IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Nova Scotia (Minister of Community Services) v. B.L.C., 379 Date: 20061215 Docket: SFH CFSA 46794 Registry: Halifax Between: Minister of Community Services Respondent Restriction on publication: Publishers of this case please take note that s. 94(1) of the Children and Family Services Act applies and may require editing of this judgment or its heading before publication. Section 94(1) provides: "No person shall publish or make public information that has the effect of identifying child who is witness at or participant in hearing or the subject of proceeding pursuant to this Act, or parent or guardian, foster parent or relative of the child." Judge: The Honourable Justice Beryl MacDonald Heard: October 25, 2006 and November 22, 2006, in Halifax, Nova Scotia Written Decision: December 15, 2006 Counsel: May Knox, counsel for Minister of Community Services Lola Gilmer, counsel for C. B. L.) By the Court: [1] This is an application by the Minister in protection proceeding pursuant to the Children and Family Services Act S.N.S. 1990, c.5. The Minister is requesting 13 Orders of Production for records prepared by and in the possession of persons and organizations who have provided services to the Respondent. The authority to make this order is found in section 69 of the Civil Procedure Rules: 69.08(5) Where document is in the possession, custody or control of person who is not party, and the production of the document might be compelled at hearing, the Court may, on notice to the parties, make and order.....for the production of true copy that may be used in lieu of the original. 69.09(6) An order for the production of any document for inspection by party or the court shall not be made unless the court is of the opinion that the order is necessary for the disposing fairly of the proceeding or for saving costs and is not injurious to the public interest. [2] The application of this Rule first requires the court to determine whether the document “might be compelled at hearing”. document that is relevant to proceeding and not subject to exclusion is compellable. After determining whether document is relevant the court must determine whether the document is to be excluded, which, in the context of this proceeding requires an examination of the Respondent’s right to claim privilege in respect to the documents requested. Finally, even if document is compellable, the court must determine whether the production of the document is necessary, whether it will save costs, and whether its production will be injurious to the public interest. [3] The Respondent has consented to the grant of Orders of Production for the child’s complete medical records and files in possession of her pediatrician, her family physician, the IWK Health Care Centre, and the Early Intervention Clinic. She has consented to the grant of an Order of Production for the file and records of her treatment with E.F. her former counsellor with Capital Health Addiction Prevention and Treatment Services. She objects to the grant of Orders of Production for the following records: a) The complete record and file of the Capital Health Addiction Prevention Treatment Services; b) The complete medical record, file and chart of the Nova Scotia Hospital, including but not limited to Dr. C’s assessment and psychiatric consult and the Respondent’s subsequent referral to Mental Health Services; c) The complete medical records and files of Dr. and Dr. D, the Respondent’s family physician’s; d) The complete medical record, file and chart of the QEII Health Sciences Centre including but not limited to the complete record, file and chart of the Abbey Lane and Mental Health Clinic; e) The complete record and file of Adsum Centre; [4] The Respondent considers these records irrelevant to these proceedings. For some she claims privilege. She also suggests the records are unnecessary for the fair disposition of these proceedings, that their production will not save costs and will be injurious to the public interest. [5] document to be relevant must contain material that will prove or support fact or proposition put forward by the party seeking the document. This provides the document’s connection to the proceeding. It is not enough to say that document about party exists and therefore it must be provided. The information in the document must relate to fact or proposition at issue. If there is no such relationship, the document is excluded as irrelevant. Facts or propositions that are admitted need no proof rendering any evidence on those issues irrelevant.” The Law of Evidence in Canada, Sopinka, Letterman and Bryant, (Butterworths Canada Ltd. 1992) at pg. 23. [6] It is not always clear whether particular document will indeed prove or support particular fact or proposition. In respect to Civil Procedure Rule 20, (identical to Rule 69, except for the notice provisions) those who have considered this question suggest the rule must be given broad liberal interpretation and it requires only that on the pleadings and the evidence, documents have semblance of relevance”. Eastern Coal v. Cape Breton Dev. (1995),1994 CanLII 4193 (NS SC), 137 N.S.R. (2d) 123 as affirmed