Borba v. North York General Hospital, 2015 HRTO 1709

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carla Borba

Applicant

-and-

North York General Hospital

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: December 18, 2015 Citation: 2015 HRTO 1709 Indexed as: Borba v. North York General Hospital

WRITTEN SUBMISSIONS

North York General Hospital, Respondent

Scott Williams, Counsel

1This Interim Decision addresses the respondent’s request to strike certain documentary evidence and oral testimony provided at the hearing of this matter on November 24, 2015.

2The respondent requested that a February 20, 2014 letter submitted by Dr. Alan Fung to the College of Physicians and Surgeons of Ontario (“CPSO”) and any testimony relating to the letter should be struck from the Tribunal’s record. The respondent also requested that the decision of the CPSO’s Inquiries Complaints and Reports Committee (“ICRC”) should not be considered in this proceeding nor should the Tribunal consider any testimony referencing this decision.

3The applicant did not respond to the respondent’s request and the time for doing so has passed.

Findings

4The respondent’s request is granted.

5Section 36(3) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (“RHPA”) provides as follows:

No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act.

6Section 36(3) of the RHPA contains a blanket prohibition on the use of any documents from any proceeding carried out under the Act in a civil proceeding, other than those civil proceedings specifically enumerated in s.36(3). The Tribunal has applied s.36(3) of the RHPA to prevent both applicants and respondents from relying upon documents created as a result of a proceeding under the RHPA in an Application under the Code: See for example, K.M. v. Kodama, 2014 HRTO 526. A CPSO proceeding is a proceeding that is carried out under the RHPA.

7The February 20, 2014 letter submitted by Dr. Alan Fung to the CPSO is a “document or thing prepared for… a proceeding” under the RHPA. Therefore, the letter is inadmissible and cannot form part of the record of this proceeding. As well, any ICRC decision in regards to a complaint made to the ICRC against Dr. Fung is inadmissible as it is a “decision made” in a proceeding under the RHPA. Therefore, it cannot be relied upon when the parties make their submissions in this case. All references in the oral testimony of witnesses to the contents of the letter and/or the decision are struck from the record of this proceeding.

order

8For the reasons set out above, the respondent’s request is granted. The February 20, 2014 letter submitted by Dr. Alan Fung to the CPSO, the ICRC decision in relation to the applicant’s complaint against Dr. Fung, and any reference to either of these documents shall not form part of the record of this proceeding and cannot be relied upon by either party in this proceeding.