Carla De Meneses Borba v. North York General Hospital, 2015 HRTO 638

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carla De Meneses Borba

Applicant

-and-

North York General Hospital

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: May 15, 2015

Citation: 2015 HRTO 638

Indexed as: Borba v. North York General Hospital

WRITTEN SUBMISSIONS

Carla De Meneses Borba, Applicant

Self-represented

North York General Hospital, Respondent

Scott Williams, Counsel

Introduction

1This Interim Decision addresses the applicant’s request that the respondent not be permitted to rely upon three documents included as part of its disclosure of arguably relevant documents.

2The hearing of this Application made under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, is scheduled for September 28, 2015. The deadline for the parties to disclose to each other any arguably relevant documents was May 1, 2015. By Request for Order During Proceedings (“RFOP”), the applicant requested the removal of three documents from the respondent’s arguably relevant documents. She submitted that the respondent breached her medical privacy and confidentiality by disclosing the documents to its counsel. She also argued that the documents are irrelevant to this proceeding. Finally, she noted that the respondent had included in the disclosed documents a page containing the confidential medical information of another of its patients.

3The respondent submitted that s. 41(1)(a) of the Personal Health Information Protection Act, 2004, S.O 2004, c. 3, Sched. A (“PHIPA”), permits it to disclose the applicant’s private health information for the purposes of a proceeding in which it is a party. With respect to the page containing personal health information of another patient, the respondent stated that this page was disclosed to the applicant in error. It has sent the applicant an amended version of the document and asked her to destroy the page containing the personal health information of the respondent’s other patient.

findings

4In Dewdney v. Toronto Transit Commission, 2012 HRTO 2212, the Tribunal reviewed relevant provisions of the 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, this provision applies to the three documents at issue here since the respondent is involved in this proceeding as a party and the disclosure was made for the purpose of defending itself in this proceeding.

6I also find that the documents are arguably relevant to the issues raised in this proceeding. Among other things, the applicant has stated that one of the physicians who has privileges to practice with the respondent hospital told her that she could contact him if she needed to see him again. Meanwhile, the respondent stated that the interaction between the applicant and the doctor in question was a one-time assessment that did not give rise to a continuing relationship. Although it is difficult to assess the relevance of this factual dispute at this early stage of proceedings, it may have some relevance to the Tribunal’s determination of whether the respondent’s actions were discriminatory.

7I also find that the records of the applicant’s efforts to contact the respondent are arguably relevant as these efforts establish a portion of the background to the discriminatory actions alleged by the applicant. For this reason, I find that the three documents at issue are arguably relevant in the sense that they may prove or disprove a fact or issue in dispute and/or provide an inferential link to support a line of defence: see McKay v. Toronto Police Service Board, 2009 HRTO 1220 at para. 13.

8Having said this, I find that the 8-page report that the respondent intends to rely upon contains personal health information of the applicant that is not relevant to these proceedings. The report contains extensive information relating to the applicant’s medical condition that is not relevant to the issues raised in the Application. This information should be redacted as it extends beyond what is arguably relevant to the nature of treatment relationship between the applicant and the physician named in the Application and the chronology of the applicant’s efforts to contact the respondent during the relevant period of time.

orders/DIRECTIONs

9For the reasons set out above, the applicant’s request is granted in part.

10If the respondent intends to file a copy of the 8-page report referred to above as part of its disclosure of documents to rely upon at the hearing, it must file a redacted version which contains only arguably relevant information relating the nature of the treatment relationship between the applicant and the physician named in the Application. It must redact any personal health information relating to the applicant’s medical condition that extends beyond what is necessary to prove or disprove the nature of the treatment relationship between the applicant and the physician named in the Application.