Most of the important work in a medical malpractice case happens long before trial, and a good deal of it happens in fights over documents. Who has to hand over what, and when, often shapes whether a claim can be proved at all. That is especially true in a class action, where a single institutional defendant holds nearly all of the records and the plaintiffs are trying to reconstruct what happened across many patients over many years. Scott v Regional Health Authority B (Horizon Health Network) and Ruest, 2026 NBKB 143, is a disclosure decision of exactly this kind, and it is a useful window into how the pre-discovery skirmish is fought and decided.
This is a New Brunswick decision, so it is persuasive only in Ontario and not binding here. It also turns partly on New Brunswick statutes that have no exact Ontario counterpart. That said, the framework Chief Justice DeWare applies to relevance, privilege and patient privacy tracks the Ontario approach closely enough that the reasoning carries over as persuasive authority on all three points.
Where this fits in the Moncton oxytocin litigation
The underlying case is by now well known. The representative plaintiff, Jayde Scott, alleges that the defendant, Nicole Ruest, a registered nurse in the labour and delivery unit of the Moncton Hospital, administered oxytocin to labouring patients without their consent and without a physician’s order, and that Horizon Health Network was negligent in its hiring, training and supervision of her. The claim also advances systemic negligence and vicarious liability against the hospital. The allegations have not been proven, and both defendants deny them.
The procedural road to this decision has been long. In 2023, the Court of King’s Bench declined to certify the action as a class proceeding, holding that individual issues would predominate. That ruling was reversed: the New Brunswick Court of Appeal allowed the appeal and certified the class in Scott v Regional Health Authority B, 2024 NBCA 146, and the Supreme Court of Canada denied leave to appeal in 2025. The action is now certified, and the parties are preparing for examinations for discovery at the end of August 2026. The two motions decided here are the last disclosure disputes standing between the parties and those examinations.
Nothing in this decision touches liability. It resolves what documents must change hands before discovery, and no more. As the Chief Justice is careful to note, disclosure on the basis of relevance at this stage does not decide what will be admissible at trial: that, in her words, is “a different debate for a different day.”
The low bar for relevance at discovery
The engine of the whole decision is the deliberately low threshold for relevance at the discovery stage. Under the New Brunswick Rules of Court, a party must produce every document that relates to a matter in issue unless privilege is claimed. Citing its own appellate authority, the court restates the governing idea: a document is relevant if it is evidence on an issue, or if it could reasonably contain information that might help the requesting party advance its case. The rules are to be construed broadly, because fulsome discovery is what makes settlement possible.
Ontario practitioners will recognize this immediately. The semantic relevance standard for documentary discovery under Rule 30.02 of the Ontario Rules of Civil Procedure operates the same way, and the “could reasonably contain information that may enable the party to advance its case” formulation comes from the same line of authority the New Brunswick court relies on. The vocabulary is shared across the two provinces, and so is the tilt toward disclosure.
Issue one: the defendant nurse’s personnel file
The nurse asked the court to keep most of her employment file out of production. Her argument, steelmanned, is a reasonable one. The pleadings against her personally are narrow: they allege the inappropriate administration of oxytocin, nothing more. On that view, only the parts of her file that bear on that specific allegation are relevant, and the rest is private employment information over which she holds a significant privacy interest. She leaned on an Ontario decision, Landry v Rains, 2013 ONSC 5304, where a police officer’s personnel file was held not producible because the plaintiff had pleaded a single incident and had not alleged a general pattern of indiscipline or signalled reliance on similar-fact evidence.
The plaintiff and the hospital answered that this reading is far too narrow, because it ignores the rest of what is actually pleaded. This is not a single-incident case against the nurse alone. The claim alleges negligent hiring, training and supervision, systemic negligence, and vicarious liability against the hospital. Once those allegations are on the record, the nurse’s training, her performance evaluations, and any complaints about her performance become directly relevant, not to whether she gave oxytocin on one occasion, but to what the hospital knew or ought to have known about her, and when.
The court accepted the broader view and distinguished Landry on its facts. Unlike the single occurrence in Landry, the allegations here span a prolonged period and rest on a supervision and systemic-negligence theory that puts the employment history squarely in issue. On the low relevance bar, the personnel file listed in the hospital’s affidavit of documents had to be disclosed. The court was direct about the limits of the privacy objection: the nurse’s privacy interest in these documents is real, but a privacy interest is not a privilege, and it does not displace the production obligation. The order carves out her genuinely personal data, her social insurance number, banking details, pension and benefits, and her own health information, but the substance of the file goes over.
