Zvonimir Basic v. Sherbourne Health Centre and Naveed Nawab, 2009 HRTO 1904

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zvonimir Basic

Applicant

-and-

Sherbourne Health Centre and Naveed Nawab

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: November 9, 2009

Citation: 2009 HRTO 1904

Indexed as: Basic v. Sherbourne Health Center

1This Interim Decision deals with two Requests for Order to amend this Application and to permit the respondent, Dr. Nawab, to disclose personal health information of the applicant for the purpose of this proceeding.

2The applicant filed his Application on May 11, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) alleging that the respondents discriminated against him in the provision of services on the basis of disability. The respondents filed their respective Responses asking for early dismissal of this Application because the applicant had filed a civil claim based on the same facts, which requested a remedy on the alleged human rights violation.

3In response, the applicant negotiated with the respective respondents and his civil action was dismissed without costs by Order of the Registrar, dated September 23, 2009.

4The applicant now seeks to increase his financial remedy from $50,000 to $550,000 to reflect the fact that he is no longer bringing the civil action in which he sought $500,000 from the defendants/respondents. He has brought a Request for Order During Proceedings (Form 10) asking that the Tribunal grant him leave to amend his Application (“request to amend”).

5In addition, the respondents must now file full Responses setting out their position with respect to the allegations in this Application. Both respondents advise that they are unable to do this until they are able to disclose the applicant’s personal health information.

6Dr. Nawab takes the position that, under the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, as amended (“PHIPA”), he is precluded from this disclosure without either a signed consent from the applicant or an order under s. 41 of the PHIPA. He initially sought the applicant’s consent, but when that was not forthcoming, brought a Request for Order During Proceedings (Form 10) for an order permitting disclosure and an extension of time to file a Response pending such an order.

REQUEST TO AMEND

7Given the early stage at which the request to amend is being made, this request is granted. The Application is amended to reflect the fact that the applicant is seeking a total financial remedy of $550,000. The Tribunal’s decision to permit the amendment should not be taken as any assessment as to the merits of this remedial claim.

REQUEST TO PERMIT DISCLOSURE

8Dr. Nawab states that the provisions of PHIPA prevent him from disclosing the applicant’s personal health information without the express consent of the applicant or an order of the Tribunal. The relevant portions of section 41 of PHIPA state:

(1) A health information custodian may disclose personal health information about an individual,

(a) subject to the requirements and restrictions, if any, that are prescribed, for the purpose of a proceeding or contemplate proceeding in which 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.

(d) for the purpose of complying with,

(i) a summons, order or similar requirement issued in a proceeding by a person having jurisdiction to compel the production of information, ….

It is not apparent to the Tribunal that the applicant’s express consent or an order is required for the respondents to use or disclose the applicant’s health information for the purpose of responding to this Application. The provisions of the PHIPA seem to be broad enough to enable the use and disclosure sought by Dr. Nawab as he is a named party in a proceeding. This would be equally true of the organization respondent.

9In any event, to address any uncertainty about the matter, the Tribunal directs that the respondents 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. Moreover, the time for filing their respective Responses is extended to two weeks from the date of this Interim Decision.

10I am not seized of this matter.