COURT FILE NO.: 348/08

DATE: 20081104

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CARNWATH, ECHLIN & RAY JJ.

B E T W E E N:

TORONTO POLICE ASSOCIATION

Applicant

• and -

TORONTO POLICE SERVICES BOARD

Respondent

• and -

ATTORNEY GENERAL FOR ONTARIO

Intervenor

Beth Symes & Ben Millard, for the Applicant

Michael Hines, for the Respondent

Heather Mackay, for the Intervenor

HEARD AT TORONTO: October 3, 2008

RAY J.:

1The Toronto Police Association (“TPA”) seeks judicial review of the interim award of Arbitrator, Owen B. Shime, Q.C., dated June 16, 2008. The TPA alleges the Arbitrator lacked jurisdiction to order production of personal health information, including clinical records of Tracey Rudback, the grievor, from the Centre of Addiction and Mental Health (“CAMH”), pursuant to s. 35(5) of the Mental Health Act, R.S.O. 1990, s. M. 7 (“MHA”).

2The applicant’s position is that, pursuant to s. 35(9) of the MHA, only the Divisional Court can make such an order. No application under s. 35(9) of the MHA was before us.

3The respondent and the intervenor submit the Arbitrator had jurisdiction under s. 35(5) of the MHA to order productions for examination. Only if it was intended that the records be received in evidence at any hearing would an order from the Divisional Court be necessary under s. 35(9).

4The issues are:

1. What is the applicable standard of review of an arbitrator appointed under the PSA?

2. Was Arbitrator Shime correct in his interpretation of the MHA?

3. If correct, was his order, nevertheless, over-broad?

Background

5The TPSB filed a grievance on February 12, 2004 seeking re-payment of benefits paid to a former employee, Tracey Rudback, under the Collective Agreement made between it and the TPA.

6Ms. Rudback, while employed as a police officer, had made a claim for benefits for post-traumatic stress disorder arising from employment-related motor vehicle accidents in April, 2001 and December 11, 2001. A claims adjudicator denied her claim. She appealed.

7The Workplace Safety and Insurance Board (“the WSIB”), which was managing the claim, required Ms. Rudback to attend an assessment in March, 2003 at the CAMH. On April 15, 2003, based on that report, Ms. Rudback’s benefits were restored retroactively.

8On September 29, 2003, Ms. Rudback informed the WSIB that she had attended Teachers’ College from September, 2002 to May, 2003. She had also taken upgrading courses at York University from January to April, 2002. On November 4, 2003, a claims adjudicator denied her benefits retroactively.

9In March of 2007, Ms. Rudback’s final appeal was dismissed.

10In the meantime, on February 12, 2004, the TPSB filed a grievance under the Collective Agreement seeking re-payment of the benefits paid to Ms. Rudback in the amount of $116,636.26. Ms. Rudback made an assignment in bankruptcy on September 29, 2005. She was discharged from bankruptcy on September 13, 2006.

11The issue then arose as to whether the TPSB’s claim for re-payment had been extinguished by the bankruptcy. In order for the claim to survive, the TPSB would need to show that Ms. Rudback obtained the WSIB benefits by fraud or conduct akin to fraud.

12The parties agreed that the Arbitrator would determine whether the claim would survive the bankruptcy.

13In March 2003, Ms. Rudback underwent an assessment at the CAMH during the time that she was attending Teachers’ College. It was argued by the TPSB before the Arbitrator that during that assessment, she would have been asked questions that would have obliged Ms. Rudback to disclose that she was attending university. Those answers would have been recorded in the notes of the assessment.

14After submissions by the TPA and the TPSB, the Arbitrator ordered that the records be disclosed under s. 35(5) to him and to counsel for the TPSB without the need for an order under s. 35(9) of the MHA.

The Statutory Scheme

15The production of medical records in the possession of a psychiatric facility is governed by s. 35 of the MHA and, since November 1, 2004, also by the provisions of the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Schedule A (“PHIPA”).

