Cole v. Ontario (Health and Long-Term Care), 2016 HRTO 852

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ian Cole, by his litigation guardian, Audrey Cole

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Health and Long-Term Care

Respondent

INTERIM DECISION

Adjudicator: Jennifer Scott Date: June 24, 2016 Citation: 2016 HRTO 852 Indexed as: Cole v. Ontario (Health and Long-Term Care)

WRITTEN SUBMISSIONS

Ian Cole, by his litigation guardian, Audrey Cole, Applicant

David Baker, Counsel

Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care, Respondent

Hart Schwartz, Counsel

introduction

1The hearing in this matter is commencing on July 5, 2016.

2On June 15, 2016, the applicant brought a production request seeking an order from the Tribunal requiring the respondent to produce data relating the number of catheters funded by Community Care Access Centres (CCACs) in Ontario. The applicant submits data on the provision of supplies provides an accurate base for the number of persons receiving catheterizations from CCAC-funded nurses.

3In his further submissions on the production request, the applicant states actual data exists on the number of people in Ontario receiving nursing services to perform catheterizations. The applicant’s counsel states that he was informed by Frank Wagner, a former manager of a CCAC, that this information can be easily downloaded by each CCAC’s Head of Business Intelligence. While the applicant has filed a will-say statement for Mr. Wagner, it does not address the data kept by CCACs.

4The respondent states the data requested from the applicant is not available. The respondent’s counsel advised the applicant and the Tribunal that he contacted the Director of Policy and Research of the Ontario Association of CCACs who advised an accurate count of patients that connects supplies to services is not possible at the provincial level. The respondent’s counsel also contacted his expert, John Hirdes, who advised the information sought by the applicant is not available.

5The applicant disputes the respondent’s position that this information does not exist. He relies on the data included in Figure 9 of John Hirdes’ report that provides information on the “average number of daily nurse visits among long-stay Ontario CCAC clients… with any urinary catheter use”. The applicant suggests this establishes that the information that he is seeking is available.

analysis

6The basic principle in determining a production request is whether the requested documents are “arguably relevant”. The applicant has the burden of demonstrating a nexus between the information or document sought and the issues in dispute before the Tribunal.

7The applicant requests data on the number of people in Ontario who receive catheterization services from a nurse through a CCAC. He seeks this information, in part, to challenge the anticipated evidence of the respondent’s witness, Dr. Radomski, set out in his letter of June 4, 2016, where he states that he has “never encountered a situation that required exclusively the expertise of a nurse or nurse practitioner to perform a catheterization”. (emphasis added)

8In his further submissions on the production request the applicant misstates Dr. Radomski’s anticipated evidence by asserting that “Dr. Radomski says nobody in his twenty five years of practice required to have a catheterization performed by a nurse”. This is not his evidence.

9There is no dispute between the parties that CCACs fund nursing services to provide catheterizations. One of the issues before me is whether Mr. Cole requires a nurse to perform all of his catheterizations.

10If the respondent was introducing evidence from Dr. Radomski to the effect that no one requires a nurse to perform a catheterization, evidence about the number of catheterizations performed by CCAC-funded nurses would be arguably relevant. The respondent is not introducing this evidence.

11The sheer number of catheterizations performed by CCAC-funded nurses, even if this data is available, would be of little use in me determining whether Mr. Cole requires all of his catheterizations to be performed by nurses. For example, what conclusions would I be able to draw from the fact that CCACs fund 1000 nursing visits to perform catheterizations? Would I be able to conclude from this fact that Mr. Cole requires a nurse for all of his catheterizations?

12In my view, the more relevant information would be the percentage of catheterizations performed by CCAC-funded nurses compared to the number of catheterizations performed by PSWs or DSWs overseen by nurses. There is no indication before me that this information exists.

13In the absence of hearing evidence regarding the data kept by CCACs, it is difficult, if not impossible, for me to make a production order. The parties disagree about what data is available. I am unable to accurately assess the data that is available without hearing evidence. While I can review Figure 9 to the Hirdes Report, I do not know whether I am interpreting this data correctly. Mr. Hirdes, in his report, states Figure 9 provides the average number of nursing visits per day for clients who use a urinary catheter of any type. It is unclear to me whether this chart describes the patient or the nursing services received by the patient. The other daily nursing visit charts in the Hirdes report describe the patient, not the service.

14If I order the production requested by the applicant, I anticipate receiving a response from the respondent stating this information is not available. I have no reason to question respondent’s counsel when he advised the Tribunal the information sought by the applicant is not available. While the applicant asserts this information is available by the “push of a button”, the applicant has not provided information from Mr. Wagner as to what data is available and how it is obtained.

15At the end of the day, I do not have sufficient information before me as to what data is kept by CCACs. It may well be that information is available concerning the percentage of catheterizations performed by nurses. That information is arguably relevant. The sheer number of catheterizations performed by nurses is not.

Order

16The applicant’s production request is denied at this time. The applicant is free to make a further production request once evidence is received regarding the data kept by CCACs on catheterizations and more specifically, who performs the catheterizations, if this information is available. As Mr. Wagner is schedule to testify, he will be able to speak to this issue.

17While I have ruled the sheer number of nursing visits to perform catheterizations is not arguably relevant, who typically performs catheterizations is arguably relevant. I expect the medical evidence being called in this matter can address this question.