Documentary discovery is a key and integral step in the litigation process, as it assists the parties to know the case they have to meet. In defending a medical malpractice claim where a plaintiff’s injuries can be complex, the evidence obtained through documentary discovery can be crucial to understanding the extent of a defendant’s exposure and risk.
Under the Rules of Civil Procedure, evidence relevant to any matter in issue in an action that is or has been in the possession, control, or power of a party to the action shall be disclosed in the documentary discovery process. There is a plethora of jurisprudence on the concept of relevance, but it is generally accepted that evidence is relevant if it has a tendency to prove or disprove a fact in issue or is logically probative of the fact for which it is tendered. In practice, this is a low bar. However, the potential relevance of a piece of evidence is not the only or deciding factor in terms of a production obligation in the discovery process.
The Ontario Superior Court of Justice has released a new decision wherein a plaintiff’s privacy interests were held to be sufficient to block the production of video records, despite such evidence being clearly relevant to an issue in dispute.
Ibrahimova et al v. Cavanagh et al, 2025 ONSC 1152 concerned a medical malpractice action. The Plaintiffs were seeking damages sustained in connection to injuries that included a septic pregnancy loss resulting in the mother’s near-death experience, kidney injury and transplantation, and even a below-knee amputation. The defendants were three doctors.
The Defendants sought an order for the production of video/audio records from the plaintiffs’ in-home camera system. While Justice Shaw recognized that these videos were clearly relevant to the issue of the Plaintiffs’ future care, she declined to order their production, instead finding that the plaintiffs’ privacy rights and interests prevailed. Justice Shaw’s reasoning extended upon the Supreme Court’s reasoning in M.(A.) v. Ryan, 1997 CanLII 403 ONSC where the court rejected the suggestion that a party gives up their right to privacy by commencing an action for damages.
This does not however mean that the production of any evidence that might be considered to be a breach of a Plaintiff’s privacy rights will always occur. The production of evidence is at its core a balancing act. Further, in keeping with Ryan, Justice Shaw acknowledges that the court must determine if the invasion of privacy rights is necessary to the proper administration of justice. Justice Shaw noted that the defendants had an OT assessor attend the Plaintiffs’ home to assess the Plaintiff’s abilities to perform activities in the same way it was depicted in the videos, so there was already evidence establishing her abilities in addition to her evidence given at her examination for discovery. Furthermore, the purpose of having the cameras was not to capture and store videos with the intent of posting or sharing them, but to monitor the Plaintiff’s safety in the home. Justice Shaw further distinguished this case from cases advanced by the Defendants with respect to evidence on social media platforms; in such cases, there is no serious expectation of privacy as such content posted on social media is meant to be shared with others viewing the platform.
Thus, if there was no other means by which similar evidence related to the issue in dispute could be obtained, then it is possible that similar evidence could be ordered to be produced. Or, if the facts were such that there was no actual, serious expectation of privacy in the evidence, then that may also render it producible. A Plaintiff’s privacy interests in certain evidence might prevent its production, but a right to privacy protection is certainly not to be taken as automatic. In other words, this needs to be considered on a case-by-case basis.
Branson Wong is an associate at the firm and a member of the Health Law practice group. If you have a question about this decision or a similar file, please contact Branson at 416-777-7387.