The practical lesson for plaintiff-side pleading is worth stating plainly. Whether an institutional defendant’s personnel and supervision records are producible often turns on how the negligence is framed. A claim confined to a single clinical act invites the Landry objection. A claim that properly pleads negligent supervision and systemic failure makes the employment file relevant on its face. The pleading decision made at the outset shapes what evidence becomes available years later.
Issue two: hospital “quality improvement” privilege
The second fight is the one Ontario counsel should read most carefully, because it is about a statutory privilege for hospital quality-improvement material, and it is where the hospital largely lost.
Horizon claimed privilege over a set of documents under section 43.3(2)(b) of New Brunswick’s Evidence Act, which protects a document prepared for the purpose of being used in a study, research or program whose dominant purpose is medical education or improvement in medical or hospital care. The policy rationale, which the court accepts, is candour: if internal reviews of adverse events could be pulled into litigation, staff would be less willing to speak frankly, and the quality of patient-safety work would suffer. The hospital pressed exactly that chilling-effect argument, and it borrowed reasoning from British Columbia authority describing the legislature’s deliberate choice, in that province, to favour hospital confidentiality over disclosure.
The plaintiff’s answer was that the privilege is narrow and has to be earned document by document. Drawing on older New Brunswick authority, the plaintiff set out what the hospital had to establish for each document: that it was prepared by a properly constituted committee, for the specific goal of research or study, with the dominant purpose of medical education or improvement. The court also flagged a change in the statute over time. When the leading cases were decided, the section required documents to be prepared “exclusively” for the protected purpose; the word “exclusively” has since been dropped, though the “dominant purpose” requirement remains.
The decisive move is about who carries the burden and what happens to ambiguity. Because the documents were all relevant, the court held that disclosure is presumed unless a valid privilege is made out, and that any ambiguity about a document’s dominant purpose is resolved in favour of disclosure. Applying that standard to the supporting affidavit, the court found the descriptions of most documents too thin to establish the dominant purpose, and ordered them produced. Only five categories survived, those where the court could identify both the committee or group responsible and a dominant purpose of improving patient care. Everything else in that schedule was found not to meet the test and had to be disclosed.
Here the Ontario translation has to be careful, and the differences matter as much as the similarities. Ontario’s analogue is the Quality of Care Information Protection Act, 2016 (QCIPA), which protects “quality of care information” prepared by or for a designated quality-of-care committee. QCIPA is structured differently from the New Brunswick provision: it works through the concept of a designated committee and a defined class of information, with its own statutory exclusions, rather than the “dominant purpose” test the New Brunswick court applied. The specific holdings in this decision are therefore not transportable to Ontario section by section. What does carry over is the analytic posture, and it is the useful part: a claim of quality-improvement privilege is not established by a label. The party asserting it bears the burden, the evidence supporting it has to be specific enough to show the protected purpose, and thin or generic descriptions will be resolved in favour of production. Marking a document “confidential, for quality assurance purposes” is not, by itself, enough.
Issue three: the private health records of other patients
The third issue is where the plaintiff lost, and where the court’s reasoning is most protective of the very people the class action is meant to serve.
The plaintiff sought the names, addresses and contact information of women the hospital had identified as likely class members, and, failing that, an order that the hospital contact them. The instinct is understandable: class counsel want to reach potential members and build the evidentiary picture. But the court refused, and it did so on the strength of a consistent line of class-action privacy authority, including the British Columbia Court of Appeal in Logan v Hong and the decision in Massie v Provincial Health Services Authority, the imposter-nurse class action from British Columbia. The principle those cases stand for is that a patient’s confidentiality is superseded only by an interest of paramount importance, and that recovery of money does not, on its own, outweigh a patient’s right to keep private both the fact of the care they received and their contact details.
The court also drew on Iovine v Toronto Sun Wah Trading, 2014 ONSC 6555, an Ontario decision, for a point about timing. At the common-issues stage, before discovery, class members’ personal health information will often be unnecessary: if the common issues are lost, the information was never needed, and if they are won, each member discloses their own information when they pursue their individual issues later. On that reasoning, the Chief Justice found no interest of paramount importance at this stage that would justify overriding the patients’ privacy, and denied the request without prejudice to it being revisited later in the litigation.
