Ipsofactoj.com: International Cases  Part 2 Case 4 [SCC]
SUPREME COURT OF CANADA
Smith & Nephew Inc
- vs -
20 MAY 2005
(delivered the judgment of the court, English version)
This appeal raises a problem relating to the application of the physician’s duty of professional secrecy. At issue is access to the psychiatric record kept by a physician consulted by a patient who is suing her attending physicians and the manufacturer of a metal prosthesis used by one of them to perform a reduction on her fractured femur. In respect of objections made during examinations on discovery to questions and to requests to produce documents, the Quebec Court of Appeal reversed an interlocutory judgment of the Superior Court ordering the production of a record of psychiatric consultations. In my view, the respondent had waived professional secrecy in the circumstances of this case, and the appellants had furnished sufficient proof that the production of the record would be useful to them in conducting their defence at the examination on discovery stage while readying the case for trial. Consequently, as I will explain in the reasons that follow, I would allow the appeal. I would restore the Superior Court’s judgment, which dismissed the respondent’s objections to production of the medical record in issue.
II. ORIGIN AND HISTORY OF THE CASE
The case began when Ms. Glegg had an unfortunate accident. On July 9, 1996, she fell off a bicycle and fractured her right femur and her hip. After she was taken to a hospital, one of the appellants, Dr. Carter, an orthopedic surgeon, performed a surgical reduction of the fracture. As part of this procedure, he inserted a metal implant manufactured and sold by the appellant Smith & Nephew Inc. Dr. Carter conducted the medical follow‑up that is normal in such cases. On May 26, 1997, the respondent consulted another orthopedic surgeon, Dr. Dextradeur, who is also an appellant in this case, about pain she was suffering in one of her feet. On December 11, 1997, after confirming the consolidation of the fracture, Dr. Carter performed a second operation in which he removed the implant.
The respondent complained of suffering intense pain between the two operations. She said that she was unable to work because of the pain. As a result, she filed an action in damages against Drs. Carter and Dextradeur and against Smith & Nephew Inc. on March 31, 2000. The suit against the two physicians alleged that they were professionally liable for their failure to foresee, diagnose or treat allergic reactions caused by the implant and to provide the respondent with sufficient information about the implant’s characteristics. The basis of the action against the manufacturer was that its product was dangerous and that insufficient information was provided regarding the risks involved in having it implanted.
The respondent claimed $4,655,000 from the appellants solidarily. The declaration sought, inter alia, $2,000,000 for pain and suffering, shock, nervousness and loss of enjoyment of life. According to the allegations, allergic reactions to the insertion of the implant together with pain caused by the implant itself left the respondent disabled and unable to work. They also allegedly triggered a reactive depression.
After the action was served, counsel for the appellants followed the usual procedures of requesting the production of documents and holding an examination on discovery. Before the filing of the defence, they summoned Ms. Glegg for an examination on discovery pursuant to art. 397 of the Code of Civil Procedure, R.S.Q., c. C 25 (“C.C.P.”). In reviewing the file and examining the respondent in 2000, the appellants learned that Dr. Pratt, a dermatologist consulted by the respondent about hypersensitivity she experienced after the fracture reduction, had advised her to consult a psychiatrist, Dr. Gawlik. The respondent then confirmed that she had suffered from depression after the accident and the operations. She acknowledged that she had been consulting Dr. Gawlik on a regular basis since November 1999 because of psychological problems caused by these events.
The examination on discovery resumed on April 24, 2002. Counsel for the appellants asked Ms. Glegg further questions about her consultations with Dr. Gawlik. She said that she had consulted him approximately 40 times between November 1999 and November 2000. The appellants requested the disclosure of Dr. Gawlik’s record. At this point, counsel for the respondent put on the record an undertaking to produce the documents, although the undertaking was made without prejudice and with an indication that the matter would be discussed later. The examination was then adjourned. On July 10, 2002, counsel for the respondent informed the appellants that his client did not consent to the production of Dr. Gawlik’s clinical notes due to the confidential nature of these documents.
