KOSTIC v THOM

The Court considered an Application seeking a proposed Order (the "Proposed Order") to place privacy and confidentiality restrictions on the Applicant's medical records (the "Records") that were producible in a set of case managed actions (the "Actions").

The Proposed Order sought restrictions to limit the use of the Records to the Actions. The Court explained that, by default, Rule 5.33 restricts the use of information disclosed under Part 5 of the Rules, requiring it to be treated as confidential subject to narrow exceptions. However, Justice Marion acknowledged that where additional protection is required, Rule 5.3 implicitly allows the Court to grant confidentiality orders.

The Court applied the established test for Rule 5.3 by assessing whether the risk associated with disclosing the Records was grossly disproportionate to the merits associated with full disclosure of all relevant information to the parties. Since there was evidence of previous misuse of the Applicant's medical records by some parties to the Actions, Justice Marion found that the Applicant had established a compelling reason for a confidentiality order over and above the protection of Rule 5.33 and the corresponding common law rule.

The Proposed Order also sought a Restricted Court Access Order under Rules 6.28-6.29. The Court applied the established test for Restricted Court Access Orders, namely that the Applicant must establish: (1) court openness poses a serious risk to an important public interest; (2) the Order sought is necessary to prevent this serious risk; and (3) the benefits of the Order outweigh its negative effects (the “Test”).

The Test was met. Under branch (1) of the Test, Justice Marion referenced case law for the principle that it is in the public interest to protect information that cuts to a person's "biographical core", which included the Records. Branch (2) of the Test was made out because of the evidence that the Applicant's medical records had previously been misused. Under branch (3), the Court determined it was proportionate to grant the Restricted Court Access Order because making such information publicly available before Trial would cause potential harm to the Applicant and delay. Further, the Respondents had not indicated they would be prejudiced.

While the Applicant had not provided the notice to the media required by Rule 6.32, the Court said this did not prevent it from granting the Restrict Court Access Order provided the Order addressed and protected the media's interest.

Justice Marion granted a modified version of the Proposed Order, imposing privacy and confidentiality restrictions over the Records.