MBH v CKI, 2023 ABKB 284

Marion J

1.2: Purpose and intention of these rules
1.4: Procedural orders
1.7: Interpreting these rules
5.33: Confidentiality and use of information
5.6: Form and contents of affidavit of records
6.28: Application of this Division
6.7: Questioning on affidavit in support, response and reply to application

Case Summary

Following a Case Management conference, the Parties were under procedural direction to resolve certain matters arising from their divorce. The Parties applied before Marion J. to resolve issues of disclosure and sought a restricted Court access Order.

Concerning the disclosure issues, the Court was asked to decide whether: (a) the Plaintiff should be compelled to disclose redacted portions of certain medical records, (b) the Plaintiff should provide medical records not previously produced, and (c) the Court should control the Defendant’s access to the Plaintiff’s medical records.

Regarding the first issue, Marion J. directed the Plaintiff to produce unredacted copies of her medical records. Counsel for the Plaintiff had redacted certain medical records provided by the Plaintiff as part of her answers to Undertakings at Questioning on Affidavit. Rule 6.7 allows a party to question an Affiant adverse in interest on an Affidavit. Further, by virtue of the Foundational Rules 1.4 and 1.7, the Court has the discretion to order the disclosure of redactions on records arising from Undertaking responses given at Questioning on Affidavit.

Justice Marion canvased the case law on redactions and found that parties are entitled to redact information, including sensitive medical information. However, parties must engage in “redactions of non-privileged irrelevant information from otherwise relevant and material records” only in three circumstances: (1) when the redacted information is clearly irrelevant; (2) as a matter of proportionality under Rule 1.2, where the protection of irrelevant information outweighs the delay or costs associated with the redactions; or (3) when the redactions do not render the rest of the record difficult to understand or misleading. After reviewing the various medical records at issue, Marion J. ordered the Plaintiff to disclose redactions that were relevant and material to the issues raised by the Parties in their Affidavits and parenting Applications.

Regarding the second disclosure issue, Marion J. ordered the Plaintiff to produce further medical records, even if they dealt with the Plaintiff’s alcohol intoxication levels, because they were relevant and material to the parenting Applications and the children’s best interests. The Plaintiff could have been compelled to produce the records either by a request for Undertakings at Questioning on Affidavit, or under Rule 12.38(2), which states that in family law matters a party must file and serve a notice to produce an Affidavit of Records on the other party before it can compel production of an Affidavit of Records. Justice Marion ordered production of further records under Rule 5.6(1)(b)(ii), which imposes an obligation on a party to prepare an Affidavit of Records and disclose all relevant and material records under that party’s control.

With respect to the third disclosure issue, Marion J. found while the Plaintiff’s medical records were protected by Rule 5.33 and the implied undertaking common law rule, additional protectional measures were appropriate in this case. Rule 5.33 recognizes that records produced in an Action are confidential such that they may not be used for collateral purposes, but Rule 5.33 covers information disclosed only under the Part 5 Questioning. Justice Marion clarified that while the implied undertaking rule did not extend to Pleadings, exhibits attached to Affidavits, or exhibits entered on the Court record at Trial, it did extend to records provided as part of Undertaking answers to Questioning on Affidavit. Thus, the Court used the Alberta Court of King’s Bench Family Law Practice Note 7 to order additional protectional measures so that the Defendant could access privately disclosed medical records in the Action.

Turning its attention to the Court access issue, Marion J. denied the Plaintiff’s request for a restricted Court access Order. The Court has jurisdiction to grant such Orders under Rules 6.28-6.38. However, the Supreme Court of Canada recast the test for discretionary limits on Court openness in Sherman Estate v Donovan, 2021 SCC 25. In order obtain a Court access Order, a party must establish that: (1) the Court openness principle poses a serious risk to an important public interest; (2) the Order sought is necessary to prevent a serious risk to the identified interest because reasonable alternative measures will not prevent the risk; and (3) as a matter of proportionality, the benefits of the Order outweigh its negative effects.

The Court found that the Plaintiff satisfied the first step because the protection of the specific sensitive information contained in her medical records gave rise to an important public interest, “namely the best interests, privacy and protection of the Children”. However, the Court found that there were reasonable alternatives to the restricted Court access Order, and thus the second step failed. For example, Family Law Practice Note 10 provided a pre-emptive layer of protection which balanced the right to privacy of sensitive information with the open Court principle. Further, and in order to protect children, Courts “sometimes use initials or take other steps to anonymize Reasons for Decision to reduce the risk of the partners or children being identified”. Lastly, the Plaintiff did not satisfy the third step. Justice Marion held that the benefits of protecting the Plaintiff and the children’s interests through Practice Note 10, and the “anonymization of these Reasons to protect the Children, outweighed the harmful effects to the open court principle”.

Costs of the Application were deferred until the parenting Applications were determined.

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