A few weeks later, on August 1, 2002, counsel for the respondent sent the appellants a draft letter, apparently prepared by Dr. Gawlik, to a federal public servant responsible for reviewing applications for disability benefits under the Canada Pension Plan. This document confirmed that the consultations had taken place and gave some explanations regarding the circumstances that had caused Ms. Glegg to consult him. However, the portion of the letter regarding the diagnosis had been deleted. Meanwhile, on July 11, 2002, the appellants’ expert psychiatrist, Dr. Bourget, had met with Ms. Glegg and conducted his own medical assessment. On September 25, 2002, this expert reported his findings to the appellants. He stated that he felt Dr. Gawlik’s record would be highly relevant to and useful for the purpose of assessing the respondent’s psychiatric condition and forming an expert opinion on the subject. Upon receiving this information, the appellants once again requested the disclosure of Dr. Gawlik’s record. The respondent still refused to consent to its disclosure. Consequently, a few months later, the parties appeared before the Superior Court for a decision on the objection to disclosure of Dr. Gawlik’s record. By that time, the appellants had filed their defences. The objection was heard by Baker J. A new lawyer was now representing Ms. Glegg. The firm that had been representing her had recently transferred the case to him.
Unfortunately, reconstructing the progress and content of the proceeding before Baker J. is somewhat difficult. In accordance with standard practice, counsel for the parties attended at the judge’s chambers to make submissions on the objections raised during the examination on discovery of Ms. Glegg. At that time, the judge took cognizance of the pleadings and of the transcript of the examination. As this part of the proceedings took place in chambers rather than in the courtroom, the courthouse’s recording system did not record the parties’ representations or the exchanges between them and the judge. Nor was a stenographer present with counsel in the judge’s chambers. Consequently, the only written record of this legal proceeding appears in the minutes of the hearings of February 25 and 27, 2003.
On February 25, an initial hearing took place in the chambers of Baker J. The minutes of the hearing contain only a transcript of a decision rendered by the judge. This decision ordered Mr. Desjarlais, Ms. Glegg’s lawyer, to return on February 27, 2003, with a portion of the cases of documents he had received from his predecessor [translation]:
The Court orders counsel to appear on Thursday, February 27, 2003, in Room 14.21 and orders Mr. Desjarlais to bring with him the boxes of documents from Mr. Samuel containing the reports or notes of Dr. Gawlick [sic].
Diane Bourbonnais, Clerk
The second hearing was held as scheduled on February 27, 2003. Baker J. dismissed the objection to disclosure of Dr. Gawlik’s record that had been made during the examination on discovery. That decision is the one at issue in this appeal. The minutes are silent as to the substance of counsel’s arguments and Baker J.’s reasons. They mention only the attendance of counsel and the disposition of the judgment [translation]:
2:35 p.m. Case continued from February 25, 2003.
Representations of Ms. Dugré.
Representations of Mr. Desjarlais.
The objection at page 50 of the examination of Louise Glegg is dismissed.
Before the decision of the Quebec Court of Appeal is discussed, what took place in the Superior Court must be understood and explained. This subject was broached in a number of questions and exchanges at the hearing before this Court. From the circumstances of the examination, I am convinced that counsel for the appellants wanted to obtain the notes in Dr. Gawlik’s record. At the first hearing, on February 25, counsel for the respondent did not have those notes in his possession. Baker J. requested that the file containing the notes be produced so that he could rule on the objection. The order could have been more specific. Nevertheless, in the circumstances, the request made to counsel was clear: he was to produce the medical record. On February 27, counsel produced the files that had been transferred to him by the colleague who had formerly represented Ms. Glegg. Dr. Gawlik’s notes were not in them. It can be presumed that counsel was acting upon his client’s instructions in failing to produce them in the Superior Court. However, counsel could not justify this failure by arguing that the terms of Baker J.’s order were vague, as the order was sufficiently clear in the circumstances in which it was made. The judge’s order could have concerned nothing other than the notes from the interviews with the respondent. It must accordingly be concluded that the respondent failed to comply with the judge’s order. Consequently, Baker J. dismissed the objection on the basis that the respondent had not permitted him to verify the grounds for it. The respondent appealed from this decision, and the Court of Appeal ruled in her favour: Q.J. 13292 (QL).
The Court of Appeal allowed the appeal and ordered that the case be referred back to the Superior Court. The Superior Court was to resume its consideration of the case so as to determine which portions of the psychiatric record were relevant and should be disclosed; in so doing, it was to hear both sides and, if necessary, hold the hearing in camera. The decision stressed the importance of the physician’s duty of professional secrecy, particularly in the field of psychiatry.
