In will challenges, it is common to seek the disclosure of the testator’s medical records for the period around the time the will was signed. The medical records are directly relevant to the question of whether or not she had the requisite capacity to sign the will. While the testator has a right to privacy that continues after death, the harm caused by disclosure of the records after death is lessened. For these reasons, it is only in the rare case that disclosure of the testator’s medical records is not obtained.

In a twist of the usual fact pattern, in Kinnear v Kinnear, the applicant sought the respondent’s medical records as part of the will challenge proceedings. Without being able to show clear evidence that the medical records were relevant to the proceeding, the applicant’s request was denied.

The testator died in 2016, at the age of 82. In his will, signed in 2015, he left his estate to one of his sons (the respondent), entirely cutting out the other son (the applicant). The applicant brought an application challenging the validity of his father’s will in 2020 (four years after the testator’s death).

The applicant faced a clear limitation problem: the 2014 decision Leibel v Leibel sets out a two-year limitation period to commence a will challenge, subject to the doctrine of discoverability. Addressing the issue head on, the applicant alleged that he did not learn of the will until 2020, when his lawyer obtained a copy of the probate application from the court office.

The respondent argued that the applicant was, in fact, aware of the will since at least 2016. As proof, the respondent alleged that the applicant discussed their father’s will with his psychiatrist and sought disclosure of the psychiatrist’s records. As the source of this belief, the respondent pointed to an email, sent by the applicant in 2016, in which the applicant stated: “You should know that dad wants to make changes with not [sic] acknowledgement that one ever existed I have to prove his words by one DR Michelle Clarke.”

Pursuant to r. 30.10 of the Rules of Civil Procedure, the court may order the production of documents in the possession of a non-party where the document is relevant and not privileged. The 1997 Supreme Court of Canada decision M. (A.) v Ryan set out four requirements to support a claim for privilege over communications:

• The parties believed at the time of the communication that it would not be disclosed.
• Confidentiality was necessary to maintain the relationship between the parties.
• There is a community interest in maintaining the relationship of the parties.
• The interests of protecting the communication from disclosure outweigh the interest of pursuing the trust and disposing correctly of the litigation.

In this case, it was clear that communications with a psychiatrist met the first three criteria. With regards to the fourth, the court held that the respondent did not show that the applicant had, in fact, discussed his father’s will with Dr. Clarke in 2016. The email used in support of that belief was vague and confusing – the applicant himself did not recall what he meant (he admitted that due to mental health issues, his thoughts were often racing). Furthermore, the respondent could pursue other avenues (the drafting solicitor’s file and emails between the parties) to support his claim. Lastly, it would cause a great deal of harm to the applicant to have his medical records disclosed publically: his privacy would be violated he would no longer trust that he could speak freely with his doctor.

Given that the communications were privileged and of questionable relevance, the court held that it was not in the interests of justice to order the disclosure of the respondent’s psychiatric records.

Having lost his motion to compel the disclosure of his brother’s medical records, he was ordered to pay over $13,000 in costs.