CHAPTER 3

EVIDENCE

3.3 Admissibility of Evidence

3.3.4 Professional and medical secrecy

Administrative tribunals may be bound by a statutory duty of professional secrecy. However, the statutes that contain them are provincial. Are federal boards bound?

We have seen that provincial professions statutes do not apply to the federal Crown, but professional privileges designed to protect citizens from disclosure of information obtained by professionals as part of a confidential relationship are another question entirely. Moreover, at common law, there are equivalent principles governing professional confidentiality of lawyers and other professionals.

In Quebec, s. 9 of the Charter of Human Rights and Freedoms states that "[e]very person has a right to non-disclosure of confidential information" and that "[n]o person bound to professional secrecy by law . . . 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." In addition, "[t]he Tribunal must, ex officio, ensure that professional secrecy is respected." Since common law rules in other provinces provide the same protection, we believe federal tribunals in Quebec must apply the province's professional secrecy framework.⁴⁵⁰ In other provinces, the provincial statutory framework will also apply according to s. 40 of the Canada Evidence Act.

The confidentiality of medical records is addressed mainly in provincial statutes,⁴⁵¹ but the issue arises also before federal administrative tribunals. However, administrative tribunals may require the production of medical records, and patients may expressly or implicitly consent to the disclosure of such records. For example, any person who puts his medical condition in issue before a court or tribunal has implicitly waived the confidentiality of his medical records.⁴⁵²

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