HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jody Robinson
Applicant
-and-
Orillia SoldiersÕ Memorial Hospital
Respondent
INTERIM DECISION
Adjudicator: David Muir
Indexed as: Robinson v. Orillia SoldiersÕ Memorial Hospital
WRITTEN SUBMISSIONS
Jody Robinson, Applicant
David Baker, Counsel
Orillia SoldiersÕ Memorial Hospital, Respondent
Brenda Bowlby, Counsel
1This is an Application under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the ÒCodeÓ), alleging discrimination with respect to employment because of disability and reprisal, contrary to the Code. In particular the applicant alleges that the respondent has failed to accommodate her disability-related need to work in a scent-free environment by failing to adequately enforce its Minimal Fragrance Policy.
2The respondent has filed a Request for order During Proceeding (ÒRequestÓ) seeking the following Orders:
a. An Order requiring the applicant to sign a written Consent to Disclosure of her Personal Health Information in order to permit the respondentÕs counsel to talk in an unrestricted manner with the RespondentÕs Occupational Health and Safety Manager and Physician or, alternatively, dismiss the Application as a result of the applicantÕs bad faith.
b. That the applicant obtain and disclose to the respondent any medical records from any doctor who she has consulted or who has provided treatment to her in connection with her disability as well as her records from Orillia Soldiers Memorial Hospital in respect of any treatment she has received in Emergency in relation to this disability, except for those documents which have already been disclosed.
3The text of the written consent contemplated by the respondent is as follows:
I, Jody Robinson, revoke all prior consents and hereby authorize Orillia Soldier's Memorial Hospital's Patient Records department and Manager of Occupational Health and Safety Manager, Catherine Gardner, and Dr. Joel Anderson to speak with
i) any staff of Orillia Soldier's Memorial Hospital involved in responding to my Application before the Human Rights Tribunal of Ontario,
ii) legal counsel for Orillia Soldier's Memorial Hospital, regarding my personal health information.
4The two individuals identified in the Request are: the Occupational Health and Safety Manager, a nurse employed by the respondent who was involved in the respondentÕs accommodation efforts for the applicant; and, Dr. Anderson, a physician allegedly retained by the respondent to provide it advice on its accommodation effort. The applicant contends that in addition to whatever other role he played in this narrative he was also a treating physican of the applicant in relation to her alleged disability.
5The thrust of the respondentÕs argument in support of these Orders is that the applicantÕs unwillingness to provide an unrestricted consent effectively precludes the respondent from properly preparing its case by speaking to the people who advised it in its dealings with the applicant.
6The applicant opposed the Request although I observe that she has already consented in part to the Request as set out in para. 2(b). The applicant also acknowledged that her consent is not required for respondentÕs counsel to speak with its Occupational Health and Safety Manager.
7The applicant opposes the attempt by the respondent to have her treating physician speak in an Òunrestricted mannerÓ with respondentÕs counsel or to act as its expert in this proceeding. The reference to Dr. Anderson being retained as an expert appears to go beyond what the respondent is seeking and will not be commented on further at this stage.
8In any event to allow unrestricted access, asserts the applicant, would be a breach of Dr. AndersonÕs duty of confidentiality and his fiduciary duty to the applicant. The applicant also argues that the form of consent sought by the respondent would permit the disclosure of her personal health information not previously communicated to her to be communicated verbally to the respondent. The applicant asserts that this information would not be subject to the TribunalÕs Rules with the potential result that the respondent would have greater access to her health information than she had.
9The applicant also argues that the request for documents from Òany doctor who she has consulted or who has provided treatment to her in connection with her disabilityÓ is overbroad and reaches far beyond the arguably relevant disclosure to which the respondent is entitled.
10I will deal with this last aspect of the Request first. To the extent that the applicant has not already disclosed this material, as requested, she is required to do so forthwith. Although the applicant asserts that the request is overbroad it is not entirely clear why this is the case. It may be that in the formulation of the request the respondent did not include the qualifier Òarguably relevantÓ in describing what was sought. However, the applicantÕs health and the nature of her disability are in issue in this case, and it is clear to me that medical records related to the diagnosis and treatment of her alleged disability by any health care professional are likely arguably relevant to the issues in dispute. I would limit the scope of the order in time to the period commencing January 1, 2009. Accordingly to the extent not already produced the applicant will produce forthwith all arguably relevant medical records related to the diagnosis and treatment of her alleged disability for the period January 1, 2009 to date.
11The applicant requests that the respondent be responsible for the costs of such production, if any. The parties to these proceedings are generally expected to bear their own costs. The parties are also responsible for the production of all arguably relevant documents. I see no reason to depart from this principle or why the respondent should be responsible for their production in this case.
12As regards to the ability of the respondent to speak to its Occupational Health and Safety Manager, as indicated, the applicant conceded, that her consent is not required. However the applicant asserts that this may result in the respondent having information that she does not have. It seems to me that this is not an unusual circumstance. It is also the case that there is no property in a potential witness, the applicant is perfectly able to speak to the respondentÕs employees about the issues in dispute and as such has access to the same information on the same basis as the respondent. I would also observe that if in the course of the respondentÕs speaking with its employee about these matters further documents come to light, they would be subject to disclosure on the basis of arguable relevance and/or production in the normal course and pursuant to the TribunalÕs Rules.
13The remaining question is whether or not the respondent is entitled to a consent from the applicant allowing the respondent unrestricted access to a treating physician. I note again that there is a significant dispute about the role that Dr. Anderson played in this case. In my view in all of the circumstances it rests with the respondent to show that there was not a therapeutic relationship between the applicant and Dr. Anderson and other than asserting that Dr. Anderson provided advice to the hospital about the applicantÕs need for accommodatoin there is no evidence to counter the applicantÕs claim that a therapeutic relationship between them existed. I am satisfied based on the material filed that there was a therapeutic relationship between Dr. Anderson and the applicant. If that was not his intended role that should have been made clear to the applicant and at this stage it appears that it was not.
