Zvonimir Basic v. Royal Health Care Centre and Andy Gidwani, 2009 HRTO 1834

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zvonimir Basic

Applicant

-and-

Royal Health Care Centre and Andy Gidwani

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: October 30, 2009

Citation: 2009 HRTO 1834

Indexed as: Basic v. Royal Health Care Centre

1This is an Application filed on August 31, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The Application alleges the respondent physician terminated the physician/patient relationship due to the applicant’s disability and sexual orientation contrary to the Code. By Interim Decision dated September 3, 2009, 2009 HRTO 1400, the Tribunal denied the applicant’s Request to Expedite, stating that “the Tribunal’s remedial powers do not extend to ordering that medications be prescribed for the applicant”. By Interim Decision dated October 21, 2009, 2009 HRTO 1734, the Tribunal denied the applicant’s further Request to Expedite on the same basis.

2The applicant filed a third request on October 26, 2009, this time in the form of a Request for an Order During Proceedings, asking again for an “emergency hearing” and an order for the respondent to provide him with medication.

3The Tribunal does not require a Response to the applicant’s Request for Order from the respondents.

4For the reasons given in the October 21, 2009 Interim Decision, there is no basis for ordering an emergency hearing. The applicant’s Request for Order is denied.

5On October 28, 2009, just prior to the issuance of a decision on this latest Request, the applicant sent email correspondence to the Tribunal, stating:

Please be advised effective immediately I am Withdrawing my Form 10 in Regards to asking for an Emergency Hearing, as of 09:45 this Morning this writer got a Medical RX from a Medical Doctor Re filling ALL of This Writers 3 Medications, So accordingly an Emergency Hearing is NO LONGER REQUIED [sic]!

6The Tribunal has decided to dismiss the Request for Order rather than permitting its withdrawal. This is the third time that the Tribunal has denied the applicant’s request for the same relief. The Tribunal has responded to each of these Requests quickly and on its merits. As they were alleged to constitute “emergencies”, the Tribunal has devoted staff and adjudicative resources to them in priority to other matters before the Tribunal. In the circumstances, the Tribunal will not accept any further Requests seeking an emergency hearing for the purpose of obtaining an order to provide the applicant with medication.

RESPONDENT’S REQUEST FOR ORDER

7The individual respondent filed a Request for Order on October 5, 2009 seeking an order permitting him to disclose the applicant’s personal health information for the purpose of this proceeding, and an extension of time to file a Response pending such an order.

8The individual respondent states that the provisions of the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A (PHIPA) prevent him from disclosing the applicant’s personal health information without his express consent. The individual respondent has sought consent from the applicant and has not received it. The individual respondent states that he cannot respond to the allegations being made against him until he is permitted to disclose the applicant’s personal health information. His ability to fully defend against the allegations made against him requires that he be permitted to disclose the applicant’s personal health information.

9The time for responding to the Request has passed and the applicant has not responded.

10It is not apparent to the Tribunal that the applicant’s express consent is required in order to enable the individual respondent to use or disclose the applicant’s health information for the purpose of responding to this Application. The provisions of the PHIPA state that a “health information custodian” may use or disclose personal health information about an individual.

(….) for the purpose of a proceeding or contemplated proceeding in which the custodian or the agent or former agent of the custodian is, or is expected to be, a party or witness, if the information relates to or is a matter in issue in the proceeding or contemplated proceeding.

These provisions seem to be broad enough to enable the use and disclosure sought by the individual respondent. In any event, if there is any uncertainty about the matter, the Tribunal directs that the individual respondent may use or disclose the applicant’s personal health information for the purpose of this Application, to the extent that information relates to or is a matter in issue in the Application.

11The time for filing a Response is extended to November 13, 2009.

ORGANIZATIONAL RESPONDENT

12The organizational respondent has not responded to this Application or contacted the Tribunal. An application to the Tribunal starts a legal proceeding. A finding that a violation of the Code has occurred may lead to various orders, including monetary compensation, other forms of restitution to the applicant, and orders to take action to promote compliance with the Code. Failure to file a response or participate in a Tribunal proceeding may lead to orders against individual and corporate respondents without their participation. The organizational respondent’s attention is drawn to Rule 5.5 of the Tribunal’s Rules of Procedure which reads as follows:

5.5 Where an Application is delivered to a Respondent who does not respond to the Application, the Tribunal may:

a) deem the Respondent to have accepted all of the allegations in the Application;

b) proceed to deal with the Application without further notice to the Respondent;

c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding;

d) decide the matter based only on the material before the Tribunal.

13The applicant provided an address for the organizational respondent which is the same as, and “care of”, the individual respondent. The Tribunal shall send a copy of this Interim Decision to the organizational respondent by the same method. If the individual respondent has the name and address of a more appropriate contact person for the organizational respondent, he is directed to provide the Tribunal with this contact information, by November 6, 2009.

14I am not seized of this matter.