16Section 35 of the MHA attempts to balance competing interests. The section recognizes that mental health records may be relevant to the adjudication of certain matters and, therefore, should be disclosed to the parties to those matters. As such, the section permits the disclosure of mental health records in various circumstances where they may be relevant to a matter before a court or administrative tribunal. However, the section also protects the privacy interests of individuals in their mental health records by setting out the instances in which the records may be disclosed and the procedures that must be followed prior to disclosure (see: R. v. Rankin, 1995 8928 (ON CA), [1995] O.J. No. 1381 (C.A.), at paras. 15-18; Ahmed v. Stefaniu, 2004 30093 (ON SC), [2004] O.J. 3854, at paras. 8-9; Everingham v. Ontario, 1992 7608 (ON SC), [1992] O.J. No. 166, at para. 20; R. v. LePage, 1994 7398 (ON SC), [1994] O.J. No. 2126, at paras. 8 and 11; and, R. v. Coon, 1991 11746 (ON SC), [1991] O.J. No. 3766, at paras. 14 and 17).

17Prior to 2004, s. 35 of the MHA contained a rebuttable presumption against disclosure in s. 35(2):

Except as provided in this section and section 36, no person shall disclose, transmit or examine a clinical record.

Section 35(2) prohibited both the examination of the record and its admission into evidence, save for the exceptions explicitly set out in ss. 35 and 36 (see: Ahmed v. Sefaniu, above, at paras. 8 and 9).

18However, s. 35(2) of the MHA was repealed by PHIPA. PHIPA is an Act which “establishes rules for the collection, use and disclosure of ‘personal health information’ about individuals” which recognizes the privacy and confidentiality interests in those records, while facilitating the effective provision of health care.

19PHIPA further amended s. 35 to remove its reference to “clinical records” in s. 35(5). The section now refers to “records of personal health information”. PHIPA defines “personal health information” as identifying information about an individual and expressly includes information relating to the physical and mental health of an individual, in both oral and recorded forms. The MHA incorporates the PHIPA definition by reference.

20As a result of these legislative changes, s. 35 of the MHA and PHIPA must be read together to determine the rules and procedures for the disclosure of personal health information in the custody and control of a psychiatric facility. If there is a conflict between the sections, the provisions of the MHA prevail.

21The PHIPA rules governing the disclosure of personal health information in legal proceedings are found in s. 41(1) of the Act. In contrast to the now-repealed s. 35(2) of the MHA, s. 41(1) of PHIPA is permissive:

Disclosures for proceedings

41(1) A health information custodian may disclose personal health information about an individual,

(a) subject to the requirements and restrictions, if any, that are prescribed, for the purpose of a proceeding or contemplated proceeding in which the custodian or the agent or former agent of the custodian is, or is expected to be, a party or witness, if the information relates to or is a matter in issue in the proceeding or contemplated proceeding;

(b) to a proposed litigation guardian or legal representative of the individual for the purpose of having the person appointed as such;

(c) to a litigation guardian or legal representative who is authorized under the Rules of Civil Procedure, or by a court order, to commence, defend or continue a proceeding on behalf of the individual or to represent the individual in a proceeding; or

(d) for the purpose of complying with,

(i) a summons, order or similar requirement issued in a proceeding by a person having jurisdiction to compel the production of information, or

(ii) a procedural rule that relates to the production of information in a proceeding.

22“Proceedings” in s. 41(1) are defined under s. 1 to include proceedings:

…held in, before or under the rules of a court, a tribunal, a commission, a justice of the peace, a coroner, a committee of a College within the meaning of the Regulated Health Professions Act, 1991, a committee of the Board of Regents continued under the Drugless Practitioners Act, a committee of the Ontario College of Social Workers and Social Service Workers under the Social Work and Social Services Work Act, 1998, an arbitrator or mediator.

23Consequently, there is no longer a rebuttable presumption against the disclosure of mental health records in the custody and control of a psychiatric facility. Instead, s. 35 of the MHA and s. 41(1) of PHIPA, when read together, permit the disclosure of personal health information for various purposes in accordance with law.

24While PHIPA deals with the disclosure of personal health information generally, s. 35 of the MHA establishes special procedures for the disclosure of patient records compiled in psychiatric facilities. The Act establishes separate processes for the disclosure of records pursuant to summons or order, and for the disclosure of information in a proceeding.

