Frenette v. Metropolitan Life Insurance Co.

Frenette v. Metropolitan Life Insurance Co.
Collection
Supreme Court Judgments
Date
1992-03-12
Report
[1992] 1 SCR 647
Case number
21765
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret
On appeal from
Quebec
Subjects
Civil procedure
Insurance
Torts
Notes
SCC Case Information: 21765
Decision Content
Frenette v. Metropolitan Life Insurance Co., [1992] 1 S.C.R. 647
Metropolitan Life Insurance Company Appellant
v.
Raymond Frenette Respondent
and
Hôpital Jean‑Talon Mis en cause
Indexed as: Frenette v. Metropolitan Life Insurance Co.
File No.: 21765.
1991: November 6; 1992: March 12.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Gonthier and Cory JJ.
on appeal from the court of appeal for quebec
Civil procedure ‑‑ Production of documents ‑‑ Medical records ‑‑ Form signed by insured at time of life insurance application authorizing insurer to have access to his medical records "for purposes of risk assessment and loss analysis" ‑‑ Insurer investigating cause of insured's death ‑‑ Hospital refusing insurer access to insured's medical records ‑‑ Application of art. 402 C.C.P. ‑‑ Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 5, 9 ‑‑ Act Respecting Health Services and Social Services, R.S.Q., c. S‑5, ss. 7, 8.
Insurance ‑‑ Life insurance ‑‑ Interpretation of contract ‑‑ Insurer's right of access to insured's medical records ‑‑ Form signed by insured at time of life insurance application authorizing insurer to have access to his medical records "for purposes of risk assessment and loss analysis" ‑‑ Insurer investigating cause of insured's death ‑‑ Whether insured waived right to confidentiality of medical records ‑‑ If so, whether hospital should give insurer unrestricted access to insured's medical records ‑‑ Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 5, 9 ‑‑ Act Respecting Health Services and Social Services, R.S.Q., c. S‑5, ss. 7, 8.
Hospitals ‑‑ Medical records ‑‑ Confidentiality ‑‑ Form signed by insured at time of life insurance application authorizing insurer to have access to his medical records "for purposes of risk assessment and loss analysis" ‑‑ Insurer investigating cause of insured's death ‑‑ Whether hospital should give insurer access to insured's medical records ‑‑ Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 5, 9 ‑‑ Act Respecting Health Services and Social Services, R.S.Q., c. S‑5, ss. 7, 8.
The appellant insurer issued a policy on the life of the respondent's son in 1983. Under the policy, on the death of the insured a basic indemnity of $10,000 was to be paid to the respondent ‑‑ the beneficiary of the policy. A rider also provided a supplementary indemnity for accidental death; death resulting from suicide and death from a fatal reaction to unprescribed drugs were expressly excluded risks. At the time he applied for the policy, the insured signed a standard form authorizing the insurer to have access to his medical records "for the purposes of risk assessment and loss analysis". In July 1986, the insured's body was found in a river. The autopsy revealed that the probable cause of death was asphyxiation as a result of drowning but, given the advanced state of decomposition of the insured's body, no chemical tests were performed on the insured's tissues to detect traces of alcohol or toxins. The insurer paid the basic indemnity but refused to pay the supplementary indemnity for accidental death, claiming that the drowning was not accidental but a suicide. These beliefs were based on information gathered from the medical records the insurer had been able to obtain during its investigation. These records indicated that, two days before his disappearance, the insured had been rushed to the emergency ward of the mis en cause hospital possibly for a drug overdose. The respondent took action for the recovery of the supplementary indemnity and refused to authorize the insurer to review the insured's medical records. Despite the insured's 1983 authorization, the hospital also refused to release the medical records. As a result, the insurer brought a motion under arts. 20, 400 and 402 C.C.P. seeking an order compelling the hospital to allow it to examine the entire medical records of the insured. The Court of Quebec dismissed the motion, holding that neither the waiver of the right to non‑disclosure of medical information contained in the policy nor the provisions of the Code of Civil Procedure gave the insurer a right of access to the medical records of its insured for the purpose of its investigation into the circumstances surrounding his death. The majority of the Court of Appeal affirmed the judgment.
Held: The appeal should be allowed.
