Whitehurst v. Markham Stouville Hospital, 2013 HRTO 1239

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elaine Whitehurst

Applicant

-and-

Markham Stouville Hospital, Elaine Forde and Rhonda Nicholas

Respondents

INTERIM DECISION

Adjudicator: Brian Cook Date: July 16, 2013 Citation: 2013 HRTO 1239 Indexed as: Whitehurst v. Markham Stouville Hospital

WRITTEN SUBMISSIONS

Elaine Whitehurst, Applicant Self-represented

Markham Stouffville Hospital, Elaine Forde and Rhonda Nichols, Respondents Sarah Eves, Counsel

1This Interim Decision deals with the respondents’ request that they be permitted access to the applicant's medical records held by its Occupational Health and Safety Department and to her Workplace Safety and Insurance Board (WSIB) file.

2The applicant states that she has disclosed the file that she received from the WSIB. I note that she has recently filed a copy of documents from the WSIB with the Tribunal. It appears therefore that the applicant has disclosed the WSIB records in her possession.

3The applicant asked for more time to respond to the respondent’s request for disclosure of her medical records, indicating that she was seeking legal advice. She indicated that she would make her submissions by July 3, 2013. However, to date, the applicant has not provided any submissions on this request other than to indicate that she hopes that her confidential records can be kept private and confidential.

4The respondents are seeking access to medical records that are held by the hospital’s Occupational Health and Safety Department. These include records that have been submitted by the applicant’s health care providers and internal records of the Occupational Health and Safety Department as well as internal records relating to the applicant's claim for benefits from the WSIB. These documents are referred to as “the records” in this Decision. The respondents seek access to the records for the period from January 2011 to September 1, 2011 and from May 1, 2012 to March 18, 2013. These are the periods that are relevant to the applicant's allegations in regard to her Application as amended.

5The issues in this case concern the applicant’s disability and her allegations that she was not appropriately accommodated. The records in issue appear to be relevant to these issues.

6The respondents state that internal WSIB and occupational health and safety records are kept confidential by the hospital’s Occupational Health and Safety staff, pursuant to the Personal Health Information Protection Act, 2004 S.O. 2004, c. 3, Sched. A (PHIPA).

7In Dewdney v. Toronto Transit Commission, 2012 HRTO 2212, the Tribunal considered the operation of PHIPA and the Occupational Health and Safety Act, R.S.O. 1990, c O.1, which restricts an employer’s access to an employee’s health records. In Dewdney, the Tribunal concluded that if the health records are arguably relevant to the issues before the Tribunal and if the respondent is the applicant's employer, access to the health records can be granted on the consent of the applicant or by order of the Tribunal. In making such an order, the Tribunal can impose conditions to help protect the confidentiality of the records. In addition, Rule 3.3 of the Tribunal’s Rules of Procedure states:

Parties and their representatives may not use documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal.

8The applicant has indicated that she would prefer that her medical records be kept confidential. This is entirely understandable. However, the applicant has commenced a legal action against the respondents which puts the nature and extent of her disability in issue and also puts in issue the measures taken by the respondent to accommodate her disability. Records held by the Occupational Health and Safety department are important documents relating to the issues that the applicant has put into issue in the Application.

9In the absence of the records, the Tribunal may not be able to fairly adjudicate her Application, and the respondents’ ability to respond to the allegations may be unfairly hampered.

Order

10I conclude that it is appropriate for the respondents to have access to the records in respect of the periods from January 2011 to September 1, 2011 and from May 1, 2012 to March 18, 2013 in respect of the facts and allegations raised in this Application and for the purposes of responding to the Application.

11The hospital Occupational Health and Safety Department is ordered to review the health care records concerning the applicant and to provide to the respondents’ counsel copies of the records in the periods January 2011 to September 1, 2011 and May 1, 2012 to March 18, 2013 in respect of the facts and allegations raised in this Application.

12Respondents’ counsel may review the records with the personal respondents and other individuals to the extent necessary to respond to the facts and allegations raised in this Application. Counsel shall ensure that copies of the records are not retained by anyone consulted.

13Upon receipt of the records, the respondents’ counsel shall provide the applicant with a copy of the records received.

14If the applicant has any objection to the further disclosure of any of the records for any reason apart from the fact that they are personal in nature (for example, that particular records are not relevant to the Application), she shall advise respondents’ counsel within one week of her receipt of the records. Respondents’ counsel shall not review the records with anyone until the end of that week. If the respondents’ counsel does not agree with the applicant, counsel shall advise the Tribunal immediately and not review the contested documents without further direction from the Tribunal.

15The applicant has filed a package of documents that appear to be the documents she intends to rely on at the hearing. The respondents are required to file the documents they intend to rely on and a statement of the anticipated evidence of any proposed witness by August 23, 2013.

16The parties are again reminded that parties and their representatives may not use the records for any purpose other than in the proceeding before the Tribunal.