Renouf v. Georgian Bay General Hospital, 2012 HRTO 1070

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Debby Renouf

Applicant

-and-

Georgian Bay General Hospital

Respondent

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: May 30, 2012

Citation: 2012 HRTO 1070

Indexed as: Renouf v. Georgian Bay General Hospital

WRITTEN SUBMISSIONS

Debby Renouf, Applicant ) Self-Represented

Georgian Bay General Hospital, ) Andrew N. Zabrovsky, Counsel

Respondent )

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability.

2A Response was due to be filed on May 16, 2012. On May 9, 2012, the Tribunal received a request to extend the deadline to file the Response as well as a Form 10, seeking an order providing access to the applicant’s occupational health records. The request to extend the deadline to file a Response was granted by the Tribunal and a new deadline of June 13, 2012 was set.

3No Form 11 was filed by the applicant before her deadline elapsed. However, the Tribunal received a Form 11 on May 30, 2012 from the applicant, in which she argues that only the functional abilities assessment and Dr. Andersen’s notes are relevant to these proceedings and, therefore, only those materials should be accessed and reviewed. It is not clear from the Form 11 whether she has signed and returned the consent form, or an amended version of it, sent to her by the respondent employer on May 3, 2012.

4The respondent argues that all information related to the applicant’s medical restrictions and accommodation provided by the respondent are contained in the Occupational Health file and it is necessary for the respondent to have access to and review these materials with the Occupational Health doctor, Joel Andersen, or his designate, in order to put forward a complete and meaningful defence.

5The respondent points out that, although the applicant’s consent to access parts of her file relating to the period June 21, 2010 to the present was sought by way of a letter dated May 3, 2012, the applicant has thus far refused to provide the respondent with access to her Occupational Health file.

6The respondent submits that it is unable to file its Response until it has had the opportunity to access the Occupational Health file, currently in the custody of Dr. Joel Andersen, and review it with its advisors and instructors, as well as with Dr. Joel Andersen or his designate. The respondent asks the Tribunal to order the applicant to provide consent or, alternatively, to order the Occupational Health doctor to provide access, use, and/or disclosure of the applicant’s Occupational Health file for the purposes of responding to the Application and to answer any questions relating to that material.

7I note that some Tribunal jurisprudence has allowed health information custodians to use or disclose personal health information for the purpose of preparing a Response to an Application (see Basic v. Royal Health Care Centre, 2009 HRTO 1834 and Hunter v. North Halton Mental Health Clinic, 2010 HRTO 750.

8In the Hunter decision, the Tribunal noted that its decision was based on section 41 of PHIPA, which states:

(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, …

9The Hunter decision went on to state that:

PHIPA defines health information custodians to include a health care practitioner (see section 3.(1) 1)

10In the present Application, the material sought, specifically, the information in the Occupational Health file in the custody of Dr. Joel Andersen, a “health information custodian” under PHIPA, for the period June 21, 2010 to the present concerns “information that relates to or is a matter in issue” in these proceedings.

11In the circumstances, and assuming that the applicant has not provided her consent in the intervening period, I order the health information custodian, Dr. Andersen, or his designate, to immediately release the contents of the applicant’s Occupation Health file for the period June 21, 2010 to the present to the respondent and its counsel, to answer any questions and testify if required about the contents of the Occupational Health file for the same period.

12The deadline by which a Response is required is further extended and the respondent employer will have 35 days from the date of this Interim Decision to file its Response.

13I am not seized.