The authorization signed by the insured in the policy constituted a waiver of his right to the secrecy and confidentiality of his medical and hospital records both for the present and for the future. The terms "for the purposes of risk assessment and loss analysis" in the medical release are unambiguous and do not require interpretation. In choosing to employ the two different terms, "risk" and "loss", the parties unequivocally intended the waiver to apply to two distinct time frames in the life of an insurance policy: (1) the initial investigation required for the formation of the insurance contract; and (2) the investigation which becomes necessary to study the claim of a beneficiary to the supplementary indemnity for accidental death. This conclusion is supported by the ordinary meaning of the words as well as by the meaning given to them by the provisions of the Civil Code in its section on insurance.
A patient's right to the confidentiality of his medical records is a relative right which he may waive without restriction as to scope or time. Various legislative provisions, including s. 9 of the Charter of Human Rights and Freedoms and ss. 7 and 8 of An Act Respecting Health Services and Social Services, permit access to medical records in certain circumstances. One such case is where a beneficiary has given his consent to the release of his hospital records. Where a clear waiver has been given by the holder of the right to confidentiality, the question of the right to privacy in s. 5 of the Quebec Charter is no longer in issue since the holder of the right has, of his own accord, put aside his privacy under the terms and conditions set by him. Once an express or implied authorization has been found, health care facilities must release the information according to the terms of the authorization. In the present case, the hospital was not justified in denying the insurer access to the insured's medical records. The authorization signed by the insured at the time he applied for life insurance clearly gave his insurer an unrestricted right of access to his medical records "for the purposes of risk assessment and loss analysis". No restriction as to the scope of information contained in the records was mentioned by the insured. Thus, the insurer was entitled to have access to the insured's complete medical records provided these records were needed for the purpose stated in the authorization.
Where a health care establishment refuses to release the records requested despite a valid express or implied authorization, or a legislative provision allowing such access, a party may request an order of the court, based on art. 402 C.C.P., compelling the establishment to release such records. In the face of a clear express or implied authorization from the holder of the right of confidentiality, the courts have no discretion and must order the establishment to respect the terms of the authorization. Given the insured's authorization in this case, the court had no discretion but to grant the insurer's request for access to the insured's complete medical records "for the purposes of risk assessment and loss analysis".
However, even if there had been no waiver of the right to confidentiality, or had the authorization not been applicable to the investigation into the cause of death of the insured, the insurer was still entitled, under art. 402 C.C.P., to have access to the insured's complete medical records. Presented with such a motion under these circumstances, a court must exercise its discretion to grant access to medical records according to the degree of relevance and importance of the information sought relative to the issue between the parties. In exercising that discretion, a court must weigh the diverse interests in conflict ‑‑ the interests of justice against the right of privacy and confidentiality of an individual. Here, the cause of the insured's death is the central issue of the case. Access to the information sought becomes inextricably linked to the ability to prepare a full defence. Moreover, these records provide the best evidence or pertain most directly to the cause of the insured's death. As for the scope of access, the complete records of the insured held by the hospital are relevant and should be given to the insurer. Access to the insured's complete medical records would not constitute an unjustified intrusion into his private life. These records covered only a brief period of the insured's life. The nature of the claim puts into question a whole series of events which may have led to the questionable cause of death and renders these medical records crucial to the issue being litigated. In these circumstances, access to these records surely does not constitute a fishing expedition.