25Subsections 35(5), (6) and (7) set out the process for disclosure of mental health records pursuant to a summons, order, direction, notice or similar requirement that are relevant to matters at issue or potentially at issue in court or administrative hearings:

Disclosure pursuant to summons

35(5) Subject to subsections (6) and (7), the officer in charge or a person designated in writing by the officer in charge shall disclose, transmit or permit the examination of a record of personal health information pursuant to a summons, order, direction, notice or similar requirement in respect of a matter in issue or that may be in issue in a court of competent jurisdiction or under any Act.

Statement by attending physician

(6) Where the disclosure, transmittal or examination of a record of personal health information is required by a summons, order, direction, notice or similar requirement in respect of a matter in issue or that may be in issue in a court of competent jurisdiction or under any Act and the attending physician states in writing that he or she is of the opinion that the disclosure, transmittal or examination of the record of personal health information or of a specified part of the record of personal health information,

(a) is likely to result in harm to the treatment or recovery of the patient; or

(b) is likely to result in,

(i) injury to the mental condition of a third person, or

(ii) bodily harm to a third person,

no person shall comply with the requirement with respect to the record of personal health information or the part of the record of personal health information specified by the attending physician except under an order made by the court or body before which the matter is or may be in issue after a hearing from which the public is excluded and that is held on notice to the attending physician.

Matters to be considered by court or body

(7) On a hearing under subsection (6), the court or body shall consider whether or not the disclosure, transmittal or examination of the record of personal health information or the part of the record of personal health information specified by the attending physician,

(a) is likely to result in harm to the treatment or recovery of the patient; or

(b) is likely to result in,

(i) injury to the mental condition of a third person, or

(ii) bodily harm to a third person,

and for the purpose the court or body may examine the record of personal health information, and, if satisfied that such a result is likely, the court or body shall not order the disclosure, transmittal or examination unless satisfied that to do so is essential in the interests of justice.

26When read together, the wording of ss. 35(5), (6) and (7) indicates that the officer in charge of a psychiatric facility or his or her delegate must disclose records in the facility’s possession which are relevant or potentially relevant to the matters at issue in a hearing, pursuant to a summons, or other order of a court or tribunal.

27This mandatory disclosure is subject to only two limited exceptions which are set out in s. 35(6): where the attending physician of the individual whose records are sought indicates in writing (by executing a Form 15) that it is his or her opinion that the disclosure of the record will likely harm the treatment or recovery of the patient, or will likely result in harm (mental or physical) to a third person.

28Where a Form 15 is executed, an in camera hearing must be held before the court or body in which the matter is or may be in issue, on notice to the attending physician. On such a hearing, the court or body shall consider whether the harm specified by the attending physician is likely to occur. If it is determined such a result is likely, the court or body must then determine whether the disclosure of the record is essential in the interests of justice despite the likely harm. It appears that no Form 15 was executed by Ms. Rudback’s attending physician in this case (see: MHA, s. 35(7))

29Section 35(9) of the MHA sets out the process for the disclosure of information in a proceeding in any court or before any body:

(9) No person shall disclose in a proceeding in any court or before any body any information in respect of a patient obtained in the course of assessing or treating the patient, or in the course of assisting in his or her assessment or treatment, or in the course of employment in the psychiatric facility, except,

(a) where the patient is mentally capable within the meaning of the Personal Health Information Protection Act, 2004, with the patient’s consent;

(b) where the patient is not mentally capable, with the consent of the patient’s substitute decision-maker within the meaning of the Personal Health Information Protection Act, 2004, or

(c) where the court or, in the case of a proceeding not before a court, the Divisional Court determines, after a hearing from which the public is excluded and that is held on notice to the patient or, if the patient is not mentally capable, the patient’s substitute decision-maker referred to in clause (b), that the disclosure is essential in the interests of justice.

30In contrast to the mandatory disclosure required by s. 35(5), s. 35(9) prohibits a person from disclosing any information obtained about a patient in the course of assessing or treating the patient in a proceeding, except on consent or where the court, or in the case of a proceeding not before a court, the Divisional Court, determines after an in camera hearing that the disclosure is essential in the interests of justice (see: MHA, s. 35(9)).