14These issues were raised by the respondent in a prior Request and were canvassed without a final conclusion in 2013 HRTO 74. Amongst the observations made by the Tribunal at that time was that the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sch. A (ÒPHIPAÓ), appears to permit the disclosure of personal health information by a Òhealth information custodianÓ for the purposes of legal proceedings in which the custodian is a party or witness (s. 37(1)(h) and s. 41). While it may be that these provisions apply to the Occupational Health and Safety Manager of the respondent (because the respondent is a party), I do agree with the respondent that these provisions may not be sufficient to expressly authorize a treating physician to speak with respondentÕs counsel to prepare its case. Given the applicantÕs refusal to consent to unrestricted access to Dr. Anderson, I understand the respondentÕs position that there is a legitimate concern that were he to attempt to rely on s. 37(1) the applicant might take action against him in making a complaint to his professional licensing board.
15Were this issue to be determined entirely on an interpretation of section 37(1) of the PHIPA I might have come to a different conclusion than I have, however I am persuaded that the provisions of the PHIPA are not determinative.
16The applicant argues that the limitation on contact between her physician and the respondentÕs counsel does not arise from privacy legislation as such but from the physicianÕs professional obligations to their patient recognized at common-law and in legislation. In this regard the applicant relies on a decision of the Ontario Court in Burgess (Litigation Guardian of) v. Wu 2003 CanLII 6385 (ON SC), [2003] O.J. No 4826 which I find is on point and likely binding on me.
17The decision results from a motion for an Order excluding an expertÕs report prepared in a medical malpractice action. In Burgess there had been an agreement between counsel that the defendant could contact plaintiffÕs physicans so long as the content of the contact was recorded and provided to plaintiff. As an alternative it was suggested that there could be conference calls with the physicans and both counsel. In the result the defendant did not entirely comply with this agreement and contacted one of the plaintiffÕs physicians without either including plaintiff on a call or recording the entirety of the contact(s). In addition defendant purported to have this physican prepare an expert report on the case despite his prior involvement in a brief therapeutic relationship with plaintiff.
18One of the issues as framed by the court was whether it should refuse to permit the plaintiffÕs former physician from testifying as an expert. Of more interest to us the court also dealt with a number of related issues such as the scope of access by the defence to a plaintiffÕs physicians and the duties of a physician to a patient who commences a lawsuit.
19In the courtÕs reasons it was noted that the physicianÕs duty of confidentiality had arisen from the ethics of the medical profession and from the common law and is now a legislated duty. On the issue of importance here the court held that it is impermissible for a party to contact a patientÕs physician before trial without consent. Once the trial commences of course different considerations apply - a physican called to the stand to give evidence must answer all of the questions put to him or her and may not rely on confidentiality to avoid answering. The question is what is permissable prior to trial. The problem is exacerbated here because the TribunalÕs process does not contemplate pre-heaing oral discovery.
20The court after reviewing the law formulated the following rules:
Rule 1: Access to confidential medical information before trial can be obtained only through two routes of judicial supervision:
(a) By invoking a discovery provision of the rules of court
(b) By seeking a special disclosure order the from the judge excercising inherent jurisdiction
Rule 2: A plaintiffÕs health care professional have a duty to refuse to disclose information about their patients unless required to do so by law.
Rule 3 Unless the patient consents, representatives of a party in litigation may not have any communications at all with the patientsÕ physicians concerning the patient.
Rule 4. Even where access is permitted, the person under a duty of confidentiality cannot be asked for opinions beyond those formed during treatment of the patient unless this is specifically consented to or ordered.
21In my view in the circumstances of this case the principles outlined in Burgess apply to the TribunalÕs process. Accordingly it would be inappropriate for me to order that the applicant provide consent to unrestricted access by the respondent to Dr. Anderson who it appears entered into a therauputic relationship with the applicant whatever other role he played vis a vis the respondent. I note that the court in Burgess endorsed what the court understood to be the usual protocol, which in fact had been engaged in that case but failed; that counsel seek the consent of the other side and either by way of recording the session or by teleconference call, both parties have access to the information at the same time.
22In my view such an approach would be appropriate in this case. The respondent should be allowed to communicate with an individual who appears to have been involved in the events giving rise to this dispute and may well be a witness in this case. I agree with the respondent that it is not an answer that it is able to summons Dr. Anderson to the hearing. Leaving the respondent with only that option can only delay the hearing of this case causing delay and further expense for both parties.
23The applicant has indicated that she will consent subject to the requirement that all information conveyed be recorded in some way and provided to her at the same time as it is received by the respondent. There are two obvious ways in which this could be accomplished Ð one being written interrogatories to be delivered and filed. The other which may be more time efficient would be a conference call of both counsel and Dr. Anderson. The hearing is scheduled to begin in early December, the latter option may be preferable for that reason. However I will leave that to the parties to sort out.
DIRECTIONS
24The Tribunal makes the following Directions;
a. The applicant will deliver to the respondent forthwith all arguably relevant medical records related to the diagnosis and treatment of her alleged disability for the period January 1, 2009 to date;
b. The respondent is entitled to speak to Dr. Anderson in preparation for this hearing on the condition that the applicant received the information exchanged between the respondent and the physician at the same time. The parties may make such arrangements as are necessary to accomplish this end prior to the scheduled hearing of this case
25I am not seized.
Dated at Toronto, this 24^th^ day of September, 2013.
ÒSigned byÓ
David Muir
Vice-chair