in Cdn.Coal v.Cape Breton Dev. (1995), 1995 CanLII 4188 (NS CA), 141 N.S.R. (2d) 180. This is very low threshold. [7] The Respondent argues that this threshold is inappropriate for proceedings commenced pursuant to the Children and Family Services Act. This threshold was established for civil proceedings in which the records sought are often well-defined and generally narrow in scope. The records sought in the cases cited by the Minister pursuant to Rule 20 were documents pertaining to the flooding of mine, list of surgical patients and corporate records relating to staff layoffs. These records are quite dissimilar from those sought by the Minister in this proceeding. In this proceeding the Minister requests access to historic and current files detailing every contact made by the Respondent with her family physicians, and other service providers. Much of the information in these files may have nothing to do with the issues of concern to the Minister, yet the Minister is seeking everything. Its request is not limited to the issues of concern. [8] D.A.Rollie Thompson in his article “Are There Any Rules of Evidence in Family Law?” (2003) 21 C.F.L.Q. 245 suggests child protection proceedings have “unique amalgam of elements criminal, civil, family, administrative. This comment was quoted by Lamer C.J.C. in the Supreme Court of Canada in New Brunswick (Minister of Health& Community Services) b. G.(J.) 1999 CanLII 653 (SCC), 1999 CarswellNB 305 at para 78: There is some debate between the parties as to whether child custody proceedings under the Family Services Act are more properly classified as adversarial or administrative in nature. In my view, formalistic classification of the nature of the proceedings is not helpful in resolving the issue at hand. Child protection proceedings do not admit of easy classification. As Professor Thompson argues, the "unique amalgam of elements criminal, civil, family, administrative makes child protection proceedings so hard to characterize": D. A. Rollie Thompson, "Taking Children and Facts Seriously: Evidence Law in Child Protection Proceedings Part I" (1988), Can. J. Fam. L. 11, at p. 12. [9] While the Supreme Court refused to make characterization, this “unique amalgam” impacts on the question whether there should be different “threshold” when determining relevance in child protection proceeding. Is higher standard needed to appropriately balance the competing interests the Minister’s interest in receiving all information that may determine whether child is in need of protection and what is in child’s best interest and the parent’s interest in retaining some semblance of privacy in his or her life notwithstanding the involvement of the Minister. In G.(J.) Lamer C.J.C. said at para 61: have little doubt that state removal of child from parental custody pursuant to the state's parens patriae jurisdiction constitutes serious interference with the psychological integrity of the parent. The parental interest in raising and caring for child is, as La Forest J. held in B.(R.) supra at para. 83, "an individual interest of fundamental importance in our society". Besides the obvious distress arising from the loss of companionship of the child, direct state interference with the parent-child relationship, through procedure in which the relationship is subject to state inspection and review, is gross intrusion into private and intimate sphere. Further, the parent is often stigmatized as "unfit" when relieved of custody. As an individual's status as parent is often fundamental to personal identity, the stigma and distress resulting from loss of parental status is particularly serious consequence of the state's conduct. [11] and at paragraph 76: The interests at stake in the custody hearing are unquestionably of the highest order. Few state actions can have more profound effect on the lives of both parent and child. Not only is the parent's right to security of the person at stake, the child's is as well. Since the best interests of the child are presumed to lie with the parent, the child's psychological integrity and well-being may be seriously affected by the interference with the parent-child relationship. [12] The Minister has argued against higher threshold citing for support the case of Children’s Aid Society of Algoma v. D.P. and H.L. [2006]O.J. N. 1878 In this case the Children’s Aid Society was seeking records of all police investigations, probation, and correctional services records involving the parents in situation where domestic abuse was an outstanding issue. The Attorney General for Ontario intervened on behalf of itself, the various police services, probation and parole services and correctional services in order to prevent the disclosure of these records to the agency. The parents took no position in respect to the request for those records. This is an important distinction because the court was not asked to balance right claimed by parent but was adjudicating claim put forward by the State. The position of the Attorney General was that it had an obligation, because of the decision in D. P. v. Wagg (2004), 2004 CanLII 39048 (ON CA), 71 O.R. (3d) 229 (Ont.C.A.), to protect the privacy of the witnesses