HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Theresa Dewdney
Applicant
-and-
Toronto Transit Commission and Diane Chyn
Respondents
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Dewdney v. Toronto Transit Commission
WRITTEN SUBMISSIONS
Therese Dewdney, Applicant
Farah Malik, Counsel
Toronto Transit Commission and Diane Chyn, Respondents
Lucy Siraco, Counsel
INTRODUCTION
1The applicant filed this Application on May 28, 2012, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability and reprisal.
2The applicant was injured in a motor vehicle accident on her way to work on September 26, 2006. The applicant alleges that the respondents failed to properly accommodate her disability and terminated her employment while she was on medical leave.
3On August 24, 2012, the respondents filed a Request for Order during Proceedings (“Request”) seeking an extension of time to file their Response in order to obtain certain health information of the applicant. The information sought by the respondents is held by the Occupational Health and Claims Management (“OHCM”) unit within the organizational respondent’s human resources department. The respondents wish to access, use and disclose the organizational respondent’s OHCM files in relation to the applicant and her accident from September 26, 2006 and onwards. The respondents submit that access and disclosure of the documentation is necessary in order to respond to the allegations made in the Application.
4The applicant filed response submissions to the Request on September 7, 2012. The applicant does not oppose the respondents’ access to her health information as contained in her OHCM files in relation to the September 2006 accident and the issues raised in the Application for the purposes of preparing their Response. However, the applicant objects to the disclosure of the health information to unidentified potential witnesses and submits that only legal advisors and individuals instructing counsel should be allowed to access the health information. In turn, the applicant requests that she also be provided with a copy of any disclosure obtained by the respondents for the purposes of preparing her Reply.
5The parties subsequently exchanged additional written submissions setting out their arguments on the various issues, in particular their respective positions regarding whether or not disclosure of the health information to non-parties is permissible.
Summary of Respondents’ Position
6The respondents ask the Tribunal to allow for access, use and disclosure of the applicant’s health information in order to facilitate filing their Response and defending against the Application. The respondents also seek permission to review the health information with potential witnesses, such as the organizational respondent’s OHCM employees, Sun Life (as the benefits plan administrator) and its employees, medical personnel and experts. Specifically, the respondents request that the Tribunal:
grant an extension of the deadline to file their Response until 35 days from the date the Tribunal issues its order with respect to this Request;
authorize the respondent to access, use, disclose and/or refer to the applicant’s health information contained in the organizational respondent’s OHCM files pertaining to the applicant’s involvement in the September 2006 accident to the extent that this information relates to or is in issue in the Application and for the purpose of responding to the Application; and
permit the respondents to review, disclose and/or refer to the applicant’s health information in the OHCM files pertaining to the applicant’s involvement in the September 2006 accident with individuals who are expected to be witnesses in respect of such documents, and/or whose employment duties include providing instructions for responding to the Application.
7The respondents submit that the applicant has put her disability, medical conditions, restriction and accommodation into issue and that they are unable to file their Response until they have had the opportunity to access and review the information in the OHCM files with their advisers and individuals who are potential witnesses in this proceeding.
8The respondents point out that the expectations and protections regarding disclosure under the Personal Health Information Protection Act, 2004, S.O 2004, c. 3, Sched. A (“PHIPA”) for health information custodians may be different from the duty imposed on employers by the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”). While the former permits health information custodians to use and disclose such information for the purposes of a proceeding (sections 37(1) and 41(1) of PHIPA), the latter allows for access to medical records only with the employee’s consent or an order of a court or tribunal or in order to comply with another statute (section 63(2) of OHSA).
Summary of Applicant’s Position
9Although the applicant agrees to allow the respondents to have access and use of her health information as contained in the OHCM files relating to the issues in dispute in the Application, she opposes disclosure of her health information to unidentified potential witnesses and argues that disclosure should be restricted to the respondents, their legal advisors and individuals providing instruction to counsel.
10The applicant submits that, under section 41(1) of the PHIPA, disclosure is limited to when a health information custodian or its agent are or are expected to be parties or witnesses in a proceeding; for the purposes of a proceeding involving a proposed or actual litigation guardian/legal representative; and for the purposes of complying with a summons, order or procedural rule. The applicant submits that section 41(1) limits disclosure of “personal health information” to only these groups and in these circumstances and, therefore, the Tribunal should not permit disclosure to non-parties.
