Wilson v. Bourbeau, 2009 CanLII 22559 (ON SCDC)

COURT FILE NO.: DV-778/08

DATE: 20090506

ONTARIO

SUPERIOR COURT OF JUSTICE

(DIVISIONAL COURT)

B E T W E E N:

JULIE WILSON

Self-represented, Moving Party

Applicant

• and -

SUSAN BOURBEAU, OCCUPATIONAL THERAPIST and COLLEGE OF OCCUPATIONAL THERAPISTS OF ONTARIO and HEALTH PROFESSIONS APPEAL AND REVIEW BOARD

Adam Dunlop, counsel on behalf of Susan Bourbeau

No one appearing for the College of Occupational Therapists of Ontario

David Jacobs, counsel on behalf of the Health Professions Appeal and Review Board

Respondents

HEARD: April 16, 2009

The Honourable Madam Justice L.L. Gauthier

OVERVIEW

1The Applicant, Julie Wilson, seeks judicial review of a decision of the Health Professions Appeal and Review Board (“the Board”), dated February 19, 2008.

2The Applicant seeks the following relief:

(a) an extension of time for the Applicant to deliver her Application Record and factum and to file a Certificate of Perfection in accordance with Rule 68 of the Rules of Civil Procedure;

(b) that portions of the Board’s Record of Proceeding in the application for judicial review be sealed and not form part of the public record, namely, page 3 of the OCF-22 document (Application for Approval of Assessment) and pages 26 and 27 of the DAC Assessment Report, dated December 6, 2005; and

(c) that the Board provide the Court and all parties with the Record of Proceeding by May 15, 2009.

3The Respondents do not oppose Wilson’s request for an extension of time.

4The request for a sealing order or redaction is opposed by Susan Bourbeau, Occupational Therapist (“Bourbeau”). It is not opposed by the College of Occupational Therapists of Ontario (“the College”). The Health Professions Appeal and Review Board argued against the relief sought, but has placed itself “in the hands of the Court”.

5Insofar as the request for delivery of the record of proceeding by May 15, 2009 is concerned, it is opposed by Bourbeau and the Board. The College has essentially taken no position.

FACTS

6The Applicant Wilson was injured in a motor vehicle accident in April 1997.

7In 2005, Bourbeau, an occupational therapist, conducted an assessment of Wilson pursuant to Wilson’s claim for accident benefits. The assessment proceeded by way of paper review, and was completed on December 6, 2005. Bourbeau concluded that Wilson’s request for a Home Accessibility Report was not reasonably necessary.

8Wilson filed a complaint against Bourbeau with the College in relation to the assessment on December 7, 2005. Wilson complained about Bourbeau’s having continued with the paper review assessment despite Wilson’s having withdrawn her consent to the assessment. Wilson also characterized the assessment as unfair as Bourbeau (a) had not considered all the relevant medical information, (b) failed to administer a cognitive assessment to determine Wilson’s cognitive limitations, and (c) had failed to consider Wilson’s cognitive limitations in the course of the assessment.

9The Complaints Committee of the College considered Wilson’s complaint. It found no cause to take further action. The Committee’s decision was released on March 6, 2006.

10On April 7, 2006, Wilson requested a review of the Complaints Committee’s decision by the Board.

11The Board requested from the College a record of the investigation and the documents and information upon which the decision was based.

12On January 8, 2007, the Board disclosed to the parties, the record of the Complaints Committee’s review of Wilson’s complaint. Before doing so, the Board exercised its discretion pursuant to section 32(3) of the Health Professions Procedural Code, being Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18. The following information was not disclosed as part of the record of the investigation:

(a) Bourbeau’s home address , which appeared on two pages of the Record;

(b) the home address of the Complaints Committee’s independent expert, which appeared on two pages of the Record;

(c) the independent expert’s telephone number , which appeared on two pages of the Record; and

(d) the independent expert’s electronic mail address, which appeared on one page of the Record.

13The Board’s decision and reasons with respect to its review of the Complaints Committee’s Decision were released on February 19, 2008. Its decision was as follows:

Pursuant to section 35(1) of the Code, the Board finds that the investigation in this complaint was adequate and the Committee’s decision reasonable. The Board therefore confirms the decision of the Committee to take no further action against the Respondent.

