HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Spencer Higgins

Applicant

-and-

Humber River Regional Hospital and Elizabeth Werry

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: June 6, 2011

Citation: 2011 HRTO 1074

Indexed as: Higgins v. Humber River Regional Hospital

1The applicant filed this Application on September 17, 2010, alleging discrimination in the provision of services on the basis of race, colour, ancestry, place of origin, citizenship and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). No response has been filed by either respondent.

2This Interim Decision deals with three preliminary matters: (1) a request to amend the Application; (2) a request by the individual respondent for an order allowing her to access and rely on hospital records in filing her Response; and (3) the failure of the organizational respondent to file a Response.

Request to Amend Application

3The applicant seeks to amend his Application by removing references to other litigation. Both respondents consent to what appear to be minor amendments to the wording. Moreover, neither respondent has filed their Response to this Application. Accordingly, the applicant’s request to amend is granted. The proposed wording found in Schedule A to the applicant’s May 5, 2011 Request for Order During Proceeding (Form 10) is substituted as the applicant’s answer in response to question 8 in her Application.

Request for Disclosure of Records

4The Application alleges that the individual respondent, Dr. Weary, treated the applicant on three separate occasions, although he only asserts that there was differential treatment with respect to his interaction with Dr. Weary on the last occasion.

5Dr. Weary has submitted a Request for Order during Proceedings, (Form 10), asking the organizational respondent to produce the hospital records concerning her treatment of the applicant. She also seeks an order to allow her to “use or disclose the Applicant’s personal health information in her Response … to the extent that information relates to or is a matter in issue in the Application”.

6In her request, Dr. Weary submits that she is prevented from disclosing any personal health information under s. 41 of the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Schedule A (“PHIPA”), unless this Tribunal issues an order permitting her to disclose this information.

7Under s. 41(1)(d) of PHIPA, disclosure of personal health information is permitted 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.

8This Tribunal has determined that it has the authority to compel the production of information under this statutory provision: see, for example, Basic v. Royal Health Care Centre, 2009 HRTO 1834 and Graham v. Children’s Hospital of Eastern Ontario, 2010 HRTO 2525.

9The organizational respondent takes no position on this request, but the applicant has expressed his opposition to it on the basis that his allegation concerns a remark that was not made in the context of a doctor/patient consultation. He has not provided his consent to the production or disclosure of this information.

10In addition to the allegation concerning a remark made in the hallway, the Application also refers to Dr. Weary refusing to provide the applicant with painkillers and advising him to see his treating psychiatrist. If, as stated by the applicant, this interaction took place it could be referred to in the medical records, which Dr. Weary seeks. Moreover, there may be observations recorded in these notes that might be relevant to this proceeding (and, if not, then disclosure of them does not become an issue).

11Under the Tribunal’s process, the parties’ obligation to disclose arguably relevant documents does not arise until 21 days after a Notice of Confirmation of Hearing is issued. Absent special circumstances, the Tribunal will generally not make production orders in the early stages of the process. However, the special circumstances in this case warrant making an order for production and disclosure at an early stage to ensure the fair, just and expeditious resolution of this Application.

12The organizational respondent is required to produce the hospital records pertaining to Dr. Weary’s treatment of the applicant within two weeks of the date of this Interim Decision. Dr. Weary will have an additional two weeks from the date of receipt of those hospital records to file her Response to the Application. Dr. Weary may use or disclose in her Response only that portion of the applicant’s personal health information that relates or is a matter in issue in this Application.

13The applicant will then have an opportunity to file a Reply in accordance with the Rules.

Failure to File a Response

14The organizational respondent requested an extension to file its Response, which was granted by the Tribunal. However, the organizational respondent has not filed a Response and the extended deadline of April 21, 2011 has long since passed. Rule 8 of the Tribunal’s Rules of Procedure provides, in part, as follows:

8.1 To respond to an Application under sections 34(1) or 34(5) of the Code, a Respondent must file a complete Response in Form 2 not later than (thirty-five) 35 days after a copy of the Application was sent to the Respondent by the Tribunal.

a) A complete Response must provide the information requested in each section of the Form 2, respond to each allegation set out in the Application and must also include any additional facts and allegations on which the Respondent relies. …

15An 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 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.

16If the organizational respondent wishes to participate in this proceeding, it shall file a complete Response (Form 2) within 7 days of the date of this Interim Decision. If a Response is not received, the Tribunal may take any or all of the steps set out in Rule 5.5.

Orders

17In sum, I have made the following orders:

a. The applicant’s request to amend the Application is granted as set out above;

b. The organizational respondent shall produce to Dr. Weary all hospital records pertaining to her care and treatment of the applicant within two weeks of the date of this Interim Decision;

c. Dr. Weary shall file her Response to the Application within two weeks from the date of receipt of those hospital records;

d. Dr. Weary may use or disclose in her Response only that portion of the applicant’s personal health information that relates or is a matter in issue in this Application;

e. The organizational respondent shall file a completed Response within seven days of the receipt of this Interim Decision; and

f. The applicant may then file his Replies to the Responses from Dr. Weary and the organizational respondent in accordance with the Rules.

18I am not seized of this matter.

Dated at Toronto this 6th day of June, 2011.

“Signed by”

Naomi Overend

Vice-chair

ERRATUM AND ADDENDUM

It has come to the Tribunal’s attention that the date of the Interim Decision was incorrectly dated as June 6, 2010 rather than June 6, 2011. The date has been amended accordingly.

In this Interim Decision, I noted that the organizational respondent did not file a Response, despite asking for and being granted an extension to April 21, 2011. Upon receiving this, the organizational respondent resent an email to the Tribunal that it had sent to the Registrar on April 21, 2011 enclosing the Response. Through inadvertence, this Response was not placed in the Tribunal’s file at the time this Interim Decision was issued. The order requiring the organizational respondent to file the Response found in the above Interim Decision is clearly moot.