Cases Cited
Referred to: Jones v. National Coal Board, [1957] 2 Q.B. 55; Caisse populaire des Deux Rives v. Société mutuelle d'assurance contre l'incendie de la Vallée du Richelieu, [1990] 2 S.C.R. 995; Consolidated‑Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co., [1980] 1 S.C.R. 888; Beischel v. Mutual of Omaha Insurance Co. (1991), 82 Alta. L.R. (2d) 103; Boivin v. Mutuelle d'Omaha (La), Cie d'assurance, Sup. Ct. Roberval, No. 155‑05‑000065‑897, February 22, 1990, unreported; Trempe v. Dow Chemical of Canada Ltd., [1980] C.A. 571; Cordeau v. Cordeau, [1984] R.D.J. 201; Paillé v. Lorcon Inc., [1986] R.D.J. 278; Rousseau (Succession de) v. Groupe Desjardins (Le), Assurances générales, [1989] R.J.Q. 785; Société centrale d'hypothèque et de logement v. Pagé, [1977] C.A. 560; Audet v. Hôtel‑Dieu de Salaberry de Valleyfield, [1974] R.P. 236; Lindsay v. Henri Laflamme Inc., J.E. 89‑760; Rothpan v. 123870 Canada Inc., J.E. 89‑1111; Coffey v. Tran, J.E. 91‑223; Goulet v. Lussier, [1989] R.J.Q. 2085; Taxi Newman Lafleur v. Cie d'assurances Provinces‑Unies, [1991] R.R.A. 411; Impériale (L'), Cie d'assurance‑vie v. Succession de Roy, [1990] R.J.Q. 2468; Robitaille v. Cie d'assurance C.N.A., J.E. 79‑565; Laprise v. Bonneau, [1985] C.A. 9; Hay v. University of Alberta Hospital (1990), 69 D.L.R. (4th) 755; Cook v. Ip (1985), 52 O.R. 289; Furlano v. Calarco (1987), 60 O.R. (2d) 451; Tamssot v. Belgrano (1987), 59 O.R. (2d) 57; Dufault v. Stevens (1978), 6 B.C.L.R. 199; Halliday v. McCulloch (1986), 1 B.C.L.R. (2d) 194.
Statutes and Regulations Cited
Act Respecting Health Services and Social Services, R.S.Q., c. S‑5, ss. 1(a), 7, 8.
British Columbia Supreme Court Rules, r. 26(11).
Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 5, 9, 52, 53.
Civil Code of Lower Canada, arts. 1019, 1056, 1204, 2468, 2499, 2528.
Code of Civil Procedure, R.S.Q., c. C‑25, arts. 2, 20, 399, 399.1, 400, 402.
Medical Act, R.S.Q., c. M‑9, s. 42.
Ontario Rules of Civil Procedure, r. 30.10.
Authors Cited
Bergeron, Jean‑Guy. Les contrats d'assurances (terrestre), t. 1. Sherbrooke: Éditions SEM Inc., 1989.
Bernardot, Alain et Robert P. Kouri. La responsabilité civile médicale. Sherbrooke: Éditions Revue de droit Université de Sherbrooke, 1980.
Birds, John. Modern Insurance Law, 2nd ed. London: Sweet & Maxwell, 1988.
Ducharme, Léo. "Le secret médical et l'article 9 de la Charte des droits et libertés de la personne" (1984), 44 R. du B. 955.
Knoppers, Bartha. "Confidentiality and Accessibility of Medical Information: A Comparative Analysis" (1982), 12 R.D.U.S. 395.
Lajoie, Andrée, Patrick A. Molinari et Jean‑Marie Auby. Traité de droit de la santé et des services sociaux. Montréal: Presses de l'Université de Montréal, 1981.
McLachlin, Beverley M. and James P. Taylor. British Columbia Practice, vol. 1, 2nd ed. Vancouver: Butterworths, 1991 (loose‑leaf).
Molot, Henry L. "Non‑Disclosure of Evidence, Adverse Inferences and the Court's Search for Truth" (1971), 10 Alta. L. Rev. 45.
Morissette, Yves‑Marie et Daniel W. Shuman. "Le secret professionnel au Québec: une hydre à trente‑neuf têtes rôde dans le droit de la preuve" (1984), 25 C. de D. 501.
Norwood, David. Life Insurance Law in Canada. Toronto: Richard de Boo Ltd., 1977.
Quebec. Legislative Assembly of Quebec. Bill 20: Code of Civil Procedure. Québec: Queen's Printer, 1965.
Royer, Jean‑Claude. La preuve civile. Cowansville: Éditions Yvon Blais Inc., 1987.
Solus, Henry et Roger Perrot. Droit judiciaire privé, t. 1. Paris: Sirey, 1961.
Sopinka, John and Sidney N. Lederman. The Law of Evidence in Civil Cases. Toronto: Butterworths, 1974.
Watt, Alastair M. "Le secret professionnel" (1945), 5 R. du B. 189.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 8. Revised by John T. McNaughton. Boston: Little, Brown & Co., 1961.