14Wilson seeks judicial review of the above decision by way of Notice of Application to Divisional Court for Judicial Review issued on March 18, 2007.

15Rule 68.04(1) of the Rules of Civil Procedure provides that an applicant for judicial review shall deliver an Application Record and a Factum within 30 days after the record of proceeding has been filed. Rule 68.05 provides for the filing of a Certificate of Perfection with the Application Record. Neither the Application Record nor the record of proceeding has been filed.

16The Registrar of the Divisional Court notified Wilson, on March 19, 2009, that her Application for Judicial Review would be dismissed for delay unless she delivered an application record and factum and filed a Certificate of Perfection within 10 days.

17Wilson is requesting an extension of time for the delivery of the Application Record, Factum, and Certificate of Perfection, until such time as she is in receipt of the record of proceeding before the Board. She has also requested that the Board be obligated to deliver the record of proceeding on or before May 15, 2009.

18By virtue of Section 10 of the Judicial Review Procedure Act, the Board is required to file with the Court “the record of the proceedings in which the decision was made”.

19The Board requests a ruling on Wilson’s motion for redaction or for a sealing order, before it files the record of proceeding. The Board is prepared to file the record of proceedings within 20 days of the ruling.

20On the consent of all the parties, I made an Order, on April 16, 2008, sealing the portions of the record of proceeding referred to above relating to Bourbeau’s home address, as well as the independent expert’s home address, telephone number, and electronic mail address.

21Wilson seeks to have redacted, or sealed, a portion of the record of the proceedings before the Board: (a) the OCF-22 form which was sent to and reviewed by Bourbeau, (b) page 26 of Bourbeau’s DAC Assessment Report, without redactions, and (c) page 27 of the DAC Assessment Report, as redacted to delete the information relating to Bourbeau’s home address, and the home address, telephone number and email address of the Board’s independent expert.

22The above three documents include Wilson’s name, her date of birth, her claim number, and medical information relating to the injuries she suffered in the motor vehicle accident in 1997.

ISSUE

23Should the three documents referred to in paragraph 22, or certain of the information contained in those documents, be treated as confidential, sealed, and not form part of the public record?

WILSON’S POSITION

24Wilson argues as follows:

25Relevance: The information Wilson seeks to have redacted or sealed is not relevant to her application for judicial review. None of the subject information was mentioned (a) in Wilson’s complaint to the College, (b) in Bourbeau’s response to the complaint, (c) in the College’s experts opinion report, (d) in the College’s investigation and/or decision, and (e) in the Board’s decision.

26Statutory Protection: The information sought to be redacted is personal, and that Wilson is entitled to the protection afforded by (a) the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31; (b) the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5; and (c) the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18.

27Apprehension of Bias: By redacting the information pertaining to Bourbeau and to the independent expert, and by not consenting to a redaction of Wilson’s personal information, the Board has demonstrated a reasonable apprehension of bias.

THE POSITION OF BOURBEAU AND THE BOARD

28Bourbeau and the Board argue as follows:

29Courts of Justice Act: Pursuant to Section 135 of the Courts of Justice Act, all court hearings are open to the public. Documents filed in a civil proceeding are presumptively public by virtue of section 137(1) of the Act. These Rules apply to an application for judicial review, just like they apply to civil trial matters. The onus is on Wilson to satisfy the test applicable to a request for a sealing order in accordance with Section 137(2) of the Courts of Justice Act. *What exactly is the position of the Board, though? That Wilson has not met the onus?

30Relevance: The information Wilson seeks to redact was before the Complaints Committee and also before the Board on its review. The medical information in particular was considered by the Complaints Committee and the Board. Wilson’s application for judicial review arises from her complaint regarding the DAC paper review assessment conducted by Bourbeau. The DAC Assessment Report and the OCF-22 formed part of the record of proceeding, are integral to the issues raised in the Assessment, and are clearly relevant to the issues to be addressed on the judicial review.

31Implied Waiver: Where a patient complains about his or her treatment by a health care professional, there is an implied waiver of confidentiality regarding relevant medical records, even where the patient does not consent to the disclosure of such records – Bongard v. Health Professions Board, 1997 17794 (ON SCDC), [1997] O.J. No. 1882 (Div. Ct.) at para. 6.

