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Court does not compel medical malpractice plaintiffs to produce irrelevant child welfare files

Files were subject to relevance and privilege qualifications, Ontario court says

Court does not compel medical malpractice plaintiffs to produce irrelevant child welfare files
Defendants sought to compel plaintiffs to comply with undertakings relating to child welfare files

In a recent medical malpractice action, the Superior Court of Justice of Ontario dismissed the defendants’ motion to compel the plaintiffs to comply with their undertakings to produce child welfare files.

In Dalcourt-Wilkins v. Gupta, 2021 ONSC 3160, the plaintiffs initiated a medical malpractice action that assailed the labour, delivery and neonatal care of the minor plaintiff born September 2011. The minor plaintiff’s mother and grandmother, as her caretakers, submitted that the defendants’ medical services breached the standard of care and led to devastating and permanent injuries and disabilities that prevented the minor plaintiff from leading an independent life. The plaintiffs sought $35,000,000 in damages, which included general damages and special damages.

The mother and grandmother were examined during the discoveries in September 2019, April 2020, and May 2020. The mother said that when she was pregnant with her second child, the Children’s Aid Society became involved with her for reasons unrelated to the care of the minor plaintiff. The society continued doing check-ups when the minor plaintiff lived for around two years with the grandmother until the grandmother complained, and the society closed its file. The plaintiffs gave an undertaking to produce the society’s file, subject to relevance and privilege qualifications.

The mother then said that she lived for some time with a friend on the Mississauga First Nation, at which point Nogdawindamin Family and Community Services got involved. The physician defendants also sought an undertaking for the Nogdawindamin file.

The plaintiffs provided the defendants with over 3,500 pages of medical records and documentation regarding the minor plaintiff’s birth and the medical care she had received, as well as numerous reports on standard of care, causation, damages and the minor plaintiff’s present and future care needs.

In July 2020, the plaintiffs’ counsel said that he was refusing the child welfare files based on relevancy. Plaintiffs’ counsel submitted that the Nogdawindamin file was subject to the same qualifications applicable to the society’s file and produced a closing note from the society that indicated that the mother was providing good care to both of her children.

In the present proceedings, the moving defendants asked for an order to compel the plaintiffs to comply with the undertakings relating to the child welfare files.

The Superior Court of Justice of Ontario dismissed the defendants’ motion, finding that the undertaking to produce the Nogdawindamin file was subject to the same relevance and privilege qualifications applicable to the society’s file, as advised by the plaintiffs’ counsel in July 2020.

The court disagreed with the moving defendants’ contention that the child welfare files were relevant and essential to matters including the minor plaintiff’s large special damages claim, the source of the minor plaintiff’s difficulties and the mother and grandmother’s claims relating to general damages and the loss of companionship.

The court emphasized that child welfare involvement is very intrusive and that child welfare files contain deeply personal and irrelevant information, the disclosure of which would prejudice the lives of the adult plaintiffs and others involved.

It would be disproportionate to compel the disclosure of entire child welfare files to access the information sought by the moving defendants, which could be found in other less sensitive documentation, including the expert reports and information from other social or governmental agencies, the court found.

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