Zohreh Soheil-Fakhaei v. Canadian Business College, 2010 HRTO 2507

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zohreh Soheil-Fakhaei

Applicant

-and-

Canadian Business College – Faculty of Dental Hygiene, Paul Sharma, Helen Wolda, Sangeeta Patodia and Pooja Sarda

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: December 16, 2010

Citation: 2010 HRTO 2507

Indexed as: Soheil-Fakhaei v. Canadian Business College

1This Interim Decision is issued further to my previous Interim Decision dated December 13, 2010, 2010 HRTO 2466, in order to address certain issues raised by various respondents to this proceeding.

2The respondent College has raised a concern that my order requiring production of dental records maintained for certain identified patients by the dental clinic operated by the College may be in violation of the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Schedule A (“PHIPA”).

3There is no question that dental records for patients maintained by the clinic constitute “personal health information” within the meaning of PHIPA, and that generally speaking such records cannot be used or disclosed without consent. In this regard, s.29 of PHIPA provides as follows:

29. A health information custodian shall not collect, use or disclose personal health information about an individual unless,

(a) it has the individual’s consent under this Act and the collection, use or disclosure, as the case may be, to the best of the custodian’s knowledge, is necessary for a lawful purpose; or

(b) the collection, use or disclosure, as the case may be, is permitted or required by this Act.

4While consent is generally required pursuant to s. 29(a) of PHIPA, s. 29(b) also authorizes disclosure where “permitted or required by this Act”. In this regard, pursuant to s. 41(1)(d) of PHIPA, disclosure of personal health information is permitted under that Act for the purpose of complying with an order to compel production or with a procedural rule that relates to production of information in a proceeding. Section 41(1)(d) of PHIPA provides as follows:

41(1) A health information custodian may disclose personal health information about an individual,

(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, or

(ii) a procedural rule that relates to the production of information in a proceeding.

5In this case, as a Vice-chair of this Tribunal with authority to do so, I have issued an order requiring production of the dental records relating to the individuals identified in my previous Decision. As a result, disclosure of these records is authorized and permitted under ss.29(b) and 41(1)(d)(i) of PHIPA without any requirement to first obtain the consent of the patients. Accordingly, the respondent College shall comply with my order immediately.

6The respondent College also has taken issue with my determination that the investigation by the Ministry of Training, Colleges and Universities (“MTCU”) is not a proceeding that appropriately dealt with the substance of the Application. Under the Tribunal’s Rules, reconsideration of a Tribunal decision is only available where the decision is a “final” decision, which has been interpreted to mean a decision that finally disposes of the proceeding as between the parties at issue. My previous Decision, while it determined an issue raised by the respondent College, did not finally dispose of this proceeding, which is scheduled for hearing on January 28, 2010. Accordingly, my previous Decision is not a “final” decision which is amenable to reconsideration under the Tribunal’s Rules.

7While, apart from the reconsideration process, this Tribunal also has inherent jurisdiction to re-visit interim orders or decisions, I see no reason to do so in this case based upon the information submitted by the respondent College, which was already known to me and considered in my previous Decision.

8The respondent Ms. Wolda has indicated that my previous Decision did not address her request by email dated November 5, 2010 for an order requiring the applicant to produce all the pages from her clinical student journal relating to all of the applicant's patients whom Ms. Wolda supervised in the clinic. If the applicant is in possession of a clinical student journal relating to patients attended by her at the clinic operated by the respondent College, then any such document is clearly relevant to the matters at issue in this proceeding and must be produced by the applicant. For the sake of clarity, I am requiring production of the applicant’s entire clinical student journal relating to the period when she attended at the respondent College, whether it relates to patients supervised by Ms. Wolda or to patients supervised by some other person. Any such document or documents shall be produced by the applicant to all respondents and filed with the Tribunal within 7 calendar days of the date of this Decision.

9The respondent Mr. Sharma has written to the Tribunal to express concern as to whether any determination on the substance of the Application has been made as a result of my previous Decision. My previous Interim Decision was just a decision on preliminary issues raised by some of the parties, and no decision has been made on the substance or merits of the applicant’s allegations. My review of the nature of the applicant’s allegations at the commencement of the Decision was intended to try to bring clarity and focus to the applicant’s allegations, and is in no way any determination as to whether these allegations have been proven by her. That will be the subject of the January 28, 2011 hearing.

10Finally, the respondent College has raised an issue regarding the applicant’s failure to raise allegations of sexual harassment or solicitation in her complaint to the MTCU. That is a matter that may go to the credibility of these allegations, and may be raised by the respondent College at the hearing.

11The Tribunal recently has received e-mail correspondence from the respondent College directed to Lang Ngo, an Adjudicative Support Assistant at the Tribunal. As required by the Tribunal’s Rules, all correspondence from the parties to the Tribunal are to be sent to the Registrar-Transition and not to other Tribunal staff. For ease of reference, the Registrar-Transition’s e-mail address is hrto.registrar-transition@ontario.ca.