In a majority judgment released January 12, 2005, the BC Court of Appeal overruled an arbitrator’s decision which had limited disclosure of a grievor’s medical records to the employer’s counsel and medical experts, and had prevented the employer from reviewing the records. The records at issue included psychological records detailing pre-employment physical and sexual abuse.
At the arbitration hearing, the employer applied for pre-hearing disclosure of the grievor’s medical records, in relation to a disputed claim for short-term illness and injury plan benefits. The employer argued that the only restriction on disclosure should be that the records would be used solely for the purpose of the litigation. The arbitrator did not agree. He allowed the grievor’s counsel to review the records for relevance before making disclosure, but restricted disclosure of the records to the employer’s counsel and medical experts, and ruled that the records could not be reviewed with the employer.
The employer’s appeal focused only on the part of the arbitrator’s decision that prevented the employer from reviewing the medical records. The employer argued this portion of the arbitrator’s decision inhibited its ability to obtain advice and properly instruct counsel during the arbitration proceeding.
The majority of the Court agreed with the employer, amending the arbitrator’s order to allow the instructing representatives of the employer to view the clinical records, to the extent required to provide instructions to counsel and obtain advice. Counsel for the employer was ordered to keep control of the records and to confine disclosure to those employer representatives with a “need to know” who were not connected to the grievor’s workplace. These representatives were required to protect the confidentiality of the information.
The Court observed that the relationship between a party and its counsel is impaired if counsel is unable to advise the client and obtain instructions based on full and candid disclosure. It stressed the fundamental common law principle that parties to litigation are entitled to full disclosure of all documents relevant to the litigation, subject only to privileged exceptions. It stated that disclosure limited to counsel and expert witnesses should be discouraged in all but very exceptional cases.