APPEAL from a judgment of the Quebec Court of Appeal, [1990] R.J.Q. 62, 34 Q.A.C. 143, affirming a judgment of the Court of Quebec. Appeal allowed.
Marzia Frascadore and Marc‑André Blanchard, for the appellant.
Jacques Marquis, for the respondent.
The judgment of the Court was delivered by
//L'Heureux-Dubé J.//
L'Heureux‑Dubé J. -- This appeal raises the question of the right of access of life insurance companies to the hospital records of an insured in the course of an investigation into the validity of a claim for indemnity, in this instance, a supplementary indemnity for accidental death. The resolution of this issue rests upon the wording of the insurance contract, particularly the authorization, signed by the insured, to release medical information, interpreted in the context of the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C‑12 (the "Charter"), and the procedural scheme embodied in the Quebec Code of Civil Procedure, R.S.Q., c. C‑25.
Facts
The appellant insurance company issued an insurance policy on the life of Patrick Frenette, the respondent's son, on November 10, 1983. According to the terms of the policy, on the death of the insured a basic indemnity of $10,000 was to be paid to the beneficiary of the policy. Where the cause of death was accidental, a rider incorporated into the policy provided a supplementary indemnity equal to or double the amount of the basic indemnity. A number of exclusions contained in the rider, however, limited entitlement to this supplementary indemnity; in particular, death resulting from suicide and death from a fatal reaction to unprescribed drugs were expressly excluded risks. At the time he applied for the insurance policy on October 27, 1983, the insured signed a standard form authorizing the appellant insurer to have access to his medical records "[a]ux fins d'appréciation des risques et d'étude des sinistres" ([translation] "[f]or the purposes of risk assessment and loss analysis").
The insured was last seen alive by his mother on July 25, 1986. His body was found by a fisherman in Rivière des Prairies on July 29, 1986. In the coroner's estimation, the body may have been in the water for about five to seven days. An autopsy revealed that the probable cause of death was asphyxiation as a result of drowning. However, given the advanced state of decomposition of the insured's body, no chemical test could be performed on the tissues of the insured to detect traces of alcohol or toxins.
Upon receiving the claim filed by the respondent ‑‑ the policy's beneficiary ‑‑ the appellant paid the sum of $10,000, the basic indemnity under the policy. It refused, however, to pay the supplementary indemnity for accidental death, claiming that the drowning was not accidental but was actually a deliberate act on the part of the insured, i.e., a suicide. The respondent took action on April 22, 1987 in the Provincial Court, district of Montreal (now the Court of Quebec, Civil Division) for the recovery of the supplementary indemnity. In its defence, the appellant insurer reiterated its claim of suicide, and alleged, furthermore, that the insured had a history of chronic alcohol and drug abuse and, at various times in the past (in one instance, by an ingestion of sulphuric acid in 1985), had attempted to commit suicide.
These beliefs or suspicions were based on information the appellant insurer had gathered from the medical records it had been able to obtain during the course of its investigation into the cause of death of the insured. In fact, records of July 24, 1986 ‑‑ the eve of his disappearance ‑‑ indicated that the insured had been rushed to the emergency ward of the mis en cause, Hôpital Jean‑Talon, on the previous day, possibly for a drug overdose after having ingested about 25‑30 Halcion pills together with other drugs. In these circumstances, the appellant asked the respondent, the beneficiary of the insurance policy, to sign an authorization allowing it to review the entire medical record of the insured. The respondent refused. The appellant then presented the original authorization signed by the insured on October 27, 1983 to the hospital requesting the release of the insured's medical records. The hospital also refused, citing hospital practices which prohibited release of medical records except where such original authorizations were signed by the beneficiary of the services within 90 days of the request.