11In addition, the applicant submits that, as a matter of fairness, the respondents should be required to provide her with a copy of the health information as soon as the respondents obtain the documents from the organizational respondent’s OHCM unit. Lastly, the applicant argues that since the respondents filed a response in the applicant’s duty of fair representation matter before the Ontario Labour Relations Board (“OLRB”), the respondents are able to file a Response in this proceeding and, therefore, should not be granted the full extension of time as requested.
DECISION
12The Tribunal must first determine whether the applicant’s health information comes under the protection of any statutory scheme and, if so, what legal basis is there to allow for access and disclosure of the sought after information. If access and disclosure of the applicant’s health information is permissible, the Tribunal must next consider what is the appropriate scope of disclosure, to whom can the health information be disclosed and whether any restrictions should be applied.
What information is the subject of this Request?
13The respondents seek to access the applicant’s health information as contained in the organizational respondent’s OHCM unit files. The respondents describe the OHCM unit as a section of the organizational respondent’s human resources department. The respondents explain that the OHCM staff manage employees’ sick benefits and review medical information from, and communicate with, employees’ physicians and specialists to assist with arranging return to work and accommodation of employees.
14The respondents anticipate that the contents of the applicant’s OHCM files include materials obtained from Sun Life regarding its administration of the applicant’s sick benefits; medical information, such as reports, evaluations and assessments; and documents relating to the accommodation process and the applicant’s restrictions.
15The respondents indicate that the contents of the OHCM files are kept separate from other human resources department files and, when necessary, are handled in accordance with the PHIPA. The respondents submit that their request regarding the applicant’s health information may be governed by the OHSA and/or the PHIPA with each statute providing varying conditions for lawful access and disclosure of health information.
What does the PHIPA prescribe regarding access/disclosure?
16The PHIPA establishes a regime for the collection, use and disclosure of personal health information by “health information custodians” and provides for the right of individuals to access their health records.
17Section 3 of the PHIPA lists various persons and entities that control or possess personal health information as part of performing their duties as “health information custodians” and, generally, those individuals and entities are health practitioners or organizations involved in the delivery of health care services, such as a hospital, long-term care facility, pharmacy, etc.
18Section 4 of the PHIPA defines “personal health information” (“PHI”) as oral or documentary identifying information about an individual that, among other things, relates to the individual’s physical or mental health, the provision of their health care, identifies their health care provider or the individual’s health number, payments or eligibility for health care in respect of the individual.
19The documents in issue in this case are in the possession of the organizational respondent’s OHCM unit because OHCM staff receive and review health information of employees in the course of their duties managing disability claims and accommodation needs. In light of the nature of the documents and the sources of the information as described by the respondents, I find that the requested materials come within the meaning of PHI as defined in section 4 of the PHIPA.
20The OHCM is not in of itself a health information custodian, but rather is a recipient of health information. As an entity that uses PHI provided by a health information custodian, the OHCM comes under the ‘recipient’ rules of the PHIPA. Pursuant to section 49(1) of the PHIPA, a recipient of PHI may only use and disclose information for the purpose that the health information custodian is authorized to do so, or when required by law:
- (1) Except as permitted or required by law and subject to the exceptions and additional requirements, if any, that are prescribed, a person who is not a health information custodian and to whom a health information custodian discloses personal health information, shall not use or disclose the information for any purpose other than,
(a) the purpose for which the custodian was authorized to disclose the information under this Act; or
(b) the purpose of carrying out a statutory or legal duty.
21In summary, under section 49, a recipient may utilize and release PHI in limited circumstances; specifically, to comply with a statutory or legal duty or undertake the use and disclosure for “a purpose” which the health information custodian is authorized to under the PHIPA.
22The PHIPA delineates a range of permissible “purposes” that health information custodians, and correspondingly recipients of PHI, may use and disclose PHI. By virtue of sections 37(1)(h) and 41(1)(a) of the PHIPA, a health information custodian/agent is authorized to use and disclose PHI without consent of the individual “for the purpose of a proceeding or contemplated proceeding” in which the custodian/agent “is expected to be a party or witness” or for the purposes of complying with a summons, order or procedural rule. The term “proceeding” is a defined term in section 2 of the PHIPA to include a proceeding held before, among others, a court, a tribunal, a commission, a justice of the peace, a coroner, a committee of a regulating body of a health profession, an arbitrator or a mediator.
23Consequently, as a recipient of PHI, the OHCM unit is restricted from using or disclosing the applicant’s files to the respondents unless the OHCM unit has the applicant’s consent; does so to comply with a statutory or legal duty; the use/disclosure is for the purposes of a proceeding in which the recipient is a witness or party; or to comply with a summons, order or procedural rule.