The Court of Appeal acknowledged that, while the institution of medical malpractice proceedings may involve an implied waiver of secrecy, this waiver is limited by the principle of relevance. Although the right to defend oneself must be protected, it is also important to protect the right to privacy raised by the psychiatrist-patient relationship. On this point, the Court of Appeal was of the opinion that this Court’s decision in Frenette v Metropolitan Life Insurance Co.,  1 S.C.R. 647, was not the final word of the courts on the disclosure of medical and hospital records and on waiver of the confidentiality of such records, especially in the field of psychiatry. In the Court of Appeal’s view, M. (A.) v Ryan,  1 S.C.R. 157, had given greater weight to the right to privacy and imposed a more onerous burden on someone wishing to gain access to a patient’s psychiatric record. The Court of Appeal also criticized the approach adopted by the appellants to gain access to the psychiatric record. Instead of making the request in the course of an examination on discovery, the defendants should have served a motion to produce the medical record pursuant to art. 402 C.C.P. Had they done so, the debate could have been structured more appropriately and all relevant questions of fact and law could have been incorporated into it. The Court of Appeal’s judgment is now the subject of the appeal, for which leave was granted, before this Court.
To determine whether the trial judge was right to dismiss the respondent’s objection, it is necessary to look once again at the issues relating to the nature of the physician’s duty of professional secrecy in Quebec law and to waivers of the patient’s right to secrecy. First, the requirements for such a waiver must be determined. Then, once the principles have been stated, it will be necessary to review the procedure for raising such a waiver, the burden of proof on the party seeking access to the content of a medical record and the extent of the disclosure. This analysis will be carried out in the specific context of examinations on discovery and proceedings relating to the disclosure of documents conducted in readying a case for trial in Quebec civil procedure.
B. Legislative Framework of the Physician’s Duty of Professional Secrecy
It should be borne in mind that the case at bar falls under the law of civil liability. It is therefore governed by Quebec civil law and civil procedure. Although there is no denying the influence of the common law and, in particular, the complexity of the sources of Quebec’s law of evidence in civil matters, the fact remains that this law is now codified. It is governed by a complex set of legislative rules. Some of these rules are quasi-constitutional in nature by virtue of the Charter of human rights and freedoms, R.S.Q., c. C 12 (“Quebec Charter”). (See on this subject: Foster Wheeler Power Co. v Société intermunicipale de gestion et d’élimination des déchets (SIGED) Inc.,  1 S.C.R. 456, 2004 SCC 18, at paras. 18-27; J. C. Royer, La preuve civile (3rd ed. 2003), at pp. 903-911.)
Using a variety of legal techniques based on rules of practice that established immunities from disclosure, Quebec law has long recognized the fundamental importance of the physician’s duty of professional secrecy in therapy relationships (Royer, at pp. 904-906). Today, s. 9 of the Quebec Charter recognizes that every person has a right to professional secrecy. This right exists in respect of all persons bound to professional secrecy. The Professional Code, R.S.Q., c. C 26, imposes an obligation of professional secrecy on all members of the professional orders it governs (s. 60.4). Physicians are required to belong to an order known as the “Collège des médecins”, to which the Professional Code and the Medical Act, R.S.Q., c. M 9, apply. Section 42 of the Medical Act establishes an immunity from the disclosure of information obtained by a physician in the course of a professional relationship with a patient. The Code of ethics of physicians, R.R.Q. 1981, c. M 9, r. 4.1, recognizes the importance of the confidentiality of this information and imposes on physicians a strict obligation to keep it confidential (s. 20(3)). Thus, as is the case with lawyers, the physician’s duty of professional secrecy includes both an obligation of confidentiality and an immunity from disclosure (Foster Wheeler, at paras. 28‑29). Although there is no need to consider this aspect of the issue any further, it should be borne in mind that Quebec’s legislation includes measures intended to ensure the confidentiality of records kept by hospitals and institutions belonging to the health and social services network (Act respecting health services and social services, R.S.Q., c. S 4.2, s. 19). This Court considered the Quebec legislation in Frenette, but the appeal now before it is limited to the application of the physician’s duty of professional secrecy itself to records kept by physicians regarding their patients.
