I’m served with a subpoena:

What should I do?

Presented By:

Robert Munroe

Presented To: Hamilton Medical Legal Society

Presentation Date: Thursday, November 13th, 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.

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 permission Talk 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. (3rd) 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. 1467

• 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/email 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?