The Arbitrator’s Decision

31After reviewing the statutory scheme, the Arbitrator summarized the parties’ submissions. The applicant before us argued that since the matter was “a proceeding not before a court”, within the meaning of s. 35(9), the TPSB was required to apply to the Divisional Court for the production order sought in order to have that Court determine whether “disclosure is essential in the interests of justice”. It was for the Divisional Court to balance the competing interests of patient privacy and the interests of justice, and the MHA specifically precluded a board of arbitration from making that determination.

32The TPSB argued that s. 35(5) requires the disclosure, transmittal or examination of a record of personal health information “pursuant to a Summons, Order, Direction, Notice or other similar requirement in respect of a matter in issue or that may be an issue in a court of competent jurisdiction before any Act”. There is no requirement to go to the Divisional Court for a pre-hearing production order. The TPSB urged that s. 35(9) refers to a “proceeding in any court or before any body”, while there is no such reference in s. 35(5). Accordingly, s. 35(5) was capable of standing on its own thereby applying to pre-trial matters only, and there is no overriding impact of s. 35(9) on pre-hearing issues. Moreover, it was asserted, the privacy interests of Ms. Rudback were capable of being protected by a limited order permitting counsel alone to have access to the record of personal health information.

33The Arbitrator went on to point out what appeared to be a patent contradiction in the legislation. On the one hand, s. 35(5) permitted disclosure of a patient’s health record in specified legal circumstances, subject only to ss. 35(6) and (7), which are provisions that deal with the situation where there is a specific objection by the attending physicians. It is common ground in the matter before us there is no objection by the attending physician. Accordingly, ss. 35(6) and (7) need not be considered. On the other hand, s. 35(9) prohibited disclosure in proceedings before a court or any other body and only permits such disclosure where a court, or the Divisional Court in the case of a proceeding not before a court, determines after a hearing in which the public is excluded that disclosure is essential in the interests of justice.

34The Arbitrator then considered the jurisprudence on the question. He referred to R. v. Coon (1992), 1991 11746 (ON SC), 74 C.C.C. (3d) 146 (Ont. Gen. Div.), a case where the accused had subpoenaed the clinical records of the complainant. Then J., referring to the relevant considerations and competing interests between the right to privacy and the interests of justice, stated:

…in circumstances where there is no challenge by the attending physician to the disclosure of the clinical record of a patient in a psychiatric facility as contemplated by s. 29(5) [now s. 35(5) of The Mental Health Act] or in circumstances where the challenge has been unsuccessful, the disclosure of those records is governed by s. 29(9)(c) [now s. 35(9)(c)] of The Mental Health Act such that disclosure will also be made only if the disclosure is essential in the interests of justice.

(R. v. Coon, above, at para. 30)

Then J. concluded that s. 29(5) was subject to s. 29(9)(c).

35The Arbitrator then turned to consider two other cases, Everingham v. Ontario, above, and R. v. LePage, above. Those cases suggested to the Arbitrator that s. 35(9) does not apply to pre-trial production of clinical records and are therefore distinguishable from R. v. Coon, above. The Arbitrator found that the distinction was confirmed by Cullity J. in Ahmed v. Stefaniu, above, where, referring to Everingham and LePage, he stated:

However, while Then J. did not draw any distinction between pre-trial examination and disclosure in evidence, there are indications in the reasons of Borins J. [in Everingham] that he would interpret section 35(9) as prohibiting only the latter. At page 473 of his reasons he stated that the section ‘clearly relates to testimonial disclosure before a court, which would include disclosure by affidavit as well as viva voce testimony’. In a subsequent passage, at page 474, that follows immediately after the passage I have quoted above, he concluded:

Therefore, Dr. Jones, while he may have been entitled to examine the records where compliance with ss. (5) and (6) has taken place, must still face the supervisory role of the court required by ss. (9)(c).

In LePage, at para. 14, Howden, J. also doubted whether section 35(9)(c) applied to a pre-trial examination of records that, on the facts before him, had been transmitted to the court pursuant to section 35(5). He stated:

I am satisfied that subsec. (9)(c) is properly used for this purpose. It is really addressing disclosure by a witness of information (documentary or otherwise) obtained in the course of assessment or employment at a psychiatric facility and not pre-trial access by other parties to records already in the court’s possession.