As a result, the appellant brought a motion under arts. 20, 400 and 402 of the Quebec Code of Civil Procedure, seeking an order compelling the mis en cause hospital to allow it to examine and make copies of the entire medical records of the insured, as well as an order against the Régie de l'assurance‑maladie du Québec to release the list of doctors who had treated the insured in the past. (In the Court of Appeal as before us, the second demand was abandoned.) The appellant alleged that the denial of access to the hospital records of its insured would greatly impair its ability to prepare a full and complete defence. Specifically, paragraphs 8 and 9 of its motion read:
[translation] 8. It is in the interests of the defendant‑applicant to be able to examine the complete medical records of Patrick Frenette, and for the mis‑en‑cause to allow it to make copies thereof;
9. Without an order of this Court, the defendant‑applicant will be unable to exercise its right to make full answer and defence;
The Court of Quebec (Civil Division) held that neither the waiver of the right to non‑disclosure of medical information contained in the insurance contract nor the provisions of the Quebec Code of Civil Procedure gave the appellant a right of access to the medical records of its insured for the purpose of its investigation into the circumstances surrounding his death. Consequently, it dismissed the motion. On November 15, 1989, a majority of the Court of Appeal, Malouf J.A. dissenting, dismissed the appellant's appeal: [1990] R.J.Q. 62, 34 Q.A.C. 143.
Judgments
Court of Quebec (Civil Division)
With respect to the written authorization given by the insured to the appellant, the judge concluded that because it was signed prior to the issuing of the policy, it could not apply to medical consultations past that date:
[translation] One thing is certain in this regard: the authorization signed by the deceased cannot be taken into account. It is prior to the issuing of the policy and cannot cover subsequent medical consultations.
The judge also held that the Code of Civil Procedure could not be of help to the appellant since art. 400 C.C.P. is directly concerned with the communication of medical records and applies only in the two following situations. First, where the records sought are those of a person whose "examination has been authorized" under arts. 399 and 399.1; the insured being deceased, in this instance, the first hypothesis had to be excluded. Second, where a civil liability action has been instituted under art. 1056 of the Civil Code of Lower Canada (the "Civil Code") by the relatives of the deceased; clearly such was not the case either. Furthermore, the scope of art. 400 could not be extended by interpretation beyond these two situations as this would encroach upon the right to medical secrecy provided for in s. 42 of the Medical Act, R.S.Q., c. M‑9, and the right to the confidentiality of hospital records guaranteed by s. 7 of An Act Respecting Health Services and Social Services, R.S.Q., c. S‑5, two rights whose fundamental nature are recognized by the Charter in ss. 9, 52 and 53.
Finally, regarding arts. 20 and 402 C.C.P., the trial judge said:
[translation] The defendant's reliance on arts. 20 and 402 C.C.P. is also in vain. The former assumes a "right" for which the Code provides no method of exercise: here the ambient legislation denies the alleged right. Article 402 is a general rule, older than art. 400, to which the latter deliberately creates an exception. Accordingly, the maxim generalia specialibus non derogant means that it cannot be applied to the medical record held by a hospital.
Court of Appeal, [1990] R.J.Q. 62
Baudouin J.A., for the majority, conceded that the authorization signed by the insured in the insurance policy constituted a waiver of his right to the secrecy and confidentiality of his medical and hospital records. However, in his view, the contractual waiver could be interpreted in two ways (at p. 65):
[translation] According to the first interpretation, this is a pre‑existing general waiver of professional secrecy which gives the insurer the right at the time of death, which may occur several years after the policy was issued, to examine all medical and hospital records that may have been prepared on its insured during his lifetime. According to the second interpretation, accepted by the trial judge, this clause on the contrary has a limited effect. The waiver, signed before the policy was issued, cannot be applied to medical consultations subsequent to the policy being issued. The words "loss analysis" should thus be understood as applying to losses already existing at the time of the proposal, which could accordingly affect the insurer's decision to agree or refuse to enter into the contract. [Italics in original.]
Concluding that the waiver was ambiguous, Baudouin J.A. applied the contra proferentem rule. He also questioned whether one could validly give an absolute or unlimited waiver of one's right to the secrecy of one's medical records ‑‑ both for the present and future ‑‑ in view of the fundamental nature of the right to professional secrecy recognized by s. 9 of the Charter . In his opinion, any waiver of such a fundamental right, when possible, must be [translation] "limited, specific and particularized" (p. 65).
