I’m served with a subpoena: What should I do? Presented By: Robert Munroe Presented To: Hamilton Medical Legal Society Presentation Date: Thursday, November 13 th, 2014

What is a summons? A summons is a document issued by a court or tribunal

This is what a summons looks like...

Requires a named person to go to a court at a specific time.

To give evidence and produce to the Court all documents relevant to the case

Requires a named person to go to a court at a specific time. To give evidence and produce to the Court all documents relevant to the case Required to stay until released by court or tribunal

A summons is an interference with liberty A summons can be quashed if witness has no relevant or admissible evidence or if it is an “abuse of process” Retained experts are expected to attend court when called without being summonsed. Hamfler v. Mink, 2011 Can LII 86201

This is how you get a summons 1.Must be personal service 2.Cheque for attendance money – $50 per day $3 travel allowance (when in the same city) 24 cents per kilometer within 300 kms 3.Sometimes a letter from a lawyer – “Call me” - BE CAREFUL – Whatever you say might be used in cross examination

Personal Injury Group This is a sample letter

Don’t do this if you get a summons... Fight with the process server Shred the file Burn the file Change the file in any way Add notes to the file Leave town without permissionTalk about privileged information Hand over a copy of your file without court order or authorization from patient/client Hide

Why can’t you hand over your file? Health records legislation –Personal Health Information Protection Act Protection of Privacy Legislation Freedom of Information and Protection of Privacy Act Personal Information Protection and Electronic Documents Act Rules of professional conduct College and Law Society Rules Case Law: Wells v. Paramsothy, 32 O.R. (3 rd ) 452 Cook v. Ip, 1985 CanLII 163 Jennings v. General Motors, 2010 ONSC 5564 Wyndowe v. Rousseay and Privacy Commisioner, 2008 FCA 39

If you breach these confidentiality obligations without authorization or court order you are in BIG TROUBLE!!

What can you do about the summons? Notify client/patient immediately (or if she is represented, the clients lawyer) that summons was received. Recommend that an unrepresented patient obtain independent legal advice. Client, after receiving legal advice, may or may not consent to disclosure. Confirm client/patient’s instructions with a written authorization or instruction. If client does not authorize disclosure of documents and evidence, then lawyers and health professionals have an ethical obligation to oppose a summons and to do their utmost to limit the scope of disclosure. LSUC Rule 3.3-1

What can you do about the summons? If opposing summons, consult with lawyer about applying to have summons set aside/quashed if the trial is not going ahead at those sittings or if no relevant/admissible evidence or if abuse of process; Windsor Family Credit Union v. Barat 2014 ONSC 5898 Elmaati v. Canada (Attorney General), 2014 ONSC 3176 Lauzon v. Axa Insurance, 2012 ONSC 6730 If obliged to attend, advise in writing what your professional fees and expenses will be for preparation and attendance. Chin-Sang v. Bridson (2009) O.J. No Advise that you will be rendering an invoice for this amount as you will be required to cancel your day’s work to attend. Confirm in writing/ with person serving summons when and where you must go.

What can you do about the summons? If disclosure authorized, suggest service of a Request to Admit (including Authenticity) to avoid your attendance and advise that failure to do so will be used in request for increased fees and expenses. Retrieve and organize your file and make a complete copy of it. All requested documents including “Privileged documents” must be brought to trial but not disclosed until patient/client consents or court/tribunal orders. Sometimes a Court will order production but impose a confidentiality term. Your College may have advice and legal helps for difficult situations.

Questions?