The result is a coherent whole rather than a contradiction. The same decision that pries open the nurse’s employment file and most of the hospital’s internal reviews declines to expose the identities and medical histories of the patients. The distinction is not about how sympathetic each holder of the documents is; it is about relevance and paramountcy. The nurse’s file and the quality-improvement records go to the live common issues about the hospital’s conduct. The other patients’ records do not, at least not yet, and their privacy is treated as an interest that only something of paramount importance can override.
The request for a better affidavit of documents
The plaintiff also asked for an order compelling a further and better affidavit of documents, listing pages of additional material it believed should exist. The court declined. The hospital said it had conducted an exhaustive search, reviewing, on its account, more than 500,000 emails, and that the requested documents either did not exist or were already listed. A court cannot order the production of documents a party says do not exist, and the discovery process itself, through examinations and undertakings, is the proper mechanism for testing that assertion and surfacing anything that has been missed. The one concrete obligation the court did impose is a sensible housekeeping one: to the extent the plaintiff’s requested items are already in the affidavit of documents, the hospital must point to exactly where, so the plaintiff can prepare for the August examinations.
What patients and counsel should take from this
For patients following this litigation, the honest message is that this is a procedural milestone, not a verdict. Certification means the case can proceed as a class action; this decision means the parties can now exchange the documents they need before questioning each other under oath. Neither step is a finding that anyone was negligent or that any patient was harmed. Those questions remain to be decided.
The clinical background is worth stating carefully and no more strongly than the pleadings allow. Oxytocin is a synthetic hormone used to induce or strengthen labour contractions; it is potent, dose-dependent, and given intravenously on a physician’s order under monitoring, precisely because too much can cause contractions that are too frequent or prolonged and, in turn, fetal distress. The allegation in this case is that it was given without an order and without consent. That is an allegation, and how any individual patient’s delivery was actually affected is the kind of question that, as the court in the certification chapter recognized, ultimately turns on patient-specific expert evidence.
For counsel, three through-lines survive the trip across the provincial border as persuasive authority. First, how you plead institutional negligence determines what institutional records you can later obtain; a supervision and systemic-negligence theory opens the employment file that a single-incident claim would not. Second, a hospital’s quality-improvement privilege is a burden to be discharged with specific evidence, not a label to be stamped on a document, and ambiguity about a document’s purpose is resolved in favour of disclosure. Third, patient privacy is a powerful and durable interest: even in litigation designed to vindicate patients, courts will not hand over the identities and health records of non-parties absent an interest of paramount importance, and rarely before the common issues are tried.
The documentary record sits at the centre of every medical malpractice case, which is why these disputes are worth understanding rather than skipping past. For patients, the starting point is often getting hold of your own file: see how to get your medical records in Ontario. For the wider framework of a claim, from the standard of care to causation and limitation periods, see suing for medical malpractice in Ontario.
Decision date: July 8, 2026
Court: Court of King’s Bench of New Brunswick (Chief Justice Tracey K. DeWare)
Jurisdiction note: A New Brunswick decision, persuasive only in Ontario. The quality-improvement privilege turns on section 43.3(2)(b) of the New Brunswick Evidence Act, and the patient-privacy analysis engages New Brunswick’s Personal Health Information Privacy and Access Act; the Ontario analogues (QCIPA and PHIPA) are structured differently.
Citation: Scott v Regional Health Authority B (dba Horizon Health Network) and Ruest, 2026 NBKB 143 (CanLII)
Prior proceedings: Certification denied, 2023 NBKB 209; reversed and class certified, Scott v Regional Health Authority B, 2024 NBCA 146; leave to appeal to the Supreme Court of Canada denied, 2025.
Scott v Regional Health Authority B: What a Class Action Discloses at Discovery
In the certified Moncton oxytocin class action, a New Brunswick court has ordered the defendant nurse's personnel file produced, rejected most of the hospital's quality-improvement privilege claims, and refused to disclose the private health records of other patients. The disclosure reasoning is persuasive only in Ontario, but it tracks the Ontario approach closely.