36The Arbitrator noted that under s. 35(5), where records are “turned over”, they could not help but be disclosed, whether to an officer of the court or to the opposing party seeking production, thereby violating the privacy interest of the protected person. Although s. 35(5) was made subject to ss. 35(6) and (7), it was not made subject to s. 35(9). The explicit mention of ss. 35(6) and (7) in s. 35(5) and the failure to mention s. 35(9) suggested to the Arbitrator that s. 35(9) had no application to s. 35(5) and only applied, as both Borins J. and Howden J. suggested, to testimony in court and not to pre-trial production.

37The Arbitrator noted the language of s. 35(5) differs from s. 35(9)(c) with respect to the use of context where disclosure may or may not be made. Section 35(5) compels disclosure in response to a summons, etc. in respect of a matter in issue or that may be in issue. The scope and context for disclosure was both unconditional and considerably broader than the scope and context of s. 35(9)(c) which appears to limit disclosure where a matter is in court or where a proceeding is not before a court. The Arbitrator found that a careful reading of both sections suggested that parties are entitled to obtain disclosure of personal health information for the purpose of dealing with the issues in the matter or the issues that may arise. Those same parties are restricted from using that information in court, or in a proceeding not before a court unless there is a prior determination that such disclosure is essential in the interests of justice.

38The Arbitrator concluded that the difference in language in the two sections permits records of personal health information to be disclosed for the purposes of pre-trial production with respect to the matters in issue. He concluded that s. 35(9) did not apply to pre-hearing matters and, more particularly, to a request for production of personal health information. He found that a Board of Arbitration had jurisdiction to order pre-trial production of personal health information subject to determining its relevancy.

39After reviewing the relevancy of the material, the Arbitrator’s interim award ordered that “all psychiatric records and materials held by CAMH be disclosed and transmitted to Mr. M. Hines, Counsel for the Board, to be examined by him only, for the purposes of this arbitration and not to be communicated to any other person except by leave”.

1. What is the applicable standard of review of an arbitrator appointed under the PSA?

40The standard of review is correctness since the issue involves a matter of interpretation of general law not within the particular expertise, knowledge or experience of an arbitrator appointed under the Police Service Act, R.S.O. 1990, c.P. 15 (see: Dunsmuir v. New Brunswick, [2008] 1 S.C.C. 9, at paras. 59-61; and Lévis (City) v. Fraternité des policiers de Lévis Inc., 2007 SCC 14, [2007] 1 S.C.R. 591, at paras. 21-23).

2. Was Arbitrator Shime correct in his interpretation of the MHA?

41We conclude that the Arbitrator was correct in his interpretation of s. 35 of the MHA. A careful reading of the sections indicates that they are intended to apply to different stages of a proceeding. They are not to be read together, and are not applicable to each other, contrary to the applicant’s submissions.

42Although s. 35(5) is explicitly made subject to ss. 35(6) and (7), it is not explicitly made subject to s. 35(9). The failure to mention s. 35(9) in relation to s. 35(5) suggests s. 35(9) has no application to s. 35(5).

43In addition, the legislative scheme suggests that the determination of pre-hearing production issues is within the jurisdiction of both courts and administrative tribunals as ss. 35(6) and (7) specifically give courts and administrative bodies the power to determine whether pre-hearing production is required in the interests of justice, even where a Form 15 is executed. There is nothing in s. 35 to suggest that a Divisional Court hearing is required every time mental health records are sought in an administrative hearing by means of a summons or order of a pre-hearing nature. Section 35 can only be read coherently when ss. 35(5) and 35(9) are read as relating to separate and distinct phases of a court or administrative hearing.

44The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament (see: Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27). There is a presumption that all parts of a statute are to carry legal significance and that no part of a statute should be interpreted in a way that renders another part of the statute redundant.

45As noted in the Arbitrator’s reasons, s. 35 of the MHA has been subject to considerable judicial analysis, the results of which have not been entirely consistent. It would be a mistake to rely too heavily on the jurisprudence to provide assistance in interpreting the legislative frame-work in 2008 since many of the cases were decided prior to the amendments of the legislation brought about by PHIPA.

