What limitations exist, if any, on a defendant’s ability to obtain a plaintiff’s complete medical history, both pre and post incident?

In Alberta a defendant is generally permitted to obtain a plaintiff’s complete medical history, both pre- and post-incident, provided that the records are relevant and material to the issues raised in the pleadings. As such, if there is a discrete health issue that is completely unrelated to the injuries and losses being claimed, a plaintiff can generally argue that those records should be excluded.

The plaintiff has an obligation to produce all records that would be relevant and material to support their claim, and they bear the burden of proving their claim on a balance of probabilities. Typically, medical records are produced by the plaintiff themselves through an Affidavit of Records (Rule 5.6(1) and (2) of the Alberta Rules of Court). Those records are generally obtained by their counsel with appropriate authorization pursuant to the Health Information Act, RSA 2000, c H-5. If the defendant is not satisfied with the documents produced, they can apply to the Court for further and better document production (Rule 5.11) and they can also request undertakings at Questioning for updated and/or further record production (Rule 5.30)

A Defendant may also apply to the Court for production of records which are in the custody and control of a Third Party (Rule 5.13). For example, if a plaintiff has failed to produce a certain doctor’s file, or if the doctor is demanding payment of unreasonable copying fees, the defendant can apply to the court to force production of those from the doctor directly.