Protecting Privacy Interests in Personal Injury Actions
Note: This article does not contain legal advice about personal injury. If you would like advice on your specific situation, please contact Spraggs Law.
Vancouver lawyer David O’Neill discusses protecting privacy interests in personal injury actions. At Spraggs Law, David’s practice includes personal injury, residential tenancy, and strata law. Dave has experience navigating the ins and outs of administrative bodies such as residential tenancy branch and civil resolutions tribunal.
Whenever considering pursuing a personal injury action, it’s important to remember how your personal privacy may be affected. This is because personal injury actions invariably lead to the disclosure of private medical information to the other party as the status of a patient’s health and the injuries impacts on the plaintiff’s health. However, also keep in mind there are ways in which you, as a plaintiff, can protect your confidential, private medical information.
In this blog post, we discuss a common way that a person’s private irrelevant medical information is protected in the course of litigation through the use of a Halliday authorization. This authorization allows the party to exclude from production portions of documents that may be privileged, irrelevant or highly private.
Such an authorization is used in the following ways:
- The defendant in an action requests that certain medical records be produced, (for example, a physiotherapist that the plaintiff has seen).
- The plaintiff then provides to the defendant an authorization signed by the plaintiff that the defendant can send to the physiotherapist to produce those records.
There are two different types of authorization forms that are used:
Jones authorization
The first type of form is called a Jones authorization. With this type of authorization, the medical documents requested by the defendant go directly to the defendant who then provides said documents to the plaintiff.
This form of authorization may have privacy implications for the plaintiff.
Halliday authorization
The second type of form is called a Halliday authorization. In this case, medical documents that are requested by the defendant will first go to the plaintiff first. The plaintiff can then redact the medical documents of private and irrelevant medical matters (for example, a common such redaction would be an entry on birth control pills).
Using a Halliday authorization is a common tool that the plaintiff’s counsel will use to protect a client’s privacy interest.
However, what happens if the defendant disagrees, and insists on using a Jones authorization instead? Then there is usually a chambers application where a Court Adjudicator (usually a Master) determines whether a Jones authorization or a Halliday authorization is appropriate given the circumstances.
The test for whether the Court would grant a Halliday authorization is outlined in Gorse v. Staker, 2010 BCSC 119:
[41] The evidentiary burden is not an onerous one [for granting a Halliday order]. The evidence necessary to support a conclusion that the particular records sought are irrelevant will vary according to the content of the pleadings and the nature of the record. In some cases, it may be possible to conclude, on an analysis of the pleadings, that they are irrelevant and, accordingly, not required to be produced at all. When it is apparent that some, but not necessarily all, of the records should be produced, there must be some evidence respecting the content of the records said to require the review by counsel contemplated by a Halliday order.
[42] When the documents at issue are said to be private and irrelevant, it is usually the party who provides the evidence. For example, in Grewal, the plaintiff deposed that the consultation with her gynecologist related to the delivery of her two children and that, in her view, the records were not relevant to the claims that she had advanced. If the question relates to litigation privilege, an appropriate agent or employee of the party’s lawyer should swear to the fact of the communications said to give rise to the privilege without disclosing actual content.
The strategic use of Halliday authorizations is one tool that Spraggs Law uses to ensure that our client’s privacy interests are respected.
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