46Some general principles do emerge from the jurisprudence that are helpful in determining the process for the production of mental health records under the new legislative frame-work. When read as a whole, the jurisprudence regarding s. 35 indicates the following:

• Courts have generally found that s. 35(5) applies to pre-hearing disclosure of records, while s. 35(9) applies to testimony, by affidavit or viva voce evidence in a proceeding. As such, courts have found that s. 35(5) is concerned with pre-hearing production, while s. 35(9) is concerned with admissibility at the hearing (see: R. v. LePage, above, at para. 14; Everingham v. Ontario, above, at paras. 15 and 16; and, Ahmed v. Stefaniu, above, para. 39).
• Pursuant to s. 35(5), at the pre-hearing stage, a party can serve a summons for the production of an individual’s records on the officer in charge of a mental health facility or his/her delegate (see: Everingham v. Ontario, above, at para. 14).
• The officer in charge or his/her delegate must then take positive steps to find out if the attending physician will be issuing a Form 15 (see: Everingham v. Ontario, above, at para. 13).
• The summons should request that production be made to the decision-maker, whether it is a court or some other administrative body, and not to the party who has served the summons (see: R. v. LePage, above, at paras. 12-16; Everingham v. Ontario, above, at para. 16).
• Where there is no Form 15 (as in this case), the decision-maker may examine the record to determine whether any or all of the record is relevant to a matter at issue or potential issue in the proceeding before ordering production (see: Everingham v. Ontario, above, at para. 16; R. v. LePage, above, at paras. 11-12). The privacy and confidentiality of mental health records should also be considered by the decision-maker prior to ordering production (see: Ahmed v. Stefaniu, above, at para. 11).
• The determination of whether the produced record will be admitted into evidence in the proceeding is then made pursuant to s. 35(9). If the proceeding is before a court, the court may make the determination, but if the proceeding is before another body, the Divisional Court will make the determination.

47If R. v. Coon is authority for the proposition that every request for disclosure under s. 35(5) must be dealt with in accordance with the provisions of s. 35(9), we respectfully disagree with that conclusion.

3. If correct, was his order, nevertheless, over-broad?

48All parties submit that the Arbitrator’s award is over-broad and we agree. We would limit production of Ms. Rudback’s clinical records to documents created by CAMH in the course of the March 2003 CAMH assessment and in the course of responding to the WSIB’s inquiries in the months of September and October 2003. We would further limit the initial disclosure to the Arbitrator until such time as he has considered both the relevancy of the material & the privacy and confidentiality matters raised by the contents of the material.

49In general terms, we agree with the Attorney General that a useful approach to requests for production, pursuant to s. 35(5), where there has been no Form 15 executed, would take into account the following:

1. When served with a subpoena, order or direction for mental health records, the officer in charge of a psychiatric facility must disclose all potentially relevant records to the decision-maker presiding at the hearing for which the records are sought.
2. The decision-maker will then determine whether the records should be disclosed to the parties. The decision-maker should examine the records at issue to make this determination. The decision-maker must consider whether the records requested are relevant to a matter at issue or potentially at issue in the proceeding, and should also be mindful of the privacy and confidentiality interests in such records when making this determination. It is not necessary at this pre-hearing stage, for a decision-maker to apply the ‘essential in the interests of justice test’ found elsewhere in section 35, as a plain reading of the section indicates that test is not to be applied to pre-hearing matters in the absence of a Form 15.
3. The decision-maker will then make an order with respect to production of the records.

50An order will go amending paragraph (c) on page 20 of the Arbitrator’s reasons so that it reads as follows:

(c) That all psychiatric records and materials created by CAMH in the course of the March 2003 CAMH assessment of Ms. Rudback and in the course of responding to the WSIB’s inquiries in the months of September and October 2003 in relation to Ms. Rudback be disclosed and transmitted to the Arbitrator, Owen B. Shime, Q.C., to be examined by him for the purposes of giving effect to section 35(5) of the MHA. Ms. Rudback shall provide the necessary consents to the officer in charge at CAMH to permit the disclosure transmission and examination of these records by Mr. Shime for his determination of their further use in accordance with section 35(5) of the MHA.

51The intervenor is not seeking costs. The TPSB and the TPA have agreed that costs be fixed at $7,500, all inclusive, payable by the unsuccessful party. There shall be costs to the TPSB, payable by the TPA, of $7,500, inclusive of fees, disbursements and GST, payable on a partial indemnity basis within thirty days.