[1]         The applicant, the Independent Special Interlocutor for Missing Children and Unmarked Graves and Burial Sites Associated with Indian Residential Schools (the “Special Interlocutor”), seeks leave to appeal from the judgment of the Honourable Mr. Justice Gregory Moore, dated December 14, 2023, which dismissed her application for access to health services and social services records pursuant to s. 19(1) of the Act respecting health services and social services (the “Act”).[1]

[2]         The application sought disclosure by the respondents McGill University Health Centre (the “MUHC”), McGill University and Royal Victoria Hospital and by the impleaded party CIUSSS de l’Ouest-de-l’Île-de-Montréal (the “CIUSSS”) of the archives and records of all patients treated at the Royal Victoria Hospital over a period of 70 years, some of those records dating back to 1887.

[3]         To begin, it is useful to provide an overview of the context in which the application was made.

[4]         On April 20, 2023, the Honourable Gregory Moore, J.S.C. homologated a Rectified Settlement Agreement (the “Settlement Agreement”) signed by certain parties to the proceedings, wherein, among other things, the respondents undertook to provide expedited access to requested records “as permitted by law”. This Settlement Agreement was entered into in the context of broader proceedings instituted by the plaintiffs, also known as “the Mohawk Mothers”, to prevent the defendants from going ahead with excavation work on the site of the former Royal Victoria Hospital and the Allan Memorial Institute, where unmarked graves of Indigenous persons might be located. 

[5]         According to the terms of the Settlement Agreement cited below, respondents’ archives and files were to be provided as permitted by law to the historical research firm “Know History”, which was given the mandate to help determine if Indigenous patients, and especially children, were buried on the grounds of the Royal Victoria Hospital or the Allan Memorial Institute:

[6]         Know History alleged that it faced challenges as the respondents argued that they could not grant access to patient records without the latter’s consent or consent from a family member, adding that no one (including the Mohawk Mothers and the Special Interlocutor) had been able to identify any patients who went missing after receiving treatment at the Royal Victoria Hospital or the Allan Memorial Institute.

[7]         The Special Interlocutor argued that the respondents were not making the utmost effort to provide access to their archives and were using their obligation to protect patient confidentiality as an excuse not to disclose their files. Know History also encountered obstacles in accessing any "finding aides" or indices created by the MUHC that could help narrow its search criteria for the archives.

[8]         In this context, the plaintiffs and the Special Interlocutor filed separate applications[2] requesting the disclosure of all the respondents’ patient records spanning 70 years, in accordance with their interpretation of the Settlement Agreement.

[9]         More specifically, in order to identify missing or deceased patients, determine where potential burial sites might be located and answer critical questions for victims, families, and communities, the Special Interlocutor requested the following:

[10]      The respondents asserted that they had continually co-operated with Know History to assist it in its research and help it navigate through their records. However, they opposed the request as framed since it would irremediably violate the privacy and confidentiality rights of innumerable patients who had not consented to the disclosure. They added that the evidence showed that the order sought was impracticable and disproportionate.

[11]      Justice Moore decided the matter by way of a safeguard order, which raises some questions as the application does not seek to uphold or restore the status quo between the parties to safeguard the rights of the applicant. Notwithstanding the procedural vehicle used, however, after a thorough analysis of the arguments presented by the parties, the judge decided that regardless of the wording of the Settlement Agreement, the respondents were bound by s. 19 of the Act, which stipulates that patient records are confidential and cannot be disclosed without the patient’s consent. He further determined that neither the plaintiffs nor the Special Interlocutor had demonstrated a compelling prima facie right to access the requested medical records of tens of thousands of people.

[12]      He concluded, based on the evidence, that the hospital archives cannot be navigated easily and that research requests ought to be specific. The respondents estimated that the information sought amounts to nearly 200,000 boxes of documents; moreover, patient records, as organized, do not allow searches by date of birth, ethnicity or ancestry, and every record predating 2015 is only available on paper. Locating the files of Indigenous patients at the Royal Victoria Hospital would entail a manual search of tens of thousands of pages of patient records.