What does the OHSA prescribe regarding access and/or disclosure?
24The OHSA addresses health and safety issues in the workplace and establishes procedures in connection with workplace hazards. The OHSA deals with “health records” and, while the statute does not explicitly define this term, I am satisfied, based on the respondents’ description of the OHCM files, that the information sought by the respondents pertaining to the applicant’s medical status constitute “health records” coming within the ambit of the OHSA.
25The relevant provision of the OHSA in relation to the respondents’ Request is section 63, which deals with the issue of confidential information. Subsection 63(1)(f) provides that no person shall disclose information obtained in any medical examination, test or x-ray of a worker made or taken under the Act unless in non-identifiable format. Subsection 63(2) sets out when an employer can access confidential information of an employee. The section states:
Employer access to health records
(2) No employer shall seek to gain access, except by an order of the court or other tribunal or in order to comply with another statute, to a health record concerning a worker without the worker’s written consent.
Subsection (6) notes that the confidentiality provisions of section 63 prevail despite anything to the contrary in PHIPA.
Summary of OHSA and PHIPA
26In light of the broad wording of the confidentiality obligations under section 63 of the OHSA, it appears that the organizational respondent, as the employer, may not make use of the applicant’s health records unless the applicant, as the worker, provides consent or access is ordered by a court/tribunal or is required to comply with a statute. The organizational respondent is also prohibited from disclosing any health records identifying the applicant.
27Similarly, it appears that the OHCM, as a recipient of PHI under section 49 of the PHIPA, may only use and disclose the applicant’s PHI for the purposes of carrying out a statutory or legal duty or as permitted for the authorized purposes, set out in sections 37(1)(h) and 41(1)(a), of participating as a party or witness in a proceeding and/or complying with a summons, order or procedural rule.
28A critical element of the relevant provisions of both statutes is the safeguarding of confidential health information. However, while the Acts restrict use and disclosure to limited circumstances, both clearly also recognize that health information may be accessed and released either because of a legal imperative or by order of a court or tribunal. As such, the issue I must decide is whether it is appropriate in the circumstances of this case to allow the respondents to make use of the applicant’s PHI and permit them to disclose the information to non-party witnesses.
Analysis of the Request
29The Tribunal has the power to compel the production of documents under section 43(3)(i) of the Code and pursuant to section 5.4(1)(e) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, having promulgated its own practice rules. In order to provide a fair, just and expeditious resolution of any matter before it, the Tribunal may, pursuant to Rule 1.7(p) of the Tribunal’s Rules of Procedure (“Rules”), require a party or other person to produce any document and information.
30Ordinarily, a party’s disclosure obligations are triggered under Rule 16 of the Tribunal’s Rules. Rule 16 stipulates that parties are to exchange all arguably relevant documents in their possession 21 days after the Notice of Confirmation of Hearing is sent out by the Tribunal, which only occurs after the application, response and any reply have been filed.
31While the Tribunal generally requires respondents to file a completed response prior to requesting disclosure, the Tribunal has exercised its discretion to allow for early production of documents where a respondent needs certain information to file a response: see, for example, Higgins v. Humber River Regional Hospital, 2011 HRTO 1074.
32The threshold test for disclosure at a pre-hearing stage is “arguable relevance”, which requires that the party seeking production demonstrate a nexus between the information sought and the facts or issues in dispute before the Tribunal. A nexus may be established if the sought-after information goes to prove or disprove a fact or issue in dispute or provides an inferential link to support a theory of the case or line of defence. If the materials sought meet the threshold standard of “arguable relevance”, the Tribunal must next consider whether there are any issues of prejudice in granting the disclosure. A finding that a document is arguably relevant for production does not mean that such information will necessarily be admissible as evidence at the hearing on the merits: McKay v. Toronto Police Services Board, 2009 HRTO 1220.
33The respondents highlight a multitude of health-related topics raised in the Application and submit that they require access to the OHCM files for the purposes of preparing their Response to answer these matters. The applicant does not dispute that the requested disclosure is arguably relevant to the facts and issues regarding the nature of her disability, whether suitable alternate work was offered by the respondents and the sufficiency of the medical information. The applicant consents to limited access and disclosure of her PHI to the respondents; specifically, only the respondents, their legal advisors and those giving instructions may review the PHI from September 2006 and onwards in relation to the Application.