The Court of Appeal emphasized the importance of the physician’s duty of professional secrecy. It properly noted the importance of the right to privacy implicit in the psychiatrist‑patient relationship. However, as important as professional secrecy may be, it is not absolute. Despite the protection afforded it, particularly under the Quebec Charter and statutes governing professional orders, it has limits. Disclosure of confidential information may be required to protect competing interests. Also, the holder of the right may implicitly or explicitly waive it (Royer, at pp. 954‑59).
C. Waiver of the Patient’s Right to Professional Secrecy
Recognizing express waivers does not give rise to policy problems. The rules regarding professional secrecy are rules of protective public order. The holder of the right may waive it. This Court gave effect to such waivers in respect of hospital records in Frenette. This principle is also valid in relation to the physician’s duty of professional secrecy, which protects the same right to privacy. It is enough if the waiver is voluntary and clear, and if the person waiving the right is aware that the right exists (Royer, at pp. 954-55). If so, it is necessary to consider the scope and limits of the waiver, especially in light of the relevance of the information sought, at the stage of the examination on discovery and the production of documents, in readying a case for trial and, if the case progresses that far, at the trial itself.
However, this appeal raises a problem of implied waiver. Although a waiver cannot be presumed, the courts and the commentators have acknowledged this form of waiver and given effect to it. An implied waiver is inferred from actions of the holder of the right that are inconsistent with an intent to maintain professional secrecy or, rather, to avoid the disclosure of confidential information protected by professional secrecy. The rule in respect of medical malpractice is well established, as Royer observes [at p. 960; translation]:
In the health care sphere, a litigant who raises his or her medical record or state of health as a factor relevant to the case tacitly waives the confidentiality of his or her medical record and the right to professional secrecy ....
The decisions of Quebec’s courts on this subject have been consistent, as can be seen from this Court’s review of them in Frenette (see also: Pilorgé v Desgens,  R.D.J. 341 (C.A.); Goulet v Lussier,  R.J.Q. 2085 (C.A.); Coffey v Tran,  R.D.J. 107 (C.A.)). By bringing an action against her physicians and the manufacturer of the prosthesis in which nearly half the amount she claimed was under the heads of pain and suffering, shock and nervousness, the respondent raised the issue of her state of health, its causes and its consequences. She thus consented to having questions that would obviously be very private in nature discussed in court or at the preliminary stage of readying the case for trial. At any rate, even had her adversaries waived an examination on discovery, she would still have had to establish the basis of their civil liability at trial. She would have had to explain her state of health and the harm she had suffered and would therefore have had to effectively waive secrecy or the right protecting her privacy.
D. Requirement of Relevance
It should be mentioned here that the nature of the interests at stake necessarily brings into play a principle that has a moderating effect on the evidentiary process in civil matters, including at the examination on discovery stage, namely relevance. This principle governs both the examination on discovery and the disclosure of records. Although there was little discussion about this in Frenette because of the circumstances of the case, that decision did not establish a principle that an express or implied waiver would authorize unlimited and uncontrolled access to a patient’s medical record. On the contrary, the limits on secrecy are reflected in the principle of relevance, which applies at all stages of a civil action.
This principle applies to examinations on discovery, whether before or after the filing of the defence. At this stage, relevance is assessed mainly in relation to the allegations set out in the pleadings (Lac d’Amiante du Québec Ltée v 2858-0702 Québec Inc.,  2 S.C.R. 743, 2001 SCC 51, at para. 53; Kruger Inc. v Kruger,  R.D.J. 11 (C.A.)). The examination on discovery facilitates the disclosure of evidence to ensure that trials are conducted fairly and efficiently. It thus enables a litigant to clarify the bases of the claim against him or her, to assess the quality of the evidence and, occasionally, to determine the appropriateness of carrying on with the defence or at least to better define its framework. Used properly, this procedure can help expedite the conduct of the trial and the resolution of the issues before the court (see Royer, at p. 411; Lac d’Amiante, at paras. 59-60). From this perspective, access to relevant evidence is inevitably linked to the defendant’s right to make full answer and defence. If the relevance of the evidence is contested, the judge must settle the issue.
