Brako-Acquah v. Centre for Addiction and Mental Health, 2015 HRTO 353

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yaw Brako-Acquah

Applicant

-and-

Centre for Addiction and Mental Health, M S Employment Consultants Ltd. and Sehwan Oh

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: March 20, 2015

Citation: 2015 HRTO 353

Indexed as: Brako-Acquah v. Centre for Addiction and Mental Health

APPEARANCES

Yaw Brako-Acquah, Applicant

Self-represented

Centre for Addiction and Mental Health and Sehwan Oh, Respondents

Jacqueline Luksha, Counsel

MS Employment Consultants Ltd., Respondent

Jasmin Marcos, Representative

Introduction

1This Interim Decision confirms oral rulings made in a case management call I held with the parties to deal with certain production issues in advance of the hearing scheduled for March 30 and 31, 2015.

Legal Principles Relating to Production Requests

2It is well-established that a party seeking production of documents must demonstrate that the information is "arguably relevant" to the proceeding and, if the requested information triggers concerns regarding privacy or privilege, that any such interests in confidentiality are outweighed by principles of fairness. See McKay v. Toronto Police Service Board, 2009 HRTO 1220.

3Documents meeting the "arguable relevance" threshold may not be disclosed or may be subjected limited disclosure if there are extenuating circumstances, such as privilege claims or privacy concerns that need reconciliation or protection. Confidentiality claims often arise in relation to the protection of privacy interests in relation to personal health information.

4In Dewdney v. Toronto Transit Commission, 2012 HRTO 2212, the Tribunal reviewed relevant provisions of the Personal Health Information Protection Act, 2004, S.O 2004, c. 3, Sched. A ("PHIPA") that limit the extent to which health information custodians may use and disclose personal health information. As noted by the Tribunal, by virtue of sections 37(1)(h) and 41(1)(a) of the PHIPA, a health information custodian is authorized to use and disclose personal health information 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.

5In my view, any privacy concerns in this matter can be addressed by permitting the CAMH respondents to redact any information that would identify patients in the materials they produce as part of this proceeding. Permissible redactions would include patient names and any identifying number assigned to patients.

6In addition, the parties should note that Rule 3.3 of the Tribunal's Rules of Procedure states that "[p]arties and their representatives may not use documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal."

Applicant's Production Request

7The Applicant requested the production of certain documents which he submitted were arguably relevant to this Application. The respondents expressed concerns about disclosing any documents which may contain personal health information in the absence of an order from the Tribunal. I ruled in the case management call that the documents described below are arguably relevant and must be produced:

a. Certain forms (Behavioural Observation Sheet, Continuous Observation form and Medical Administration Report Sheet) that the CAMH respondents claim that the applicant failed to fill out for his shifts on March 11, 12, 14, 15, 19, and 20, 2013.

b. Copies of the Assignment book for March 11, 12, 14, 15, 19, 20 and 25 of 2013.

c. Progress notes for the patient to whom the applicant was assigned for his March 19, 2013 shift. The progress notes that should be produced, if not already produced, are progress notes for the applicant's shifts on the Geriatric Admission Unit in March 2013 as well as the day shifts that followed the applicant's shifts.

8All of these documents are arguably relevant because they are relied upon in the negative evaluation that the CAMH respondents made of the applicant's work.

9The CAMH respondents are permitted to redact any information that would identify patients or other nurses' identities. If appropriate, for ease of reference, the CAMH respondent may replace redacted names/identifiers on the documents with identifiers such as "patient A", "patient B", "nurse A", "nurse B", etc. The CAMH respondents are also permitted to replace copies of any documents already filed with the Tribunal with versions containing redactions of information identifying patients or nurses. In the event, that they do so, any copies filed with the Tribunal and delivered to the other parties will be destroyed.

Request Filed by CAMH Respondents

10The CAMH respondents filed a Request seeking the production of certain materials from MS Employment Consultants ("MS") as well as the applicant. I made the following orders and directions in the case management call:

a. Since Ms. Marcos, the representative for MS, did not file a witness statement, the letter filed as part of MS's Response and the notes contained in MS's hearing documents filed with the Tribunal will be considered to be Ms. Marcos' witness statement. Her testimony will be limited to the contents of this letter and these notes.

b. Ms. Marcos is directed to review her files to determine whether MS has any handwritten notes in its possession which relate to the matters raised in the Application. She will also review her files to determine whether MS has any written complaints made against the applicant. If MS does have such documents, they must be filed with the Tribunal and delivered to the other parties.

c. The applicant confirmed that he will not be calling Vivian Ariyo and Rong Ting as witnesses, but will instead cross-examine them when they are called as witnesses by the CAMH respondents.

d. The CAMH respondents confirmed that they no longer intend to call Ponnamma Zachariah as a witness. If the applicant intends to call Ms. Zachariah as a witness, he must file a witness statement for her. Likewise, if the applicant intends to call Caroline Fresnoza and Harvinder Soni as witnesses, he must file a witness statement for them.

e. The CAMH respondents must file witness statements for Lorraine King and Vivian Ariyo.

f. No party will be permitted to rely upon any witness testimony and/or documentation that has not been filed with the Tribunal and delivered to the other parties by the production deadline set out in the Order section below.

Mediation-Adjudication

11The Tribunal directs the parties' attention to Rule 15A of the Tribunal's Rules of Procedure which provides:

15A.1 With the agreement of the parties, the Tribunal member hearing an Application may act as mediator. In such circumstances, the mediator may continue to hear the matter as adjudicator.

15A.2 Where the parties agree to mediation-adjudication, they must sign a mediation-adjudication agreement before the mediation commences.

12If the parties are interested in attempting to settle the case through mediation-adjudication before the Tribunal starts hearing evidence on March 30, 2015, they should advise the Tribunal of such an interest either prior to or at the outset of the hearing.

ORDERS/DIRECTIONS

13The Tribunal makes the following orders and directions:

a. The production deadline in this matter is Friday March 27, 2015.

b. By the production deadline, The CAMH respondents must file with the Tribunal, and deliver to the other parties, the materials listed at paragraph 7 above. The CAMH respondents are permitted to make the redactions set out in para. 9 above.

c. The letter filed as part of MS's Response and the notes contained in MS's hearing documents will be considered to be Ms. Marcos' witness statement. Her testimony will be limited to the contents of this letter and these notes.

d. By the production deadline, MS will file with the Tribunal and deliver to the other parties copies of any handwritten notes in its possession which relate to the matters raised in the Application as well as copies of any written complaints made against the applicant.

e. If the applicant intends to call Ms. Zacharia, Ms. Fresnoza and/or Mr. Soni as witnesses, he must file a witness statement for them by the production deadline.

f. The CAMH respondents must file witness statements for Ms. King and Ms. Ariyo by the production deadline.

g. No party will be permitted to rely upon any witness testimony and/or documentation that has not been filed with the Tribunal and delivered to the other parties by the production deadline.