Fallico v. St. Joseph’s Health Centre, 2013 HRTO 1192

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Renato Fallico Applicant

-and-

St. Joseph’s Health Centre Respondent

DECISION

Adjudicator: Jennifer Scott Date: July 9, 2013 Citation: 2013 HRTO 1192 Indexed as: Fallico v. St. Joseph’s Health Centre

APPEARANCES

Renato Fallico, Applicant Self-represented

St. Joseph’s Health Centre, Respondent Brian Mulroney, Counsel

Introduction

1This Application was filed on September 24, 2012 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant was terminated by the respondent because he disclosed confidential patient information. The applicant alleges that he had a moral, legal and ethical obligation to disclose the information under his Roman Catholic faith.

2On December 5, 2012, the respondent filed a Request for Summary Hearing.

3By Case Assessment Direction dated February 12, 2013 (the “CAD”), the Tribunal determined that a summary hearing would be held to hear the parties’ submissions on whether the Application has a reasonable prospect of success. The summary hearing was held by teleconference on May 30, 2013.

4Summary hearings are provided for under Rule 19A.1 of the Tribunal’s Rules of Procedure. It reads as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

5The issue that Rule 19A requires me to determine is whether the Application, in whole or in part, has no reasonable prospect of success. If a finding is made that the Application has no reasonable prospect of success, it is dismissed. In the absence of such a finding, the Application continues to proceed through the Tribunal’s procedure.

6In determining whether an Application has a reasonable prospect of success, the Tribunal will consider one of two questions. Does the allegation of discrimination amount to a Code violation at law; or, can the applicant draw a link between the claim and the alleged prohibited ground of discrimination? The meaning of “reasonable prospect of success” is explained more fully in the case of Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 - 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

7The issue in this case is whether, on the facts set out in the Application, the applicant can draw a link between the termination of his employment and his creed.

ANALYSIS

Background

8The applicant was employed by the respondent as a chaplain from June 2001 until April 26, 2012. The respondent is a 371-bed Roman Catholic community teaching hospital.

9The respondent employs chaplains from several different faith backgrounds to minister to the needs of its diverse patient population. The applicant is Roman Catholic and ministered to Roman Catholic patients. Father Bohdan Winniki (“Father Bohdan”) supervises the Roman Catholic chaplains at the respondent.

10On April 26, 2012, the applicant’s employment was terminated. The respondent asserts the applicant’s employment was terminated because he disclosed confidential information about a patient’s desire to end his life to three individuals not employed by the respondent and outside of the patient’s circle of care (“third parties”). The applicant argues that he had a moral, legal and ethical obligation to disclose this information under his Catholic faith.

11The applicant admits that he told one of the patient’s support people and Father Bohdan that the patient had told him that he wanted to end his life by discontinuing treatment. He states he made the disclosure to Father Bohdan, a health care professional, and the patient’s support person, to save the patient’s life. He denies disclosing the information more broadly as asserted by the respondent. The applicant does not dispute that the support person is not employed by the respondent and is not a regulated health professional.

Statutory Framework

12The Personal Health Information Protection Act, 2004, S.O. 2004, Ch. 3, Schedule A (PHIPA), establishes a statutory regime of privacy pertaining to personal health information. The respondent is a “health information custodian” within the meaning of clause 3(1)(4) of the PHIPA. The applicant was, at all material times, an agent of the respondent.

13Part IV of the PHIPA sets out a number of circumstances in which personal health information may be disclosed. Subsection 40(1) provides that:

A health information custodian may disclose personal health information about an individual if the custodian believes on reasonable grounds that the disclosure is necessary for the purpose of eliminating or reducing a significant risk of serious bodily harm to a person or group of persons.

14The respondent addresses confidentiality issues in its Security of Information and Confidentiality Policy (the “Policy”). Under the Policy, the respondent states its commitment to confidentiality and the authorized release of information. The following affirmation is contained in the Policy:

Individuals have an ethical and legal right to privacy. This right to privacy is based on respect for persons and the principle of autonomy. This ensures that the individual has control over what, and to whom, information about them is disclosed.

15The Policy defines confidential information as information of a sensitive nature in any format which is created or received by the respondent in the course of its business which is not otherwise available to the public. Under the Policy, confidential information must not be discussed in any area where others not entitled to receive that information are present, subject to reasonable limits set out in the Policy.

16Under the Policy, breach of confidentiality includes any intentional or inadvertent unauthorized access to, or disclosure of, confidential information. Discussing any individual’s personal or confidential information may constitute a breach of confidentiality when such discussion is not authorized as necessary to the role of the individual working at the respondent. When a breach of confidentiality has occurred and there is no reasonable justification and/or explanation for the breach, disciplinary action up to and including immediate dismissal may result.

17The Policy sets out circumstances when confidential information may be disclosed. These circumstances include “as obliged by law when the failure to disclose information is likely to place the patient or third parties in imminent danger”. The Policy notes that:

Even when the health care professional is obligated to disclose confidential information by law, confidentiality should be preserved to the maximum possible extent.

18The applicant argues that if a patient communicates a desire to commit suicide, he is under no obligation to keep that information confidential because of the moral and ethical values of his Catholic faith. He asserts that to require him to keep such information confidential discriminates against him on the basis of his creed.

Reason for Termination

19The respondent asserts the applicant’s employment was terminated for disclosing confidential patient information to third parties. The respondent submits that neither PHIPA nor the Policy prohibit the applicant from disclosing confidential health care information provided that information is disclosed through the proper channels and confidentiality is preserved with respect to third parties. The respondent argues that once private information is disclosed to third parties, there is no legal impediment on those parties to keep the information confidential because they are not bound by PHIPA or the Policy.

20The applicant does not dispute the provisions of the PHIPA and the Policy. He asserts that under the Policy, one cannot breach confidentiality without justification. The justification in this case was the patient telling him he wanted to commit suicide. That, in turn, justified the applicant’s decision to tell the patient’s support person.

21There is nothing in PHIPA and the Policy that prevented the applicant from disclosing the fact that the patient wanted to end his life. The applicant was able to follow his religious beliefs by disclosing this information. As stated in the Policy, the failure to disclose this information was likely to place the patient in imminent danger. The applicant was terminated not because he disclosed the information per se, but because he disclosed it to a third party who was not regulated and had no clinical responsibility for the patient. Thus, the termination was unrelated to the applicant’s creed.

22The applicant is unable to establish a link between his creed and his disclosure to a third party, the reason for his termination. He is also unable to establish that the Policy and PHIPA prevented him from disclosing the fact that the patient wanted to end his life, a requirement that, if it did exist, was contrary to his religious beliefs. For these reasons, the Application is dismissed.

ORDER

23The Application is dismissed has having no reasonable prospect of success.