Most of the important work in a medical malpractice case happens long before trial, and a good deal of it happens in fights over documents. Who has to hand over what, and when, often shapes whether a claim can be proved at all. That is especially true in a class action, where a single institutional defendant holds nearly all of the records and the plaintiffs are trying to reconstruct what happened across many patients over many years. Scott v Regional Health Authority B (Horizon Health Network) and Ruest, 2026 NBKB 143, is a disclosure decision of exactly this kind, and it is a useful window into how the pre-discovery skirmish is fought and decided.
This is a New Brunswick decision, so it is persuasive only in Ontario and not binding here. It also turns partly on New Brunswick statutes that have no exact Ontario counterpart. That said, the framework Chief Justice DeWare applies to relevance, privilege and patient privacy tracks the Ontario approach closely enough that the reasoning carries over as persuasive authority on all three points.
Where this fits in the Moncton oxytocin litigation
The underlying case is by now well known. The representative plaintiff, Jayde Scott, alleges that the defendant, Nicole Ruest, a registered nurse in the labour and delivery unit of the Moncton Hospital, administered oxytocin to labouring patients without their consent and without a physician’s order, and that Horizon Health Network was negligent in its hiring, training and supervision of her. The claim also advances systemic negligence and vicarious liability against the hospital. The allegations have not been proven, and both defendants deny them.
The procedural road to this decision has been long. In 2023, the Court of King’s Bench declined to certify the action as a class proceeding, holding that individual issues would predominate. That ruling was reversed: the New Brunswick Court of Appeal allowed the appeal and certified the class in Scott v Regional Health Authority B, 2024 NBCA 146, and the Supreme Court of Canada denied leave to appeal in 2025. The action is now certified, and the parties are preparing for examinations for discovery at the end of August 2026. The two motions decided here are the last disclosure disputes standing between the parties and those examinations.
Nothing in this decision touches liability. It resolves what documents must change hands before discovery, and no more. As the Chief Justice is careful to note, disclosure on the basis of relevance at this stage does not decide what will be admissible at trial: that, in her words, is “a different debate for a different day.”
The low bar for relevance at discovery
The engine of the whole decision is the deliberately low threshold for relevance at the discovery stage. Under the New Brunswick Rules of Court, a party must produce every document that relates to a matter in issue unless privilege is claimed. Citing its own appellate authority, the court restates the governing idea: a document is relevant if it is evidence on an issue, or if it could reasonably contain information that might help the requesting party advance its case. The rules are to be construed broadly, because fulsome discovery is what makes settlement possible.
Ontario practitioners will recognize this immediately. The semantic relevance standard for documentary discovery under Rule 30.02 of the Ontario Rules of Civil Procedure operates the same way, and the “could reasonably contain information that may enable the party to advance its case” formulation comes from the same line of authority the New Brunswick court relies on. The vocabulary is shared across the two provinces, and so is the tilt toward disclosure.
Issue one: the defendant nurse’s personnel file
The nurse asked the court to keep most of her employment file out of production. Her argument, steelmanned, is a reasonable one. The pleadings against her personally are narrow: they allege the inappropriate administration of oxytocin, nothing more. On that view, only the parts of her file that bear on that specific allegation are relevant, and the rest is private employment information over which she holds a significant privacy interest. She leaned on an Ontario decision, Landry v Rains, 2013 ONSC 5304, where a police officer’s personnel file was held not producible because the plaintiff had pleaded a single incident and had not alleged a general pattern of indiscipline or signalled reliance on similar-fact evidence.
The plaintiff and the hospital answered that this reading is far too narrow, because it ignores the rest of what is actually pleaded. This is not a single-incident case against the nurse alone. The claim alleges negligent hiring, training and supervision, systemic negligence, and vicarious liability against the hospital. Once those allegations are on the record, the nurse’s training, her performance evaluations, and any complaints about her performance become directly relevant, not to whether she gave oxytocin on one occasion, but to what the hospital knew or ought to have known about her, and when.
The court accepted the broader view and distinguished Landry on its facts. Unlike the single occurrence in Landry, the allegations here span a prolonged period and rest on a supervision and systemic-negligence theory that puts the employment history squarely in issue. On the low relevance bar, the personnel file listed in the hospital’s affidavit of documents had to be disclosed. The court was direct about the limits of the privacy objection: the nurse’s privacy interest in these documents is real, but a privacy interest is not a privilege, and it does not displace the production obligation. The order carves out her genuinely personal data, her social insurance number, banking details, pension and benefits, and her own health information, but the substance of the file goes over.