With regard to the arguments as to process put forward by the appellant, Baudouin J.A. agreed with the Court of Quebec that such a request for medical records could not be granted under art. 400 C.C.P. since that article only contemplated the two distinct situations set out by the trial judge, neither of which were applicable in this instance. After reviewing the jurisprudence regarding art. 402 C.C.P., however, he expressed the view that the court had discretion to order the communication of medical records under that provision provided that the preconditions set out in art. 402 C.C.P. were respected. When dealing with medical records in the possession of physicians and hospitals, according to Baudouin J.A., the application of art. 402 C.C.P. is limited by two Charter provisions: s. 9 ‑‑ the right to non‑disclosure of confidential information -- and s. 5 ‑‑ the right to privacy. Consequently, two criteria must be weighed when considering the communication of medical records: first, the relevance of the documents sought with regard to the issues between the parties and, second, the protection of the confidentiality of medical records. The latter, being a relative right, may be waived either expressly or implicitly by the holder of that right. Baudouin J.A. stated that, while the jurisprudence had correctly held that an implicit waiver exists where the patient himself makes his physical or mental integrity a central issue ‑‑ such as in a medical malpractice case ‑‑ in the case at bar, a waiver of the right of non‑disclosure of all medical information could not be inferred from the authorization signed by the insured. To effect such a renunciation, in Baudouin J.A.'s opinion, the renunciation must be [translation] "clear, precise and limited" (p. 67). In this instance, not only was there no such renunciation, the order being sought by the appellant was much too broad. The scope of the information sought by the appellant was also, in his opinion, in clear violation of the insured's right to privacy guaranteed by s. 5 of the Charter and tantamount to a "fishing expedition". Consequently, he dismissed the appeal.
In concurring reasons, Gendreau J.A. was generally in agreement with Baudouin J.A. with respect to the interpretation of art. 402 C.C.P. He too ruled that medical records could be considered a document within the meaning of art. 402 provided they met the conditions set out in that provision. However, in his view, the order sought by the appellant in this case failed to meet these conditions and constituted a "fishing expedition". Accordingly, he observed at p. 73:
[translation] In short, though art. 402 C.C.P. may authorize access to documents held by third parties, it is not a blanket authorization to obtain communication of documents, especially when their secrecy is protected by law (ss. 7 and 8, An Act respecting health services and social services, R.S.Q., c. S‑5, and Medical Act, s. 42, R.S.Q., c. M‑9). In my opinion the appellant has not shown in the case at bar that it was entitled to the conclusion sought because, first, the complete medical record of its insured is a document relating to the issues within the meaning given to that expression by this Court, and second, he was entitled to have the confidentiality provisions enacted by the legislature overridden.
The contractual waiver signed by the insured, in his view, should receive restrictive interpretation as it was part of an adhesion contract (contrat d'adhésion) and involved privileged information whose confidentiality is expressly protected by legislation (the Medical Act, An Act Respecting Health Services and Social Services and the Charter). Using Baudouin J.A.'s words, Gendreau J.A. agreed that a valid renunciation of this privilege must be [translation] "clear, express and limited" (p. 74). Unlike Baudouin J.A., however, Gendreau J.A. found the terms "loss analysis" not to be ambiguous; to him the "loss" in question clearly referred to the death of the insured. However, in his view, such an authorization must be limited in its scope (at p. 74):
[translation] . . . with respect, I cannot agree that examining the causes of death embraces an investigation of the entire private life of an insured contained in his medical record. The living habits, even the misconduct, of an insured that may be assumed from reading a medical record are certainly not included in the authorization signed. . . .
Finally, while the insurer has an interest in the causes of death, it does not, in my opinion, have any concern with anything else. . . . It has no right to define itself what is and is not useful, pertinent and related to analysing the loss, after reading the entire record: it must provide details and proof to the court from which the authorization is requested, as to what it is entitled to have.
Consequently, he concurred with the result reached by Baudouin's J.A.
