Vinayagamoorthie v. Dr. Jeannette Salib’s Doctor’s Office, 2013 HRTO 938

Human Rights Tribunal of Ontario

B E T W E E N:

Patricia Vinayagamoorthie Applicant

-and-

Dr. Jeannette Salib’s Doctor’s Office Respondent

INTERIM DECISION

Adjudicator: Ena Chadha Date: May 30, 2013 Citation: 2013 HRTO 938 Indexed as: Vinayagamoorthie v. Dr. Jeannette Salib’s Doctor’s Office

WRITTEN SUBMISSIONS

Dr. Jeannette Salib, Respondent

Zohar R. Levy, Counsel

1The applicant filed this Application on March 20, 2013, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging discrimination with respect to services, goods and facilities on the basis of place of origin and ethnic origin.

2The applicant alleges that the respondent family physician’s office treated her unfairly because of her ethnic background and that the office provided preferential treatment to persons whose ethnicity is the same as the doctor’s receptionist and her husband.

3Counsel for the respondent wrote to the Tribunal on May 23, 2013 indicating that the doctor’s full name is Jeannette Salib. Counsel notes that the respondent intends to file a Response (Form 2) and requests an extension of time to do so. However, prior to filing the Response, the respondent seeks confirmation that, in accordance with s. 41(1)(a) of the Personal Health Information Protection Act, 2004, S.O 2004, c. 3, Sched. A (“PHIPA”), the respondent may rely on the personal health information of the applicant. Counsel requests the Tribunal’s confirmation that the respondent may rely on the applicant’s personal health information or, alternatively, that the applicant provide written consent.

4Recently, in Dewdney v. Toronto Transit Commission, 2012 HRTO 2212, the Tribunal discussed provisions related to use and disclosure of personal health information as set out in the PHIPA. The Tribunal ordered disclosure of personal health information that was arguably protected by privacy legislation for the purposes of a Tribunal proceeding pursuant to the Tribunal’s power to control its process. In Dewdney, the Tribunal explained as follows:

17. Section 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.

18. Section 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.

19. The 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. (emphasis added)

5Based on the foregoing, it appears that a health care practitioner who is named as a party in a legal proceeding may use and disclose a patient’s personal health information, without the patient’s consent, for the purposes of participating in the proceeding.

6While it appears that PHIPA provides for the use and disclosure of an applicant’s personal health information by a respondent doctor in order to respond to a Tribunal application, it is helpful that this respondent has alerted the Tribunal and applicant of its concerns and has requested the applicant’s consent prior to engaging in any use and disclosure.

7In these circumstances, the Tribunal directs the applicant to indicate her position with respect to the issue of consent and/or disclosure. Specifically, if the applicant does not consent to the respondent’s use and disclosure of her personal health information, then she is required to provide written submissions in support of her position to the Tribunal and copied to the respondent.

8The Tribunal directs as follows:

i. The style of cause is amended to reflect the respondent’s full name;

ii. Within 21 days of the date of this Interim Decision, the applicant must file with the Tribunal, copied to the respondent, either her written consent or written submissions responding to the above-noted issue regarding the respondent’s use and disclosure of her personal health information;

iii. If the applicant does not provide her written consent or written submissions by the required time, the Tribunal may dismiss the Application as abandoned;

iv. Within 14 days of receipt of the applicant’s submissions, the respondent is directed to file with the Tribunal, copied to the applicant, any reply submissions;

v. The respondent’s deadline to file a Response (Form 2) is extended until further notice; and

vi. The Tribunal will consider the parties’ submissions and may issue further directions with respect to any issues and/or may schedule future steps accordingly.

9I am not seized.