The practical lesson for plaintiff-side pleading is worth stating plainly. Whether an institutional defendant’s personnel and supervision records are producible often turns on how the negligence is framed. A claim confined to a single clinical act invites the Landry objection. A claim that properly pleads negligent supervision and systemic failure makes the employment file relevant on its face. The pleading decision made at the outset shapes what evidence becomes available years later.
Issue two: hospital “quality improvement” privilege
The second fight is the one Ontario counsel should read most carefully, because it is about a statutory privilege for hospital quality-improvement material, and it is where the hospital largely lost.
Horizon claimed privilege over a set of documents under section 43.3(2)(b) of New Brunswick’s Evidence Act, which protects a document prepared for the purpose of being used in a study, research or program whose dominant purpose is medical education or improvement in medical or hospital care. The policy rationale, which the court accepts, is candour: if internal reviews of adverse events could be pulled into litigation, staff would be less willing to speak frankly, and the quality of patient-safety work would suffer. The hospital pressed exactly that chilling-effect argument, and it borrowed reasoning from British Columbia authority describing the legislature’s deliberate choice, in that province, to favour hospital confidentiality over disclosure.
The plaintiff’s answer was that the privilege is narrow and has to be earned document by document. Drawing on older New Brunswick authority, the plaintiff set out what the hospital had to establish for each document: that it was prepared by a properly constituted committee, for the specific goal of research or study, with the dominant purpose of medical education or improvement. The court also flagged a change in the statute over time. When the leading cases were decided, the section required documents to be prepared “exclusively” for the protected purpose; the word “exclusively” has since been dropped, though the “dominant purpose” requirement remains.
The decisive move is about who carries the burden and what happens to ambiguity. Because the documents were all relevant, the court held that disclosure is presumed unless a valid privilege is made out, and that any ambiguity about a document’s dominant purpose is resolved in favour of disclosure. Applying that standard to the supporting affidavit, the court found the descriptions of most documents too thin to establish the dominant purpose, and ordered them produced. Only five categories survived, those where the court could identify both the committee or group responsible and a dominant purpose of improving patient care. Everything else in that schedule was found not to meet the test and had to be disclosed.
Here the Ontario translation has to be careful, and the differences matter as much as the similarities. Ontario’s analogue is the Quality of Care Information Protection Act, 2016 (QCIPA), which protects “quality of care information” prepared by or for a designated quality-of-care committee. QCIPA is structured differently from the New Brunswick provision: it works through the concept of a designated committee and a defined class of information, with its own statutory exclusions, rather than the “dominant purpose” test the New Brunswick court applied. The specific holdings in this decision are therefore not transportable to Ontario section by section. What does carry over is the analytic posture, and it is the useful part: a claim of quality-improvement privilege is not established by a label. The party asserting it bears the burden, the evidence supporting it has to be specific enough to show the protected purpose, and thin or generic descriptions will be resolved in favour of production. Marking a document “confidential, for quality assurance purposes” is not, by itself, enough.
Issue three: the private health records of other patients
The third issue is where the plaintiff lost, and where the court’s reasoning is most protective of the very people the class action is meant to serve.
The plaintiff sought the names, addresses and contact information of women the hospital had identified as likely class members, and, failing that, an order that the hospital contact them. The instinct is understandable: class counsel want to reach potential members and build the evidentiary picture. But the court refused, and it did so on the strength of a consistent line of class-action privacy authority, including the British Columbia Court of Appeal in Logan v Hong and the decision in Massie v Provincial Health Services Authority, the imposter-nurse class action from British Columbia. The principle those cases stand for is that a patient’s confidentiality is superseded only by an interest of paramount importance, and that recovery of money does not, on its own, outweigh a patient’s right to keep private both the fact of the care they received and their contact details.
The court also drew on Iovine v Toronto Sun Wah Trading, 2014 ONSC 6555, an Ontario decision, for a point about timing. At the common-issues stage, before discovery, class members’ personal health information will often be unnecessary: if the common issues are lost, the information was never needed, and if they are won, each member discloses their own information when they pursue their individual issues later. On that reasoning, the Chief Justice found no interest of paramount importance at this stage that would justify overriding the patients’ privacy, and denied the request without prejudice to it being revisited later in the litigation.