34Based on the written submissions, the parties concur that the organizational respondent’s OHCM files from September 26, 2006 and onwards regarding the applicant’s health are arguably relevant to the factual and legal issues in the Application and further agree that the documentation can be disclosed to the respondents, their legal advisors and any individuals instructing counsel for the purposes of preparing a Response.
35The main issue in dispute revolves around whom, other than the respondents, their legal advisors and individuals instructing counsel, may also, at this stage of the proceeding, be permitted to access the applicant’s PHI contained in the OHCM files.
36The respondents note that some Tribunal jurisprudence has allowed disclosure of PHI to potential witnesses on a “need to know basis” for the purpose of preparing a response to an application, citing Graham v. Children’s Hospital of Eastern Ontario, 2010 HRTO 2515 and O’Brien v. Toronto Transit Commission, 2012 HRTO 170.
37The applicant submits that disclosure to non-parties who may not give evidence in the hearing of the Application is contrary to her privacy interests and she distinguishes Graham, above, and O’Brien, above, on the basis that those decisions did not give full consideration to the confidentiality issues at stake.
38There is little doubt that in a legal proceeding disclosure of personal information about an individual’s health can raise significant issues of confidentiality and, therefore, necessitates a careful balancing of privacy interests with administrative principles of due process. Recently, the Ontario Court of Appeal affirmed the importance of a person’s privacy interests in their personal information: Jones v. Tsige, 2012 ONCA 32 at para. 66. The Supreme Court of Canada has also emphasized the need to shield medical records from prejudicial production requests and unnecessary intrusion in the disclosure process: R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411; M. (A.) v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157; and R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668.
39This Tribunal has held that, when assessing disclosure requests, the Tribunal must consider whether fairness in the circumstances requires that the documents ordered for production be subject to certain limitations, terms or conditions, particularly if there are extenuating circumstances, such as privilege claims or privacy issues that need reconciliation or protection: Quesnelle v. Waypoint Centre for Mental Health Care, 2012 HRTO 982 at paras. 16-17. See also Washington v. Toronto Police Services Board, 2009 HRTO 217, wherein the Tribunal provided a detailed discussion of the relevant legal principles and values.
40I understand the applicant’s concern that individuals who, ultimately, might not be called to give evidence at the hearing may see her confidential health information. I appreciate that the documents in the OHCM files contain personal details about the applicant’s medical status and it is likely the documents were provided and received with an expectation that some of the information would be treated with a certain level of confidentiality. However, I note that the health information was collected by the respondents in the employment context to manage the applicant’s sick leave and enable accommodation. The respondents now seek permission to review this health information with their potential witnesses in order to answer the applicant’s allegations and address contested issues relating to the sought after material.
41I do not accept the applicant’s position if this Tribunal was to order disclosure of her PHI to the respondents’ potential witnesses that would conflict with objectives of the PHIPA. The fact that PHIPA’s provisions provide for both use and disclosure of PHI when a custodian/agent is expected to participate in a contemplated proceeding signals that health information may be reviewed and shared by a custodian/agent for the purposes of preparing for anticipated litigation. If the PHIPA permits use and disclosure when anticipating litigation, it is reasonable to conclude this Tribunal can permit the disclosure of PHI to potential witnesses when the proceeding has already commenced and is advancing towards mediation and/or a hearing.
42I find that it is appropriate to allow the respondents to access the applicant’s PHI and disclose the documents to potential witnesses, such as OHCM staff, SunLife employees, medical personnel and experts, for the purposes of preparing a Response. The Application contains several allegations regarding the applicant’s disability, her medical restrictions, her needs and accommodation and the events giving rise to the termination of employment. Given the various discriminatory events and experiences alleged by the applicant regarding her health concerns, medical status, accommodation restrictions, I accept that the respondents may need to review the applicant’s health information with potential witnesses to defend against the allegations.
43While I appreciate the applicant’s concerns regarding her privacy, in light of the nature and scope of the allegations made in the Application and what is permissible use and disclosure prescribed by the PHIPA and the OHSA, I agree with the respondents that they should be allowed to disclose the content of the applicant’s OHCM files with their potential witnesses, including OHCM employees, Sun Life employees, medical personnel and experts, to facilitate their ability to fully respond to and defend against the Application and/or because those individuals may be called to give evidence at the hearing in relation to the documentation.
44The applicant’s concerns may, to some extent, be alleviated by the respondents’ assurance to handle the health information “on a need to know basis”. The respondents are cautioned to ensure that their use and disclosure of the information is no more than is reasonably necessary to facilitate preparation of the Response and defend against the Application.
