Darling v Ewanchuk confirms that personal injury plaintiffs who place their health “at issue” must disclose broadly relevant medical records, even if sensitive. Alberta courts continue to prioritize relevance and materiality over privacy where damages are concerned, provided requests are grounded in the pleadings and not speculative. The decision also cautions against excessive redaction, noting it often leads to delay and disputes rather than efficiency. Importantly, while disclosure does not guarantee admissibility at trial, failing to disclose relevant records may prevent their use later.
Most people consider their medical history to be among their most private and confidential information. However, when a plaintiff commences a personal injury action, a portion of that privacy is inevitably exchanged for the right to seek compensation. Under the “at issue” doctrine, by alleging that a defendant caused physical or psychological harm, a plaintiff places their health squarely at the centre of the litigation. In doing so, they open the door to defence scrutiny of their medical past.
Darling v Ewanchuk offers a modern illustration of just how wide that door can swing. This recent interlocutory decision addresses what is, and is not, producible in personal injury litigation in Alberta. The case arises from a 2014 incident at an Alberta hospital, where the plaintiff alleges negligent treatment resulted in a life‑altering brain injury. While the underlying merits of the case remain to be determined, the decision provides important guidance on disclosure obligations, privacy, and principled redaction.
Disclosure of Records in Alberta
Disclosure in Alberta is governed by the Alberta Rules of Court and is a proactive, ongoing obligation throughout litigation. The scope of disclosure is defined by relevance and materiality, both of which are tied directly to the pleadings.
The leading authority remains Dow Chemical Canada ULC v Nova Chemicals Corporation. Under Dow, information or records relating to facts pleaded in a Statement of Claim or Defence meet the initial threshold of relevance. Materiality is a more exacting requirement: the information must be reasonably expected to significantly assist in determining an issue raised in the pleadings, either directly or indirectly.
Materiality is not a precise science and requires an element of judgment. The party seeking production must advance a “plausible line of argument” demonstrating that the requested information is likely to be material. Courts are entitled to reject requests that are speculative, unrealistic, or lack an “air of reality.” Disclosure is not intended to facilitate fishing expeditions or allow parties to search for potentially useful information without an objective basis to believe the information exists and is relevant to the issues in dispute.
Privacy + the Limits of Confidentiality
While personal health information is inherently private and protected by both statute and common law, the right to confidentiality is not absolute. As confirmed in MBH v CKI, a plaintiff waives some measure of privacy by initiating litigation. Courts have consistently held that privacy cannot be used as a shield to prevent disclosure of records necessary to assess the damages claimed.
If a record may impact the assessment of a plaintiff’s past or present functioning, it is material and must be produced, even if it contains sensitive information. Discomfort or embarrassment alone are insufficient to override disclosure obligations where the information goes to the heart of the claim.
The Practical Realities of Redaction
Parties are entitled to redact irrelevant information, but redactions must be approached with caution. In MBH, the Court considered extensive redactions to medical records that were justified on the basis of irrelevance. The resulting application highlighted a common misconception: that redaction promotes efficiency.
In reality, excessive or aggressive redaction often causes delay, invites suspicion, and leads to costly interlocutory disputes. Courts have rejected the notion that redacting “routine” or “non‑relevant” entries streamline litigation.
Non‑privileged information should only be redacted where three criteria are met: the information is clearly irrelevant under the Rules of Court; the benefit of protecting it outweighs the delay and cost caused by redaction; and the redaction does not render the remaining record misleading or unintelligible.
Why It Matters
A central takeaway from Darling and MBH is that redactions must not be used for strategic or tactical advantage. Counsel cannot “cherry‑pick” portions of a medical history to present a more favourable narrative while concealing information that may undermine it. Courts have been clear that pragmatic counsel will produce documents that are even arguably irrelevant rather than wasting resources on disclosure battles unlikely to succeed.
These cases also reinforce the distinction between disclosure and admissibility. Listing a document in an Affidavit of Records does not mean it will ultimately be admissible at trial. However, failure to disclose a relevant and material record generally results in forfeiture of the right to rely on it, absent a sufficient excuse. This rule is fundamental to preventing trial by ambush and preserving procedural fairness.
Conclusion
Darling v Ewanchuk reinforces a pragmatic and transparent approach to document disclosure in tort litigation. Plaintiffs must understand that by placing their health at issue, broad aspects of their medical history — including sensitive matters — may become producible. At the same time, defence counsel must ground disclosure requests in the pleadings and avoid speculative overreach.
Ultimately, the decision serves as a reminder that openness, proportionality, and practicality remain the guiding principles of disclosure in Alberta litigation. For those involved in personal injury litigation, clarity on disclosure obligations and redaction practices can help keep files moving efficiently. Contact Justine Blanchet in Calgary, Christine Pratt, KC in Edmonton, or any member of our Insurance Group for assistance.