Malouf J.A., dissenting, would have allowed the appeal on the basis of the waiver contained in the insurance policy. In his view, the terms of the waiver were not ambiguous and the intention of the parties was clear: in using two distinct terms "risk" and "loss", they intended the waiver to be applicable to two distinct stages in the investigative process relating to an insurance policy: the initial stage of appraising the risk, setting the premium and deciding to undertake the risk, and the final stage of determining the liability of the insurer under the policy. This conclusion was supported by a literal interpretation of the terms of the waiver, the ordinary meaning of the words, as well as the meaning given to them by the provisions of the Civil Code in its section on insurance. Accordingly, the term "risk" refers to [translation] "a future event, certain or uncertain, which may occasion loss" in relation to facts existing at the time of the application for insurance, while the term "loss" can only refer to [translation] "the realization of the risk and the determination which the insurer may make at that time". In Malouf J.A.'s view, the fact that the waiver was signed at the time of the application for insurance does not affect the insurer's right of access to the medical records of the insured for its investigation of the circumstances surrounding the latter's death. By signing the authorization to release his medical records, the insured in effect waived his right to the confidentiality of his records in favour of the appellant insurer as of the date of signing. Such a waiver survived the death of the insured. In spite of this conclusion, however, Malouf J.A. found that the order sought by the appellant was too broad. Consequently, he would have allowed the appeal but would have limited access to only those documents which are clearly material to the liability of the insurer, i.e., those which [translation] "refer directly or indirectly to the events leading to his death" (p. 71).
Relevant Legislative Provisions
Charter of Human Rights and Freedoms, R.S.Q., c. C‑12
5. Every person has a right to respect for his private life.
9. Every person has a right to non‑disclosure of confidential information.
No person bound to professional secrecy by law and no priest or other minister of religion may, even in judicial proceedings, disclose confidential information revealed to him by reason of his position or profession, unless he is authorized to do so by the person who confided such information to him or by an express provision of law.
The tribunal must, ex officio, ensure that professional secrecy is respected.
52. No provision of any Act, even subsequent to the Charter, may derogate from sections 1 to 38, except so far as provided by those sections, unless such Act expressly states that it applies despite the Charter.
53. If any doubt arises in the interpretation of a provision of the Act, it shall be resolved in keeping with the intent of the Charter.
An Act Respecting Health Services and Social Services, R.S.Q., c. S‑5
1. In this Act . . . the following expressions and words mean:
(a) "establishment": a local community service centre, a hospital centre, a social service centre or a reception centre;
. . .
7. The medical records of the beneficiaries in an establishment shall be confidential. No person shall give or take verbal or written communication of them or otherwise have access to them, even for an inquiry, except with the express or implied consent of the beneficiary, or on the order of a court, or the coroner exercising his duties or in cases where an Act or regulation provides that such communication is necessary for its administration. The same shall apply to the records of beneficiaries receiving social services from an establishment.
A professional, however, may examine such records for study, teaching or research, notwithstanding subparagraph 5 of the second paragraph of section 59 of the Act respecting Access to documents held by public bodies and the Protection of personal information (chapter A‑2.1), with the permission of the director of professional services of the establishment which keeps such records or, failing such a director, with the permission of the director general, in accordance with the criteria established in section 125 of the said Act.
A beneficiary shall have the right to obtain that the establishment send to another establishment or to a physician or dentist designated by him, a copy, extract or abstract of his record, in accordance with the regulations.
Where an establishment provides a person with nominative information of a medical or social nature concerning him contained in his record, it shall, upon the request of the beneficiary, provide him with the assistance of a professional qualified to help him understand the information.
An establishment may refuse for the moment to give communication to a beneficiary of nominative information concerning him contained in his record where, in the opinion of his attending physician, it will likely be seriously prejudicial to his health. In such a case, the establishment, on the recommendation of the attending physician, shall determine when the information may be communicated and shall inform the beneficiary.
A beneficiary to whom an establishment refuses, for the moment, access to nominative information concerning him may, by way of a motion, apply to a judge of the Superior Court, of the Court of Québec, or to the Commission, for a review of the decision. He may also apply to the Commission d'accès à l'information.
Notwithstanding section 83 of the Act respecting Access to documents held by public bodies and the Protection of personal information, no beneficiary has the right to be informed of the existence or to take communication of nominative information concerning him given by a third person which is contained in his record, where knowledge of the existence thereof or the communication thereof would make it possible to identify the third person, unless that person has agreed in writing to the disclosure of such information and the source thereof to the recipient.
The seventh paragraph does not apply where the nominative information was furnished by a health or social services professional or by a member of the staff of a health or social services establishment.
