A decision released yesterday by the Ontario Superior Court of Justice’s Divisional Court has overturned a Superior Court ruling that limited when civil lawyers can share compelled medical records and other personal information with defence counsel in the same case.
In S.C. v. N.S., 2017, ONSC 5566, a young woman had sued her former boyfriend for damages in an alleged sexual assault case, and criminal charges had also been brought against him. Although the civil action was started later, the criminal and civil proceedings ended up running concurrently. In compliance with the plaintiff’s documentary discovery obligations under the Rules of Civil Procedure, very private records, including medical, were produced to her former boyfriend.
Without the knowledge of the plaintiff or her counsel, the defendant and accused in the case had shared the plaintiff’s documents produced in the civil case with his criminal defence counsel, who then relied on these records at trial. Following an objection to this, the criminal trial was adjourned. The defendant’s civil defence counsel subsequently brought a motion seeking an after-the-fact declaration that sharing the plaintiff’s production for the civil case for purposes of the criminal defence was proper.