Lema J. dismissed the Plaintiffs’ Rule 5.13 Application (the “Application”) to compel the Defendant’s psychologist to disclose to the Plaintiffs the Defendant’s complete patient file, which contained the Defendant’s pre-existing mental state (the “Records”).

Lema J. took note of the fact that the Plaintiffs did not show that they had made any request for the Records to the Defendant directly or, failing production, any Application to compel the Defendant to produce the Records. Citing CNOOC Petroleum North America ULC v 801 Seventh Inc, 2023 ABCA 97, Lema held that that alone would be sufficient to dismiss the Application, since Rule 5.13 implicitly requires that the Records “cannot be obtained from a party”.

Lema J. continued to consider, under Rule 5.2, whether the Records were relevant and material. Citing Terrigno v Butzner, 2023 ABCA 124, Lema J. commented that relevance is determined primarily by the Pleadings, and materiality relates to whether the information can help, directly or indirectly, to prove a fact in issue. There is no fixed standard as to what is material and an element of judgment is required.

Lema J. found that the Plaintiffs, who had already obtained the psychologist’s synopsis of the Defendant’s condition (the “Synopsis”), did not provide evidence to show that the Defendant’s pre-existing mental state was likely to add anything to the Synopsis, and thereby failed to prove that the Records were material. More fundamentally, the Plaintiffs did not show that the Records were relevant to the issue at bar. Accordingly, Lema J. dismissed the Application.