In the context of an examination on discovery or a disclosure of evidence that takes place while a case is being readied for trial, the concept of relevance is interpreted broadly. Being relevant means being useful for the conduct of an action, as Proulx J.A. noted in a case concerning the disclosure of a written document [translation]:
.... the defendant must satisfy the court not that the evidence is relevant in the traditional sense of the word in the context of a trial, but that disclosure of the document will be useful, is appropriate, is likely to contribute to advancing the debate and is based on an acceptable objective that he or she seeks to attain in the case, and that the document to be disclosed is related to the dispute ....
(Westinghouse Canada Inc. v Arkwright Boston Manufacturers Mutual Insurance Co.,  R.J.Q. 2735 (C.A.), at p. 2741).
This legal framework continues to be valid, and this Court did not intend to do away with it or alter it in M. (A.) v Ryan. In that case, which concerned a civil liability issue that arose in British Columbia, the Court established a rule protecting the confidentiality of psychiatric information and a procedure for making and reviewing requests for the disclosure of such information. The judgment thus introduced developments into the common law in an area in which it, unlike in the Quebec law of evidence, recognizes only a few “class” privileges encompassing an entire class of situations (R. v Gruenke,  3 S.C.R. 263, at p. 268; R. v McClure,  1 S.C.R. 445, 2001 SCC 14, at paras. 27 30, per Major J.). The common law instead tends to use “case by case” privileges in accordance with the “Wigmore test”. In Quebec law, as mentioned above, the legislature has spoken. The physician’s duty of professional secrecy and the confidentiality of medical records are recognized. What remains to be determined is in what cases and in what manner the disclosure of protected information will be permitted.
Because of the meaning ascribed to “relevance” by the courts, the test of relevance plays a central role in this area. It requires that the importance of the right to privacy – which is already protected by the Quebec Charter – implicit in the legislative recognition of the physician’s duty of professional secrecy be taken into account. It requires the party seeking access to the information to establish the apparent relevance of the requested information to the exploration of the merits of the case and to the conduct of the defence. A court assessing the impact of disclosure must bear in mind that this issue has arisen in the context of the examination on discovery, a stage at which the parties are under an implied obligation of confidentiality (Lac d’Amiante). Furthermore, the Rules of practice of the Superior Court of Québec in civil matters, R.R.Q. 1981, c. C 25, r. 8, limit the dissemination of this type of information. Rule 3 requires that it be kept in a sealed envelope. Access is limited to the parties and their counsel.
The judge hearing the case must take care to ensure that documents disclosed and questions asked during examinations on discovery are within the limits of what is relevant, that is, of what is useful for the case. This supervisory function is especially important and must be discharged very carefully when there are objections relating to the right to privacy. If need be, the judge sets the conditions for access to and dissemination of the information when ruling on the confidentiality of the information and the disclosure thereof (Québec (Procureur général) v Dorion,  R.D.J. 88 (C.A.); Champagne v Scotia McLeod Inc.,  R.D.J. 247 (C.A.); D. Ferland and B. Emery, Précis de procédure civile du Québec (4th ed. 2003), t. 1, at pp. 570‑72).
E. Controlling Disclosure in Practice
In the case at bar, the physician’s duty of professional secrecy was applicable. The record kept by Dr. Gawlik was confidential. However, the appellants had demonstrated the relevance of the requested information and the existence of an implied waiver of the record’s confidentiality. This resulted from, inter alia, the nature of the allegations in the action against the appellants and the answers given by the respondent at the examination on discovery. The requested information was apparently useful for, that is, relevant to, evaluating the civil liability alleged by the respondent and the damages she was claiming. It should also be noted that the request for disclosure concerned consultations subsequent to the accident and the treatment undergone by Ms. Glegg that were related to the problems that appeared to be the subject of the claim. It did not amount to a request for an uncontrolled and unlimited investigation into Ms. Glegg’s entire medical history. The judge could therefore have ordered at this stage that the record be disclosed to counsel for the appellants. Disclosure of the record would also have allowed the judge to rule subsequently on specific objections to the disclosure or use of specific items in the record.
In practice, since the apparent usefulness of the evidence had been demonstrated, the onus was on the respondent to explain her objection and show why the requested documents should not be produced. She therefore had to ensure that the judge was in a position to understand the objection, determine how it should be debated before him and rule on it on an informed basis.
