IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110420

Docket: 83235

Registry:
Kelowna

Between:

R.C.L.

Plaintiff

And:

S.C.F.

Defendant

Before:
Master Young

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: This is an application for production of Elizabeth
Fry records in a personal injury case. These records relate to the abuse the
plaintiff suffered as a child and, presumably, include confidential details of
that abuse as well as recommendations of a counsellor. The production is being
opposed on the basis that the records are not relevant and that they are
privileged. The application is being brought under our new Rule 7-1(1). The
relevancy test in the Supreme Court Rules has now narrowed to one of
direct relevance, to use the words of the section, "to prove or disprove a
material fact", and it is no longer a chain of inquiry test related to any
matter in question. I am not satisfied that these records will assist in proving
any material fact.

[2]            
The defendant already knows that the plaintiff was abused as a child;
that this event caused him emotional pain; that he attempted suicide; that he
sought help from the Elizabeth Fry Society; that he missed work prior to the
motor vehicle accident; and that he suffers from borderline personality
disorder and depression. I also note a record that his brother passed away
shortly before this accident. The defendant has obtained volumes of clinical
records. I do not see how the detail of the counselling at Elizabeth Fry or the
details of the abuse are going to add anything to the information they already
have. It is clearly a request based on a chain of inquiry that there might be
something relevant in those records.

[3]            
Everyone agrees that the Wigmore criteria that is set out in the Slavutych
v. Baker decision is the relevant test to determine if the records are
privileged, and I am not going to repeat those four criteria, but criteria
1 to 3 were conceded to exist, and there was some debate in submissions about
whether criteria 4 has been met, and that says that (as read in):

The injury that would inure to
the relationship by the disclosure of the communications must be greater than
the benefit thereby gained for the correct disposal of the litigation.

[4]            
I agree with Mr. Williams that the case of M. v. Martinson
is directly on point. Paragraph 4 of the Wigmore criteria has been
interpreted in the broad sense as one of a public policy issue. Would the
public interest and the proper administration of justice outweigh in importance
any public interest that may be protected by upholding the claim for privilege?
As Master Joyce (as he then was) said at para. 18 (as read in):

I find there is great public
interest in encouraging victims of abuse to seek counselling and to be assured
of the confidentiality of that communication. The public interest is served if
that confidentiality is fostered to the greatest possible degree.

[5]            
What of the interests of justice? Is the central issue in this case
before me today in this lawsuit the same as might be contained in those
records? I think not. There have already been several other sources outlining
this plaintiff’s prior psychological problems. These records are at best
peripherally related to the material issue. I am not convinced that in the
interests of justice, I should breach that confidential relationship at
all, not even to review those records myself and certainly not under this new
narrow test for document production in our Rules of Court.

[6]            
So on that basis, I am denying the application.

Master
Young