and others whose names appeared in the records sought by the agency. [13] In Children’s Aid Society of Algoma v. D.P. and H.L. Justice Keast at paragraph 22 stated: In any consideration of the application of section 74, there is two test approach. First, the court must determine the issue of relevancy in the context of subsection 74 (3). The court must be satisfied that the record in question contains information that may be relevant. Assuming that this threshold is met, the court then embarks upon weighing process of the public and privacy interests, based on the principles enunciated in D. P. v. Wagg. In the appropriate circumstances, even if record may be relevant, the court can prevent disclosure of that record on grounds of privacy rights. [14] It is important to note that the Ontario legislation in subsection 74(3) specifically provides the threshold for the determination of relevancy. The threshold is that document may be relevant. This is low threshold similar to that applied in Nova Scotia in decisions interpreting Rule 20. Justice Keast makes reference to this low threshold in paragraph 30 of his decision: “...... The legislature deliberately set the threshold low so the widest possible net could be cast to obtain possibly relevant information in the protection of children. Prior to 1984, the threshold was higher, in that actual relevancy had to be demonstrated.” Rule 69, governs proceedings under the Children and Family Services Act. The words used in this rule are quite different from those appearing in section 74(3) of the Ontario legislation. As result Justice Keast’s interpretation of section 74(3) does not assist me in the interpretation of Rule 69. [15] The Respondent argues the higher standard used in criminal proceedings to determine relevancy should apply to child protection proceedings. agree. The nature of these proceedings have very serious consequences for parents and for their children and therefore demand “...a heightened concern for accuracy in fact finding...” (D.A.Rollie Thompson in his article “Are There Any Rules of Evidence in Family Law?” (2003) 21 C.F.L.Q. 245) [16] In R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] S.C.R. 411 at paragraph 22, the Supreme Court required judge to “be satisfied that there is reasonable possibility that the information is logically probative to an issue at trial or the competence of witness to testify.” consider this to be the appropriate standard to use when evaluating the question of relevance in child protection proceeding. [17] accept the proposition put forth in Children’s Aid Society of Algoma v. D.P. and H.L. that there are three purposes for which an agency may seek the production of records: 1. The documents are required as evidence to prove the grounds in the proceeding itself. 2. The documents are required to monitor compliance with existing orders. 3. The documents are required to develop and evaluate the plan of care. Relevance to Prove the Protection Finding [18] Information that merely provides or supports fact or proposition already admitted is not relevant. The Respondent has admitted to the protection finding pursuant to section 22 (2) (k): the child has been abandoned, the childs only parent or guardian has died or is unavailable to exercise custodial rights over the child and has not made adequate provisions for the childs care and custody, or the child is in the care of an agency or another person and the parent or guardian of the child refuses or is unable or unwilling to resume the childs care and custody. [19] The affidavit filed with the Protection Application contained the factual material from which to conclude that the Respondent is unable to resume care and custody of her child because she suffers from alcohol and possibly pharmaceutical or other drug addiction that may be aggravated by depression, post traumatic stress disorder and other conditions of mental illness. Treatment and programs the Respondent has accessed in an attempt to eliminate or control these addictions and regain mental health have, for whatever reason, been unsuccessful. Since this is the information the Respondent had before her when she decided to admit to the protection finding it would appear she agrees with the Minister’s analysis. In addition, section 40 (3) of the Act states: parent or guardian may admit that the child is in need of protective services as alleged by the agency.(my emphasis) [20] The Respondent did not deny the factual information provided in the Minister’s supporting affidavit. If there were factual allegations with which she disagreed, in respect to this protection finding, she should have provided this information at the protection hearing, otherwise she must accept all of the allegations as proof of the protection finding pursuant to section 22(2) (k). This admission renders further proof of the allegations irrelevant. No further evidence to prove the protection finding is required. [21] The Minister has raised the suggestion in its submissions that it requires the information requested to determine whether there are other circumstances in the Respondent’s life that would place the child in need of protection, other than those already