Craig Barton v. Loft Community Centre and Linda Sallay, 2009 HRTO 289

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Craig Barton

Applicant

-and-

Loft Community Centre and Linda Sallay

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: March 13, 2009

Citation: 2009 HRTO 289

Indexed as: Barton v. Loft Community Centre

1This is an Application dated July 11, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint was filed with the Ontario Human Rights Commission on June 5, 2008.

2The purpose of this Interim Decision is to address a Request for an Order During Proceeding filed by the respondents for production of documents containing “personal health information” about the applicant within the meaning of the Personal Health Information and Privacy Act, S.O. 2004, c.3, Sched. A (“PHIPA”). The parties were given the opportunity to file written submissions in relation to this issue.

3Loft Community Centre (“Loft”) is one of four agencies that provides housing under the Mental Health and Justice Initiative, a partnership program with the Ministry of Health and Long Term Care. The target population for housing under this program are individuals who satisfy all of the following four criteria:

• Suffer from a serious mental illness

• Have current involvement with the criminal justice system

• Are homeless or potentially homeless, and

• Are likely to live safely supported in the community with minimal assistance.

4The applicant applied for housing at Loft and as part of the application process completed consent forms authorizing various health professionals to disclose personal health information to Loft. This information was received by Loft and, according to the respondents, formed the basis upon which the applicant’s housing application was denied. As a result, the respondents state that their ability to disclose this information is vital to their defence before this Tribunal.

5Under s. 49 of PHIPA, a recipient of personal health information is not permitted to use or disclose personal health information except for the purpose for which it was disclosed or for the purpose of carrying out a statutory or legal duty. Section 9(2)(d) of PHIPA provides that nothing in the Act shall be construed to interfere with “the power of a court or tribunal . . . to compel the production of a document.” As a consequence of these provisions, the respondents take the position that they are not entitled to disclose the documents containing the applicant’s personal health information upon which they say they relied in order to deny the applicant’s housing application without an order from this Tribunal.

6The applicant resists disclosure of this material on the basis that it is unreasonable due to the involvement of the Ombudsman Ontario in an alleged investigation into Commission corruption. This is not a proper basis upon which to deny the respondents’ request.

7I am satisfied that the material that the respondents request that they be ordered to disclose is both relevant and necessary to permit them to put forward their defence to the allegations raised by the applicant. On this basis I order that this material be produced to the applicant and filed with the Tribunal.

8However, in making this decision, I am mindful of the provisions of s. 49(2) of PHIPA, which state that a recipient of personal health information

shall not use or disclose more of the information than is reasonably necessary to meet the purpose of the use or disclosure, as the case may be, unless the use or disclosure is required by law.

While this provision would appear to authorize me to order production of the material in Loft’s possession even if it were not “reasonably necessary” for their defence, it is my view that a more cautious approach would be better suited to the underlying purposes of PHIPA. Accordingly, while I am ordering that the material in the possession of Loft containing the applicant’s personal health information be produced to the applicant in its entirety, the respondents shall only file with the Tribunal those specific portions of this material upon which the respondents state that they actually relied in denying the applicant’s housing application. In particular, the respondents indicate that they have possession of the applicant’s entire psychiatric file from the Kingston site of the Regional Treatment Centre of Ontario, Correctional Services of Canada, which includes various psychiatric reports and psychiatric progress notes. This file and any other material containing the applicant’s personal health information should only be filed with the Tribunal to the extent that the respondents actually reviewed and relied upon it in making their decision. If the applicant wishes to rely upon any further or additional information from the documents fully disclosed to him, he is free to do so.

9For these reasons, I make the following order:

1. by no later than March 20, 2009, the respondents shall produce to the applicant all arguably relevant documents in their possession or control pertaining to his application for housing at Loft, including but not limited to the material containing personal health information as listed at paragraph 3 of their submissions dated January 14, 2009 and filed with the Tribunal;

2. by no later than March 27, 2009, the respondents shall file with the Tribunal a copy of all documents upon which they intend to rely at the hearing, including those portions of the material containing the applicant’s personal health information upon which they say they actually relied in denying his housing application, and so advise the applicant in accordance with the Rules; and

3. by no later than April 3, 2009, the applicant shall file with the Tribunal any further portions of the material containing his personal health information disclosed to him by the respondents upon which he intends to rely at the hearing, and so advise the respondents.