[13]      He further noted that Know History’s request reached beyond the scope of the Settlement Agreement. Since neither Know History nor the plaintiffs had identified any patient whose medical file might be in the archives and who had consented to its disclosure, the judge concluded that the request as formulated was broader than what the court could order. Section 19(1) of the Act allows access to some information in “a” patient record, not to all information in every patient’s file over a seventy-year period. If specific patients were to be identified, then special assistance from the Quebec government could then be obtained under the law.[3]

[14]      Finally, he determined as a matter of fact that the evidence demonstrated that the respondents as well as the CIUSSS were using their best efforts to assist Know History in its quest.

[15]      Only the Special Interlocutor seeks leave to appeal.

[16]      For leave to be granted, the Special Interlocutor must satisfy the burden of demonstrating that she meets the criteria of art. 31 para. 2 C.C.P., which provides that:

[17]      The judgement at issue may therefore be appealed with leave if one of the following criteria is satisfied: the decision partly decides the dispute or causes irremediable injury to a party. To the conditions set out in paragraph 2 above, the case law recognizes that the proposed appeal must also satisfy the interests of justice, which entails that it must comply with the rule of proportionality while favouring the sound management of judicial resources (arts. 9 and 18 C.C.P.). Furthermore, it must have a reasonable chance of success: as a matter of principle, the interests of justice are not served by allowing an appeal that is bound to fail.[4]

[18]      Although it was argued before me that art. 32 C.C.P. might apply, as might art. 30(8) C.C.P. as a ruling on execution matters, I will consider the application under art. 31 C.C.P. It is not important for our purposes to resolve this issue, since the result would be the same under any of those provisions.

[19]      The Special Interlocutor argues that the judge made two critical errors of law: First, he interpreted the Act improperly by finding that he had no jurisdiction, since he seems to have construed s. 19 of the Act as being applicable solely to the records of an individual patient. Second, given that a determinative order related to the execution of the Settlement Agreement was sought as provided by art. 659 C.C.P., he erred by applying the art. 158(8) C.C.P. test for a safeguard order. Hence, the Special Interlocutor argues the decision meets the criteria of art. 31 C.C.P. because the decision partly decides the dispute by hindering a key aspect of investigations into unmarked graves and burials. Moreover, she argues that the appeal serves the interests of justice since the judgment overrules applicable precedent without considering the requirements for doing so and is contrary to the intentions of the legislator as expressed through the inclusion of s. 19(1) of the Act. Finally, in the current context, the interests of justice also entail that reconciliation and furthering this goal be taken into account and that the potential national impact of the decision be considered.

[20]      I am of the view that the application for leave to appeal should be dismissed.

[21]      First, the impugned judgment does not determine part of the dispute, nor does it cause irremediable injury to the Special Interlocutor within the meaning of art. 31 C.C.P.[5] The main issue between the parties relates to the archeological work to be performed on site as well as archival and testimonial work to identify potential graves on the grounds of the Allan Memorial Institute and the Royal Victoria Hospital. If the plaintiffs or the Special Interlocutor do identify any Indigenous child, or any patient who went missing after being admitted or receiving treatment at the respondent institutions, and if, following that discovery, they are still of the opinion that the respondents are not acting in accordance with the text or spirit of the Settlement Agreement — i.e., providing, on a best-effort basis, expedited access to their archives — they can very well petition the court accordingly. In other words, the dismissal of their application does not prevent them from making further requests, should circumstances so dictate.

[22]      Secondly, notwithstanding the above, I am of the opinion that it is not in the interests of justice to grant leave, considering the guiding principles of procedure, notably the principle of proportionality.

[23]      Although the judge might possibly have erred in characterizing the nature of his decision as a safeguard order, he nonetheless performed a complete analysis of the applicable legal principles and delved into the main issue, namely, his jurisdiction to entertain the respondents' application under s. 19 of the Act. I fail to see where his judgement is affected, at least on its face, by an error of such a nature as to potentially give rise to an intervention by the Court.[6]

[24]      Thirdly, I believe the appeal has no reasonable prospect of success. The Special Interlocutor’s request significantly exceeds the discretionary power of the judge under s. 19 of the Act.