32Timing: Wilson did not, in the context of the Board’s review proceeding, request the redaction of any of the information contained in the record. The Board complied with the provisions of Section 32(2) of the Regulated Health Professions Act, 1991 by disclosing to Wilson and the other parties everything given to the Board from the Registrar of the College. Wilson could have, but did not, request that the Board not disclose the subject information. There is no reason to redact the information which will be relevant on the judicial review.

33Privacy Legislation: Neither the Freedom of Information and Protection of Privacy Act, nor the Personal Information Protection and Electronic Documents Act applies in this case.

ANALYSIS

34As set out in the Notice of Application, issued March 18, 2008, Wilson seeks judicial review of the decision of the Board, dated February 19, 2008, and the decision of the Complaints Committee of the College, dated March 6, 2006. The Application is brought pursuant to Section 2 of the Judicial Review Procedure Act.

35The Board must file the record of the proceedings in which it made its decision, for use on the judicial review pursuant to s. 10 of the Judicial Review Procedure Act.

36Sections 135 and 137 of the Courts of Justice Act apply to Wilson’s Application for Judicial Review.

135(1) Subject to subsection (2) and rules of court, all court hearings shall be open to the public.

137(2) A court may order that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record.

37The “open court” rule applies both to judicial proceedings which are part of a trial and those which are not - Nova Scotia (Attorney General) v. MacIntyre, 1982 14 (SCC), [1982] 1 S.C.R. 175.

38As the party who is seeking the Order pursuant to subsection 137(2), Wilson bears the burden of showing that the Order is necessary to prevent a real and substantial risk to her and also that the Order will minimally impair the interest of the public in open proceedings.

39Wilson submits that she is not comfortable with having her personal information including sensitive medical information available to the public.

40As a general rule, a person’s sensibilities, or discomfort must yield to the strong public policy in favour of openness. The discomfort expressed by Wilson is not a basis for removing the information from what will be the public record. As was stated in MacIntyre, supra, at 186-187, “curtailment of public accessibility can only be justified where there is present the need to protect social values of superordinate importance.” In other words, there must be some public interest in the question which justifies the order.

41The principles applicable on a confidentiality request were described as well in the headnote of Sierra Club of Canada v. Canada(Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522:

In light of the established link between open courts and freedom of expression, the fundamental question for a court to consider in an application for a confidentiality order is whether the right to freedom of expression should be compromised in the circumstances… A confidentiality order should only be granted when (1) such an order is necessary to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and (2) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings. Three important elements are subsumed under the first branch of the test. First, the risk must be real and substantial, well-grounded in evidence, posing a serious threat to the commercial interest in question. Second, the important commercial interest must be one which can be expressed in terms of a public interest in confidentiality, where there is a general principle at stake. Finally, the judge is required to consider not only whether reasonable alternatives are available to such an order but also to restrict the order as much as is reasonably possible while preserving the commercial interest in question.

42In Sierra Club, the Supreme Court also expressed that the interest cannot merely be the interest specific to the party requesting the order. Rather, the interest must be one that can be expressed in terms of a public interest in confidentiality.

43Wilson’s desire to protect her identity and what she describes as “sensitive medical information” does not raise a question of a serious risk to an important public interest. It is a personal view or preference on her part. With respect to Ms. Wilson, no important societal value is involved in her request for a sealing order.

44Wilson has not met the heavy burden imposed upon a moving party where a sealing order is requested. I adopt the following passage from the Court of Appeal for Ontario’s decision in Philion v. Lemieux Estate, 2007 ONCA 281:

29. Documents filed in a civil proceeding are normally available to the public, pursuant to s. 137(1) of the Courts of Justice Act, R.S.O. 1990, c. 43. Section 137(2) of the Courts of Justice Act gives the court the authority to make a sealing order. However, as Goudge J.A. reiterated in the recent case of CTV Television Inc. v. Ontario Superior Court of Justice (2002), 2002 41398 (ON CA), 59 O.R. (3d) 18, court records should be open to the public and public accessibility should be curtailed only with the greatest reluctance. Although these comments were made in the context of access to documents in a criminal proceeding, the same principles inform access to documents in a civil proceeding; public accessibility fosters public confidence in the integrity of the court system and is to be curtailed only in compelling circumstances.