The Code of Civil Procedure does not provide for every detail of the procedure that would apply in every situation. In fact, the Code itself recognizes that it is impossible to provide for everything. Article 46 C.C.P. states that “[t]he courts and judges have all the powers necessary for the exercise of their jurisdiction”. Article 395 C.C.P. adds that judges have the power to decide on disputes that arise in the course of examinations on discovery. These provisions permit judges to deal with the inevitable situations in which the Code or the court’s rules of practice are silent.
In this context, the judge retains the power to take any action that would both preclude a premature or unnecessary disclosure of confidential information and ensure that he or she can obtain sufficient information on the nature of the dispute and can guide the proceedings on the issue. Judges have many options in such situations (see Foster Wheeler, at paras. 44-47, and Lac d’Amiante, at paras. 35-39). A party making an objection can be required to file an affidavit explaining the basis for the objection, and listing and describing the documents in issue. Another option would be to review the evidence in private, in the parties’ absence. It would also be possible, as has already been mentioned, for the judge to order that the documents be disclosed, subject to the obligations of confidentiality that would apply at this stage of the proceedings. The judge could also order counsel not to disclose the documents to third parties or to the parties themselves. None of these actions were taken here, owing to the way in which the respondent conducted the proceeding into her objection.
In a situation such as this, the Court of Appeal could not at this stage of the proceedings have imposed a heavier burden on the appellants, who had already demonstrated the apparent relevance of the requested information. The court’s decision does not explain what evidence the appellants should or could have adduced or what they should or could have demonstrated to obtain the disclosure of Dr. Gawlik’s record. The decision also overlooks the fact that the respondent had, as mentioned above, refused to comply with Baker J.’s order to produce Dr. Gawlik’s notes. In the circumstances, Baker J.’s decision should have been upheld and the respondent’s objection dismissed. I need not discuss how the examination and the disclosure of evidence will be conducted in the future or elaborate on specific objections whose nature is unknown to me. If such objections are made in the future, they will have to be considered by judges of the Superior Court in exercising the powers explicitly or implicitly conferred on them in Quebec civil procedure.
For these reasons, the appeal is allowed and the judgment of the Quebec Court of Appeal is set aside. The judgment of the Superior Court of Quebec dismissing the respondent’s objection is restored. The appellants will have their costs.
Frenette v Metropolitan Life Insurance Co.,  1 S.C.R. 647; Lac d’Amiante du Québec Ltée v 2858-0702 Québec Inc.,  2 S.C.R. 743, 2001 SCC 51; M. (A.) v Ryan,  1 S.C.R. 157; Foster Wheeler Power Co. v Société intermunicipale de gestion et d’élimination des déchets (SIGED) inc.,  1 S.C.R. 456, 2004 SCC 18; Pilorgé v Desgens,  R.D.J. 341; Goulet v Lussier,  R.J.Q. 2085; Coffey v Tran,  R.D.J. 107; Kruger Inc. v Kruger,  R.D.J. 11; Westinghouse Canada Inc. v Arkwright Boston Manufacturers Mutual Insurance Co.,  R.J.Q. 2735; R. v McClure,  1 S.C.R. 445, 2001 SCC 14; R. v Gruenke,  3 S.C.R. 263; Québec (P.G.) v Dorion,  R.D.J. 88; Champagne v Scotia McLeod Inc.,  R.D.J. 247.
Act respecting health services and social services, R.S.Q., c. S4.2, s. 19.
Charter of human rights and freedoms, R.S.Q., c. C12, s. 9.
Code of Civil Procedure, R.S.Q., c. C25, ss. 46, 395, 397, 402.
Code of ethics of physicians, R.R.Q. 1981, c. M9, r. 4.1, s. 20(3).
Medical Act, R.S.Q., c. M9, s. 42.
Professional Code, R.S.Q., c. C26, s. 60.4.
Rules of practice of the Superior Court of Quebec, R.R.Q. 1981, c. C25, r. 8, s. 3.
Authors and other references
Ferland, Denis, et Benoît Émery. Précis de procédure civile du Québec, vol. 1, 4 éd. Cowansville, Qué.:Yvon Blais, 2003.
Royer, Jean Claude. La preuve civile, 3e éd. Cowansville, Qué.:Yvon Blais, 2003.
Odette Jobin Laberge, for the appellant Smith & Nephew Inc. (instructed by Lavery, de Billy, Montréal).
Dominic Desjarlais, for the respondent (instructed by Lamarre Linteau & Montcalm, Montréal).
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