The Plaintiffs in two separate medical negligence actions requested that the defendants produce certain documents that they generated for use in quality of care review processes at the defendant hospitals.

Quality review is the inspection and evaluation of health care structures, practices or results, conducted or guided by professionals. These can often be initiated as a result of a reported bad clinical outcome.  

At the discovery phase, the defendants refused to produce the quality review documents claiming they were irrelevant and also because they met the four-part Wigmore test to establish a case-by-case evidentiary privilege.

In reviewing the specific documents that the medical defendants were refusing to produce, the appeals judge found that they were in whole or in part relevant to the matters in dispute. These documents included the following:

1. Report, Recommendations and Follow-Up – Privileged and Confidential – Obstetrics and Labour and Delivery Local Quality of Care Committee for St. Michael’s Hospital, Meeting Date December 13, 2016;
2. Agenda – Incident Analysis Team Meeting December 13, 2016;
3. Notations on Agenda – Incident Analysis Team Meeting December 13, 2016;
4. Assignment of Cases for Review – Incident Analysis Team Meeting December 13, 2016;
5. Factual Summary of Cases for Review – Incident Analysis Team Meeting December 13, 2016;
6. Email from Dr. Meffe to IAT Members with Case Assignments for Incident Analysis Team Meeting on December 13, 2016 – dated December 8, 2016
7. PowerPoint Presentation prepared by Dr. Brown for December 9, 2016 Perinatal/Neonatal Morbidity and Mortality Rounds.

Despite finding these documents relevant to the medical malpractice litigation at hand, the appeals judge confirmed that common law privilege applied and therefore production must be denied. The appeals judge observed that Ontario courts have repeatedly recognized the importance of protecting quality assurance communications at common law. 

The four conditions necessary to establish common law privilege were first articulated by Wigmore and subsequently adopted by the Supreme Court of Canada are:

• the communications must originate in a confidence that they will not be disclosed.
• this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
• the relation must be one which in the opinion of the community ought to be sedulously fostered.
• the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

In applying this legal test to the documents in dispute, the appeals judge found that they were protected by common law privilege.

Decision Date: April 17, 2023

Jurisdiction: Ontario Superior Court of Justice

Citation: Algarawi v. Berger; and Porter v. Sutandar, 2023 ONSC 2339 (CanLII)