8. The following may also take communication of the record of a beneficiary:
(a) the heirs and legal representatives of a beneficiary, including the mandatary of an incapable person of full age;
(b) (subparagraph repealed);
(c) the holder of parental authority in regard to the record of a minor;
(d) a person entitled to the payment of a benefit under a life insurance policy of a beneficiary.
Notwithstanding the first paragraph, the heirs of a recipient shall not be given communication of the record of that recipient, except for the purposes of exercising their rights as heirs.
Similarly, no person who is entitled to the payment of a benefit under an insurance policy on the life of a recipient may be given communication of the record of that recipient, except for the purposes of establishing his rights to the benefit.
A minor under fourteen years of age is not entitled, within the scope of an application to have information communicated to him or rectified, to be informed of the existence or take communication of nominative information of a medical or social nature concerning him contained in the record held by the establishment. This paragraph does not have the object of restricting normal communications between a beneficiary and a health or social services professional or a member of the staff of a health or social services establishment.
This section applies notwithstanding the first paragraph of section 94 of the Act respecting Access to documents held by public bodies and the Protection of personal information (chapter A‑2.1).
Medical Act, R.S.Q., c. M‑9
42. No physician may be compelled to declare what has been revealed to him in his professional character.
Code of Civil Procedure, R.S.Q., c. C‑25
400. A court may order a hospital to allow a party to examine and make copies of the medical record of the person whose examination has been authorized or whose death gave rise to an action under article 1056 of the Civil Code.
402. If, after defence filed, it appears from the record that a document relating to the issues between the parties is in the possession of a third party, he may, upon summons authorized by the court, be ordered to give communication of it to the parties, unless he shows cause why he should not do so.
The court may also, at any time after defence filed, order a party or a third person having in his possession any object relating to the issues between the parties to exhibit the same on such conditions, at such time and place and in such manner as it deems expedient.
Relevant Contractual Provisions
The authorization to release medical information found in the insurance contract reads as follows:
[translation] Authorization form and acknowledgment of receipt
For the purposes of risk assessment and loss analysis, I give permission to:
‑ any physician or other medical practitioner, hospital, clinic, other medical institution, consumer reports agency or medical information bureau to provide to Metropolitan medical information concerning me. Such information shall include findings made as a consequence of medical care, psychiatric or psychological care or examinations and surgical treatment in my case. . . . [Emphasis added.]
The rider providing a supplementary indemnity in case of accidental death is to the following effect:
[translation] Metropolitan Life Insurance Company
Rider: Warranty in the event of accidental death
This rider forms part of the
policy if mentioned on page 3
This rider provides additional insurance if the insured dies as the result of an accident.
If we receive proof that the insured died directly and independently of any other cause as the result of an accident, we shall pay under this rider:
1.an amount equal to the nominal insured capital;
OR
2.an amount equal to twice the amount mentioned in 1 above, if we receive proof that the accident occurred while the insured was a paying passenger in a licensed public vehicle operated by a public carrier for passenger service.
Risks not covered ‑ No payment will be made if the death:
1.occurs before the insured's first birthday;
2.occurs over 90 days after the accident;
3.is caused in whole or in part, directly or indirectly, by a physical or mental illness or treatment for the illness;
4.is caused in whole or in part, directly or indirectly, by any infection caused by a visible external injury suffered accidentally;
5.is caused in whole or in part, directly or indirectly, by the use of any drug, unless used on the advice of a physician licensed to practise;
6.results from suicide, while of sound mind or otherwise;
7.results from the commission of, or attempt to commit, assault or a criminal offence;
8.results from a journey in an aircraft or the descent of that aircraft while it was in flight, if the insured
(a) acted otherwise than as a passenger, or
(b) was on board a non‑military flight for the purpose of making a descent from the aircraft while it was in flight . . . [Emphasis added; italics in original.]
Issues
As previously stated, the main issue on this appeal is whether the appellant, a life insurance company, has the right to obtain access to the medical records of its insured in the possession of Hôpital Jean‑Talon ‑‑ a third party to the litigation ‑‑ which may contain information relevant to the cause of death of the insured. In answering this question, it must be remembered that: (1) at the time of application for life insurance, the insured had signed an authorization to release information from the medical record "[f]or the purposes of risk assessment and loss analysis