45In addition, the Tribunal directs counsel for the respondents to state and confirm with the potential witnesses with whom the health information is canvassed that they are to strictly maintain the confidentiality of the information. All parties are reminded of Rule 3.3 of the Tribunal’s Rules of Practice, which states:
Parties and their representatives may not use documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal.
46In summary, pursuant to section 63(2) of OHSA and section 49(1) of PHIPA which permit disclosure when complying with a legal order and when participating in a proceeding as a witness, and in accordance with the Tribunal’s Rules of Procedure, I permit the respondents to use the applicant’s health information and allow disclosure with potential witnesses in relation to that information, specifically OHCM employees, Sun Life employees, medical personnel and experts, for the purposes of participating in this proceeding.
Extension of Time to the Respondents
47The respondents request that they be granted an extension of 35 days for the filing of their Response from the date on which the Tribunal issues its decision in respect of this Request.
48From the applicant’s perspective, the respondents should be able to file a Response because the organizational respondent prepared fulsome pleadings in the OLRB matter, which raised facts that overlapped with the present Application. However, I note that, based on the materials provided by the applicant, the focus of the duty of fair representation proceeding before the OLRB was different then this Application and that, while some of the facts are the same, many of the allegations and legal issues are different.
49In the ordinary course, a respondent has 35 days from the date of receipt of the Application to submit a Response. I find that the respondents’ request for an extension of 35 days from the date of the Tribunal’s Order is not excessive.
Disclosure to the Applicant
50The applicant seeks a copy of her health information as contained in the OHCM files.
51The respondents oppose production of the entire OHCM file on the basis that certain materials may be privileged. The respondents submit that disclosure should occur in the normal course of the Tribunal process in accordance with the Tribunal’s Rules of Procedure.
52There is little doubt that the documents sought by the applicant are likely to form part of the respondents’ arguably relevant disclosure pursuant to Rule 16 and, as such, the respondents will, in the near future, need to determine what documents they seek to claim privilege over. Although I appreciate the respondents’ concern that the OHCM file may consist of mixed information and the documents will need to be vetted to ensure that privileged documents are protected, I do not accept that this is a sufficient basis to deny the applicant access to documents containing her own health information.
53Part V of the PHIPA provides an individual with a general right to access her personal health information subject to certain exceptions, including legal privilege: section 52(1)(a). However, in accordance with section 52(2), if access is restricted because of an exception, such as privilege, the individual is nevertheless entitled to access that part of the record to which the exception does not apply.
54I agree with the applicant that, since the respondents claim to require her health information for the purposes of preparing their Response, the applicant should be entitled to access and use the same documents for the purposes of submitting a Reply. In addition I believe that, given the circumstances of this case, early disclosure of the OHCM files to both parties may be useful to help facilitate a better understanding of the facts and issues should the parties engage in mediation.
55Nevertheless, the existence of potentially privileged information interspersed with the applicant’s health information in the OHCM files raises a legitimate concern. As such, I will order the respondents to provide the applicant with only those parts of the applicant’s OHCM files that can reasonably be severed from the parts of the records for which privilege is claimed. The respondents are required to specify when a document is redacted due to privilege, identify the general nature of the document and category of privilege being claimed.
ORDERS
56The Tribunal orders the following:
i. The respondents are granted access to the applicant’s health information as contained in the organizational respondent’s OHCM files from September 26, 2006 and onwards only in respect of the facts and allegations raised in this Application and for the purposes of responding to the Application;
ii. Upon receipt of the documents as identified in (i), the respondents are required to promptly provide the applicant with a copy of the documents along with specifying when a document is redacted due to privilege, identifying the general nature of the document and what category of privilege is being claimed. The respondents are also required to confirm with the Tribunal that the disclosure was delivered to the applicant;
iii. The respondents’ advisors, individuals giving instructions to counsel, and potential witnesses (in relation to information contained in the disclosed documents) are the only individuals permitted to access, review and use the applicant’s health information as identified in (i);
iv. Counsel for the respondents is required to state and confirm with all individuals with whom the health information is canvassed that the individuals are required to strictly maintain confidentiality of the information;
v. The respondents’ request for an extension of time to file a Response is granted. The respondents are required to file a Response within 35 days from the date of this Interim Decision;
vi. The applicant may file a Reply with the Tribunal, copied to the respondents, within 21 days of receipt of the Response; and
vii. The parties are reminded of their obligations under Rule 3.3.
57I am not seized of this matter.
Dated at Toronto, this 26th day of November, 2012.
“Signed by”
Ena Chadha
Vice-chair