[25]      Each patient possesses a quasi-constitutional right to privacy, professional confidentiality, and the non-disclosure of confidential information under ss. 5 and 9 of the Quebec Charter of Human Rights and Freedoms.[7] Quebec legislation includes measures aimed at ensuring the confidentiality of hospital records and records of institutions belonging to the social services and health services network.[8] Administrators of establishments are obligated to maintain the confidentiality of information contained in the records under their care and to make exceptions only in cases provided for by law.[9] S. 19 of the Act provides exceptions to the confidentiality of a patient’s medical file, but the Special Interlocutor’s request is not one of them.

[26]      Furthermore, the Act to authorize the communication of personal information to the families of Indigenous children who went missing or died after being admitted to an institution[10] establishes a defined procedure to assist families of missing or deceased Indigenous children in obtaining information from a health and social services institution. The identification of a specific patient and the consent of a family member is required.

[27]      Although courts retain residual discretion under s. 19 of the Act, this discretion must be exercised by balancing an individual patient’s right to privacy with the degree of relevance and importance of the information sought to the issue between the parties.[11]

[28]      In every case, the exercise of this judicial discretion is examined in relation to a specific and identified patient. In the present matter, again, no specific patients have been identified.

[29]      With respect, the applicant is seeking permission to conduct an investigation without boundaries through the entirety of the medical records of the MUHC and the CIUSSS, within specific timeframes, which far exceeds the scope of the Settlement Agreement. These types of searches, especially in the context of pre-trial examinations, are usually prohibited under Quebec civil procedure.[12] Moreover, this request is impracticable and disproportionate: as already mentioned, locating the files of Indigenous patients at the Royal Victoria Hospital would entail a manual search of tens of thousands of pages of patient records, which are not searchable by ethnic or cultural origin, or by physician. Redacting confidential information from these files has been described as “a monumental, time-consuming, imperfect, and impractical undertaking that would demand immeasurable time and resources”.[13]

[30]      This request also significantly exceeds the discretionary power of the judge as the Act does not permit it. Moreover, the applicant has not presented any evidence indicating why, how, and to what extent the privacy and confidentiality rights of individual patients should be waived in the pursuit of justice, under the Frenette[14] analysis.

[31]      Finally, even if these reasons apply inter alia to the CIUSSS, it is worth noting that the latter is not a party to the Settlement Agreement nor was it targeted by the conclusions of the Special Interlocutor’s application.

[32]      Some final comments. The Special Interlocutor forcefully and sincerely asserts that s. 19 of the Act should be interpreted expansively and ambitiously, in light of the principle of reconciliation that must drive the relationship between Indigenous and non-Indigenous peoples. As she emphasized, this principle has been recognized by the Canadian Parliament, as the Supreme Court recently reaffirmed.[15] The context is unique and unprecedented: throughout the past century, numerous Indigenous children were forcibly separated from their families and placed in residential schools, many of whom never returned. Ongoing searches for potential unmarked graves are taking place across the country.

[33]      The Special Interlocutor, who is confronted with this extraordinary situation, asks the Court to devise exceptional solutions to facilitate archaeological research endeavours and argues that the Court should not only entertain the appeal but also establish a novel exception to s. 19 of the Act. This exception would, in fact, empower a court to order access to substantial volumes of confidential medical records without the consent of the individuals or families concerned, and without even needing to identify the persons whose medical records are sought.

[34]      While I understand the Special Interlocutor's approach and have great respect for her concerns, I believe an appellate court cannot disregard legal requirements. The interpretation put forth by the Special Interlocutor would compromise the essential objective of s. 19 of the Act, namely, safeguarding the confidentiality of patients' medical records and, consequently, their right to privacy. The Supreme Court teaches that exceptions to this right to the confidentiality of medical records must be construed restrictively, with every disclosure strictly limited to what is necessary.[16] An exception that would give unlimited access to thousands of medical records is inconsistent with these principles.

[35]      The judge's decision does not foreclose the possibility of reconciliation since it is still possible for the Special Interlocutor and the plaintiffs to submit a new request to the MUHC and the CIUSSS, but in a more limited and specific manner, notwithstanding the difficulties that the specification of such requests may represent.

[36]      DISMISSES the application for leave to appeal, with legal costs.