disclosed. While the Minister does have duty to “investigate” it must have some basis upon which to request information that may confirm or deny its suspicions. In this case the Minister cannot describe any other fact or condition that places this child at risk other than those to which have already referred. Receiving the Respondent’s “records” for this purpose would amount to fishing expedition. The records are not relevant for this purpose. Relevance to Compliance with Existing Orders [22] The Respondent was required by an Interim Order issued July 31, 2006 and by Protection Order issued August 25, 2006 to comply with the following terms and conditions: 1. She was to be referred to Capital Health Addiction Prevention and Treatment Services for therapy, counseling and treatment. She was to attend as and when directed and was to cooperate and comply with all reasonable requests, inquiries and recommendations of the clinician, or therapist. report with respect to the substance-abuse therapy, counseling and treatment was to be filed by Capital Health Addiction Prevention and Treatment Services with the court. 2. She was to submit to random urine analysis testing in accordance with the collection protocol for forensic urine drug testing and she was to absolutely refrain from the use of non-medically prescribed drugs and from the abuse of alcohol. [23] The Minister has requested the complete record and file of the Capital Health Addiction Prevention and Treatment Services. This file is not relevant for the purpose of monitoring compliance with the Order. This service is already required to prepare report concerning the Respondent that will be filed with this court. It will provide the information requested. [24] The Minister has requested the complete medical record, file and chart of the Nova Scotia Hospital, including but not limited to Dr. C’s assessment and psychiatric consult and the Respondent’s subsequent referral to Mental Health Services. have no information before me to suggest that the Respondent is presently receiving services from any of these sources. As result these records will tell us nothing about her present compliance with the court orders. [25] The Minister has requested the complete medical records and files of Dr. S. and Dr. D., the Respondent’s family physician’s. Dr. S. would have nothing of relevance because he has not been her physician since the commencement of these proceedings. Dr. D., her current physician may have records that have reasonable possibility to confirm or deny the Respondent’s compliance with the court orders. [26] The Minister is seeking the complete medical record, file and chart of the QEII Health Sciences Centre including but not limited to the complete record, file and chart of the Abbey Lane and Mental Health Clinic. understand the QEII Health Sciences Centre is the umbrella organization that includes, among other health services, services for those experiencing mental health illness and these more specialized services are offered through the facilities known as the Abbey Lane and the Mental Health Clinic. Records from the QEII and the other facilities since the commencement date of these proceedings that show the Respondent has been admitted to that facility or attended at the emergency department as result of the abuse of alcohol or drugs or as result of mental illness or disorder would be relevant to the question of compliance. Past records of attendances and treatment for other reasons would not. [27] The Minister is seeking the complete record and file of Adsum Centre. The Respondent has not been involved with the Adsum Centre since the commencement of these proceedings. Their records are of no assistance in respect to the compliance issue. Development of Plan of Care [28] The Minister suggests the information it requests is relevant to the plan of care to be developed for this child and to properly evaluate any plan of care the Respondent may present. The Minister has put forward three propositions in its submissions under this heading. will deal with them in order. 1.. “It is apparent that (the Respondent) is unable to address the child protection concerns. It is questionable which services (the Respondent) has actually participated in and benefitted from and to what degree. The documents sought are relevant to provide information on these questions and are necessary for the fair disposition of the permanent care and custody trial.” [29] The Minister knows the majority if not all of the services the Respondent has accessed. It also knows these have not resolved the problems in her life. This is obvious because the Minister has instituted this proceeding. What the Minister doesn’t know is whether the services accessed by the Respondent failed because she did not regularly attend and/or follow recommendations or for other reasons. This information is relevant to the preparation of plan of care. 2. “They are also relevant because the minister must review its case plan on regular basis. Information from third parties may give the minister an opportunity to reconsider its position and alter its expectations and plan.” [30] consider this to be restatement of the proposition put forth in the first submission. 