The result is a coherent whole rather than a contradiction. The same decision that pries open the nurse’s employment file and most of the hospital’s internal reviews declines to expose the identities and medical histories of the patients. The distinction is not about how sympathetic each holder of the documents is; it is about relevance and paramountcy. The nurse’s file and the quality-improvement records go to the live common issues about the hospital’s conduct. The other patients’ records do not, at least not yet, and their privacy is treated as an interest that only something of paramount importance can override.
The request for a better affidavit of documents
The plaintiff also asked for an order compelling a further and better affidavit of documents, listing pages of additional material it believed should exist. The court declined. The hospital said it had conducted an exhaustive search, reviewing, on its account, more than 500,000 emails, and that the requested documents either did not exist or were already listed. A court cannot order the production of documents a party says do not exist, and the discovery process itself, through examinations and undertakings, is the proper mechanism for testing that assertion and surfacing anything that has been missed. The one concrete obligation the court did impose is a sensible housekeeping one: to the extent the plaintiff’s requested items are already in the affidavit of documents, the hospital must point to exactly where, so the plaintiff can prepare for the August examinations.
What patients and counsel should take from this
For patients following this litigation, the honest message is that this is a procedural milestone, not a verdict. Certification means the case can proceed as a class action; this decision means the parties can now exchange the documents they need before questioning each other under oath. Neither step is a finding that anyone was negligent or that any patient was harmed. Those questions remain to be decided.
The clinical background is worth stating carefully and no more strongly than the pleadings allow. Oxytocin is a synthetic hormone used to induce or strengthen labour contractions; it is potent, dose-dependent, and given intravenously on a physician’s order under monitoring, precisely because too much can cause contractions that are too frequent or prolonged and, in turn, fetal distress. The allegation in this case is that it was given without an order and without consent. That is an allegation, and how any individual patient’s delivery was actually affected is the kind of question that, as the court in the certification chapter recognized, ultimately turns on patient-specific expert evidence.
For counsel, three through-lines survive the trip across the provincial border as persuasive authority. First, how you plead institutional negligence determines what institutional records you can later obtain; a supervision and systemic-negligence theory opens the employment file that a single-incident claim would not. Second, a hospital’s quality-improvement privilege is a burden to be discharged with specific evidence, not a label to be stamped on a document, and ambiguity about a document’s purpose is resolved in favour of disclosure. Third, patient privacy is a powerful and durable interest: even in litigation designed to vindicate patients, courts will not hand over the identities and health records of non-parties absent an interest of paramount importance, and rarely before the common issues are tried.
The documentary record sits at the centre of every medical malpractice case, which is why these disputes are worth understanding rather than skipping past. For patients, the starting point is often getting hold of your own file: see how to get your medical records in Ontario. For the wider framework of a claim, from the standard of care to causation and limitation periods, see suing for medical malpractice in Ontario.
Decision date: July 8, 2026
Court: Court of King’s Bench of New Brunswick (Chief Justice Tracey K. DeWare)
Jurisdiction note: A New Brunswick decision, persuasive only in Ontario. The quality-improvement privilege turns on section 43.3(2)(b) of the New Brunswick Evidence Act, and the patient-privacy analysis engages New Brunswick’s Personal Health Information Privacy and Access Act; the Ontario analogues (QCIPA and PHIPA) are structured differently.
Citation: Scott v Regional Health Authority B (dba Horizon Health Network) and Ruest, 2026 NBKB 143 (CanLII)
Prior proceedings: Certification denied, 2023 NBKB 209; reversed and class certified, Scott v Regional Health Authority B, 2024 NBCA 146; leave to appeal to the Supreme Court of Canada denied, 2025.
Paul Cahill
Partner, Davidson Cahill Morrison LLP | LSO Certified Specialist in Civil Litigation
Paul represents victims of medical malpractice across Ontario, with trial experience including a $11.5M jury verdict in a birth injury case. He is recognized in Best Lawyers in Canada and serves as trial counsel to other lawyers on complex medical negligence matters.
About PaulMore on medical malpractice in Ontario.
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