information confidential and the duty of the physician to act
with utmost good faith and loyalty. At paras. 28-29, Justice La
Forest made several points, once again, particularly important
to the case at bar, about how equitable duties are contextual and
not absolute and about the nature of equity’s intervention which
is also flexible and contextual; he stated:
While patients should, as a general rule, have access to their medical rec-
ords, this policy need not and, in my mind, should not be pursued blindly.
The related duty of confidentiality is not absolute. In Halls v. Mitchell,
supra, at p. 136, Duff J. stated that, prima facie, the patient has a right to
require that professional secrets acquired by the practitioner shall not be
divulged. This right is absolute unless there is some paramount reason that
overrides it. For example, “there may be cases in which reasons connected
with the safety of individuals or of the public, physical or moral, would
be sufficiently cogent to supersede or qualify the obligations prima facie
imposed by the confidential relation”. Similarly, the patient’s general right
of access to his or her records is not absolute. The patient’s interest in his or
her records is an equitable interest arising from the physician’s fiduciary
obligation to disclose the records upon request. As part of the relationship of
trust and confidence, the physician must act in the best interests of the
patient. If the physician reasonably believes it is not in the patient’s best
interests to inspect his or her medical records, the physician may consider it
necessary to deny access to the information. But the patient is not left at the
mercy of this discretion. When called upon, equity will intervene to protect
the patient from an improper exercise of the physician’s discretion. In other
words, the physician has a discretion to deny access, but it is circumscribed.
It must be exercised on proper principles and not in an arbitrary fashion.
Where a person, in this case a doctor, is under a fiduciary duty to inform
another, equity acts in personam to prevent that person from acting in a
manner inconsistent with the interests of the person to whom the duty is
owed. As stated by Dickson J. (as he then was) in Guerin v. The Queen,
 2 SCR 335, at p. 384:
. . . where by statute, agreement, or perhaps by unilateral undertaking,
one party has an obligation to act for the benefit of another, and that
obligation carries with it a discretionary power, the party thus empow-
ered becomes a fiduciary. Equity will then supervise the relationship by
holding him to the fiduciary’s strict standard of conduct.
I hasten to add that, just as a relationship may be fiduciary for some purposes and not for others, this characterization of the doctor’s obligation as
“fiduciary” and the patient’s interest in the records as an “equitable interest”
does not imply a particular remedy. Equity works in the circumstances to
enforce the duty. This foundation in equity gives the court considerable discretion to refuse access to the records where non-disclosure is appropriate.
[ 127] For present purposes, the points to note and to carry
forward into the analysis that follows are that when a doctor is
under a fiduciary duty, equity acts in personam to prevent the
doctor from acting in a manner inconsistent with the interests of
the patient to whom the duty is owed and that equity will intervene to protect the patient from an improper exercise of the physician’s discretion.