3. “Even though the parental capacity assessors may have access to some of the information requested by the Minister, the Minister still has an obligation to investigate any and all information regarding child protection concerns. The Minister’s investigation may uncover information that was not parent or on the surface or otherwise in the assessors investigation. Further information relevant to the assessment and may never reach the assessors if (the Respondent) denies or downplays issues or concerns. The assessment will only be as good as the accuracy and the quality of the information upon which it is based. This information will assist in the preparation of the parental capacity assessment.” [31] The assessors in this case will have an abundance of material from which to understand the Respondent’s challenges. The affidavits filed in this proceeding give these details. In addition, all of the affidavit and other information filed in the previous protection proceeding involving this child are, by the Respondent’s consent, part of this proceeding. The assessors will have available to them information from E. F., the Respondent’s former counsellor with Capital Health Addiction Prevention and Treatment Services, they will have the report that Service is required to produce by court order, they will be able to make inquiries, because the Respondent has given her consent, from those presently involved with the Respondent at the Abbey Lane. [32] The assessors are to prepare an independent parental capacity assessment with psychological component. Of what assistance is the provision of previous psychiatric consultations or records of previous treatment and services provided for mental health or addiction related disorders? These may be useful in determining whether past addiction and mental health issues are or are not present in the Respondent’s life. They may provide information identifying what appeared to be barriers to her recovery which may include her failure to comply with recommendations. This information is relevant. The fact that this information may be provided by means other than Orders of Production relates to the question of necessity, not relevance. am satisfied that information about the Respondent’s past treatment and services utilized to address addictions and mental health illness or disorders is relevant both for the work to be accomplished by the assessors and for the development and analysis of plans of care. Exclusion because of Privilege [33] The Respondent has claimed that many of the records sought by the Minister should be excluded because they are confidential. The governing case for the claim of confidentiality in civil cases is A.M. v. Ryan, 1997 CanLII 403 (SCC), [1997] S.C.R. 157 (S.C.C.). In this case the Defendant sought production of the notes and reports of psychiatrist who had treated the Plaintiff. The Supreme Court confirmed that the degree of protection given by this privilege may be absolute or partial, “depending on what is required to strike the proper balance between the interest in protecting the communication from disclosure and the interest in proper disposition of the litigation. Partial privilege may signify that only some of the documents in given class must be produced. Documents should be considered individually or by sub‑groups on "case‑by‑case" basis.” [34] The criteria for the claim of privilege based on confidentiality are those: ......set forth in Wigmore on Evidence, vol. (McNaughton rev. 1961), §2285. First, the communication must originate in confidence. Second, the confidence must be essential to the relationship in which the communication arises. Third, the relationship must be one which should be "sedulously fostered" in the public good. Finally, if all these requirements are met, the court must consider whether the interests served by protecting the communications from disclosure outweigh the interest in getting at the truth and disposing correctly of the litigation. (para.20) [35] Chief Justice McLachlin stated at paragraph 37: Once the first three requirements are met and compelling prima facie case for protection is established, the focus will be on the balancing under the fourth head. document relevant to defence or claim may be required to be disclosed, notwithstanding the high interest of the plaintiff in keeping it confidential. On the other hand, documents of questionable relevance or which contain information available from other sources may be declared privileged. The result depends on the balance of the competing interests of disclosure and privacy in each case. [36] Many of the records sought by the Minister were created as result of the Respondent’s involvement in previous child protection proceeding. When an individual is directed by court or agrees under voluntary arrangement with the Minister to access services, he or she cannot do so with an understanding that communication with those service providers will be confidential. The Court, the Minister, or the agency involved will request reports from those service providers which will be based on communications and records of those communications. These records cannot attract privilege. [37] Records