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Accused Abuser Doesn’t Have to Produce Psychological Records

Reasons for judgement were recently released in the case of B.M.B v. Fallona et al. .

The plaintiff B.M.B. filed a claim accusing the defendant Fallona, a Roman Catholic priest, of sexually assaulting her.

B.M.B. applied to court for an order requiring Fallona to produce a copy of various physicians’ records who provided mental health services to the priest.

The defendants refused to provide the records.

Lawyers for B.M.B.argued that because she was a minor when she was allegedly sexually assaulted, the defendant priest, Fallona met the definition of a pedophile as defined in the 4th edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Health Disorders.

Therefore, argued B.M.B.’s lawyers, Fallona’s mental health records were relevant to her lawsuit.

Justice McDermid reviewed the evidence submitted in support of B.M.B’s application.

There was no medical evidence to indicate that the defendant had ever been diagnosed with pedophilia.

Justice McDermid stated in his decision:

“Generally speaking a plaintiff is entitled to disclosure of documents “relevant to any matter in issue in the action that is or has been in the possession, control or power of a party to the action” pursuant to R 30.02. Are Fallona’s medical records relevant to an issue in this action? It is elemental that the pleadings define the issues. There is no allegation in the statement of claim, either directly or inferentially, that Fallona is or was a pedophile at the relevant time or indeed at any time.

Therefore, in my opinion, there is nothing in the statement of claim that puts Fallona’s mental health in issue as between the plaintiff and Fallona. What the plaintiff alleges is that Fallona committed one or more sexual assaults, a physical act, against her. For the purposes of her claim for damages arising from those sexual assaults, Fallona’s mental health is not relevant. Moreover, the statement of defence does not put his mental health in issue.”

Justice McDermid denied B.M.B.’s request for an order requiring Fallona to produce his psychological and psychiatric records.

Lesson Learned?

It is trite to say that the pleadings (Notice of Claim) form the basis of the plaintiff’s claim. The facts alleged and causes if action claimed in the plaintiff’s notice of action form the foundation for all subsequent steps in the legal proceedings.

For the purposes of the motion, the court had to assume that the facts, as pleaded, were true. If B.M.B.’s Notice of Claim alleged that the defendant was a pedophile, or otherwise alleged facts that put Fallona’s mental health at issue, it is clear that McDermid J. would have ordered production of the defendant’s mental health records.

Sometimes as lawyers we do not give enough thought at the beginning of a proceeding as to how the claim might develop as the matter proceeds. This decision simply points out that drafting the Notice of Claim is not just the first step in the litigation process; it may be the most important step.

UPDATE

I have been contacted by the plaintiff in this case, B.M.B. and she tells me that she has filed an appeal of Justice McDermid’s decision.

I wish her the best of luck and applaud her for having had the courage to come forward.

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For almost twenty years I have dedicated my practice to representing survivors of childhood sexual abuse. I wrote Breaking the Silence: The Survivor’s Guide to Sexual Abuse Claims so that abuse survivors and their families can get good solid information about their legal options, privately and confidentially.

If you would like a copy of Breaking the Silence, you can buy a copy of the book on Amazon or you can receive a free copy of the book by contacting me through this blog, or my website at www.apmlawyers.com or by calling toll free in Atlantic Canada 1-866-974-8281.