the Court of Appeal in Attorney General for Ontario v. Stavro (1995), 1995 CanLII 3509 (ON CA), 26 OR (3d) 39 (CA) are considered. These factors include the following:
a. The importance of the documents in the litigation;
b. Whether disclosure or production can be postponed until trial; is it necessary to have production at the discovery stage to avoid unfairness;
c. The position of the non-parties with respect to production;
d. The availability of the documents or their informational equivalent from some other source; and
e. The relationship of the non-parties from whom production is sought to the litigation and the parties to the litigation.
See also: Kunuwanimano at paras 42-43; Girdlestone v. Bentley, 2020 ONCJ 444 at para 26.”