created by individuals and service providers sought out by the Respondent on her own initiative may attract privilege but consider the interest of the Minister to develop and evaluate an appropriate plan of care for this child takes precedence over the interest of the Respondent to keep relevant records, otherwise confidential, out of view. [38] The Minister suggests Orders of Production provide the most effective and cost efficient means by which to obtain the relevant information. The Respondent’s submission is that the requests for Orders of Production in this case would provide documents that would include significant irrelevant information, such as her physician’s treatment for illness and conditions not associated with addictions and mental illness and the admittance and treatment at the QEII for illness and conditions also not associated with addictions and mental illness. Substantial time is required by both the Minister and Respondent’s counsel to review all of this material. The Respondent suggests the Minister can obtain the information it requires by using interrogatories, and by requesting medical reports specific to the identified concerns. The production of everything is not necessary for fair disposition of the proceeding. agree. While it may be easier for the Minister to request everything and short through the material later, this is not efficient for the overall process. Hundreds of pages of information, having no relevance to the issues in proceeding are photocopied, delivered and stored. Many hours must be spent sifting through this information much of which is hard to read and may require experts to understand and interpret. The Minister has other means available to obtain the relevant information. The Minister may seek Orders of Production for records containing information about identified issues. Interrogatories may be used or medical report containing specific relevant information may be requested. Cost Savings [39] For reasons already given, and to follow, am not satisfied that the production of all of the Orders of Production requested will save costs. While this term has not been defined in Rule 69 consider it reference to the parties or to the “process”. The purpose of our Civil Procedure Rules is to “secure the just, speedy and inexpensive determination of every proceeding.” (Rule 1.03) Providing information to the parties and to the court that is not relevant does not achieve this purpose. To achieve this purpose relevant information must be clearly identified by providing the linkage between the information sought and the issues in dispute and it must be collected by selecting means specifically tailored to produce the relevant information. [40] There will be cost to service providers who are asked to produce only relevant records or to prepare report or answer interrogatories. This may place greater cost burden on the service provider than does merely copying all of its files. do not consider this to be the type of cost consideration contemplated by Rule 69 but if it is included consider the imposition of such cost to be required for the “just” determination of these proceedings. Will the Production of the Records be Injurious to the Public Interest [41] Discussions under this topic generally explore the relationship between, in this case Respondent, and the person or institution from which records are requested. There may also be an examination of the content of the information itself but this would likely arise in the context of cases involving national security. In this case the Respondent argues that the public has an interest in ensuring persons such as herself seek out services. If her service providers must disclose their records, she has no privacy and this invasion will undermine therapeutic intervention. This argument is similar to that put forward by the Respondent in respect to her contention that her records were confidential. However, the right of citizens to be protected from invasions of privacy is enshrined in the Canadian Charter of Rights and Freedoms. These privacy interests may require the exclusion of relevant evidence. balance must be achieved between the individual’s right to privacy and societies need to protect children. In this case consider the protection of children to be the predominant value. Nevertheless, the Respondent’s right to privacy may be invaded only for the purpose of providing relevant information to the Minister. Efforts must be made to prevent other information about the Respondent from being caught in the net. [42] Having reviewed the principles to be applied to evaluate the Minister’s request find the following: 1. The complete record and files of the Capital Health Addiction Prevention Treatment Services are relevant to the plan of care and assessment. They are necessary and their production will not be injurious to the public interest. 2.. The complete medical record, file and chart of the Nova Scotia Hospital, including Dr.C’s assessment and psychiatric consult and the Respondent’s referral to Mental Health Services are relevant to the plan of care and assessment. They are necessary and their production will not be injurious to the public interest. 3. The medical records and files of Dr. and Dr. are only relevant in respect to consultations, and treatment involving the Respondent’s alcohol and possible pharmaceutical or other drug addiction, her depression, post traumatic stress disorder and other conditions of mental illness. This information may be obtained by other means, by way of interrogatories or medical reports and therefore the Orders of Production in respect to these physicians are not granted. 4. The complete record and files of the Abby Lane and Mental Health Clinic are relevant to the plan of care and assessment. They are necessary and their production will not be injurious to the public interest. 5. The complete medical record, files and charts of the QEII, to the extent it has this information separate or in addition to the information held by the Abby Lane and the Mental Health Clinic, are relevant only in respect to admissions, consultations, and treatment involving the Respondent’s alcohol and possible pharmaceutical or other drug addiction, her depression, post traumatic stress disorder and other conditions of mental illness. The Minister’s request for an Order of Production from this institution captures information that is irrelevant and as result is denied. request restricted to the collection of relevant information would be considered but this request is not before me. 6. The Minister seeks the complete record and file of Adsum Centre. am not informed by either party about what these records may contain. From its description on the web site, it is funded by the Department of Community Services and it “provides support and programming, in residential setting, to 16 women and their children who are trying to address barriers, which have led them to experience homelessness. Residents are asked to make commitment of at least six months and stay maximum of 12. As part of their exit strategy, women will develop long-term plan that will encourage reflection and include tools to assist them to maintain safe, stable housing and the changes they’ve realized in their lives.” If this organization has kept records of every conversation the Respondent has had with staff, the records may contain significant irrelevant information. On the other hand if the Respondent’s alcohol and possible pharmaceutical or other drug addiction, her depression, post traumatic stress disorder and other conditions of mental illness were identified “barriers” the recommendations made to her, her compliance, and her resulting plan are relevant to the plan of care and assessment. do consider it important to consider the Respondent’s right to privacy in respect to the production of irrelevant information. The relevant information must be produced notwithstanding the Respondent’s wish to keep it private. However, it is not necessary to produce all the records. This organization may be requested to prepare report, or interrogatories may be used in respect to the identified barriers, the recommendations made, the Respondents follow through and the plan she prepared prior to her leaving the Centre. Since the Minister is requesting all records in its Order of Production deny the request. Beryl MacDonald, J.
The Minister sought numerous orders for production of medical and various other files (including the mother's complete medical files from her family physician, the Nova Scotia Hospital and another hospital, and her files from a woman's shelter and an addiction treatment and prevention service) in an ongoing child protection proceeding. The mother argued that the records sought were irrelevant and that if there was any relevance, they were privileged, were unnecessary to the fair disposition of the proceeding, and their production would not save costs and would be injurious to the public interest. The addiction prevention and treatment service, Nova Scotia Hospital and mental health clinic records and files are ordered to be produced; the medical records of the family physician, the hospital and the woman's shelter are not ordered to be produced as these files would contain some irrelevant information and the relevant information could be obtained by other means. In a child protection proceeding, documents may be relevant to prove a protection finding, to monitor compliance with existing orders, or to develop and evaluate a plan of care. Records held by individuals or organizations to whom an individual has been referred as a result of a child protection proceeding are not privileged as no confidentiality could be expected in those circumstances. Records held by individuals or organizations whose services were accessed independent of a court order or the Minister's involvement that would ordinarily attract privilege may be ordered to be produced in child protection proceedings. However, if the information contained in the records can be obtained by a means targeted specifically to produce the relevant information, then orders for production for all of the records will not be necessary to the fair disposition of the proceeding. Also, since such records contain irrelevant, as well as relevant material, such an order would violate the privacy protections found in the Charter and be injurious to the public interest.