30. It is up to the person seeking the sealing order to demonstrate a public interest that outweighs the public interest in openness. The appellant has failed to provide evidence to meet that burden…

I. Relevance

45I cannot accept Wilson’s submission that the information she seeks to have redacted is irrelevant to the Application for Judicial Review.

46The OFC-22 document (Application for Approval of Assessment) triggered the process of determining Wilson’s eligibility for a benefit from the insurer. It is precisely this document which was the subject of the paper review conducted by Bourbeau. Pages 26 and 27 of the DAC Assessment Report contain Bourbeau’s opinion regarding the reasonableness of Wilson’s request for a Home Accessibility Report.

47It is Bourbeau’s paper review that was the basis for Wilson’s complaint to the College. The subject documents were reviewed by the College. They form part of the record of the proceeding before the Board as well. They were considered by the Board in the context of their assessment of the reasonableness of the Complaints Committee’s decision.

48The subject documents and the information they contain are clearly relevant to the judicial review process. I agree with the Responding position as set out above at paragraph 30.

II. Apprehension of Bias

49When the Board disclosed the record of the Complaints Committee to the parties before the Board on January 8, 2007, it exercised its discretion pursuant to subsection 32(3) of the Health Professions Procedural Code.

50The Board’s decision to not disclose Bourbeau’s personal information and the independent expert has not been called into question save and except as it relates to Wilson’s request for the redaction of certain of her information. Put another way, the criticism is not of the Board’s exercise of its discretion under the Health Professions Procedural Code, but rather of its position in not consenting to Wilson’s motion for a sealing order.

51Wilson did not, at any time during the Board’s review process, request that any information in the record of proceeding be redacted or sealed, nor did she challenge the Board’s disclosure order. That the Board now seeks to file with the court the record of the proceedings without the redactions Wilson seeks, in compliance with its obligation, cannot in any way be interpreted as raising an apprehension of bias.

52The Board’s position with regard to Wilson’s motion does not suggest that the Board was in some way predisposed against Wilson in its review of the Complaints Committee’s decision.

53Wilson has not met the onus of demonstrating bias, nor the high threshold for a finding of a reasonable apprehension of bias.

III. Implied Waiver

54The case of Bongard v. Health Professions Board is authority for the proposition, put forward by Bourbeau and the Board, that where a person engages a complaints process (as did Wilson) by requesting the Board’s review of the Complaints Committee’s decision, there is an implied waiver of confidentiality regarding medical information. Wilson’s consent to the filing of the record of proceeding “as is” is not required.

55Wilson engaged the Board’s review process, and has engaged the judicial review process. In that context, she is, as Kiteley J. described in Re Phelan, [1999] O.J. No. 2465 (Sup. Ct.) at para. 24, a “volunteer”. Wilson, and her information, are before the court by choice. The implied waiver principle applies.

IV. Statutory Protection – P.I.P.E.D.A. and F.I.P.A.

56As indicated earlier in this ruling, the provisions of the Courts of Justice Act apply to the within application for judicial review. Neither the Freedom of Information and Protection of Privacy Act, nor the Personal Information Protection and Electronic Documents Act has any application in this context. The purposes of both of those statutes are not broad enough to encompass the Board’s review process or the review process pursuant to the Judicial Review Procedure Act.

CONCLUSION

57Wilson’s request for a sealing order or for redaction of the specified information is denied. Her request for an extension of time to comply with the provisions of Rule 68 of the Rules of Civil Procedure is granted. Her request for the record of proceeding to be filed by May 15, 2009, is denied.

58In accordance with the within reasons, the following Order is made:

1. The Health Professions Appeal and Review Board shall file the record of proceeding with the Court, within 20 days after the date of this Ruling;

2. Julie Wilson shall deliver her Application Record and Factum, and shall file a Certificate of Perfection within 45 days following the filing of the record of proceeding; and

3. Julie Wilson’s motion to seal a portion of the Health Professions Appeal and Review Board’s record of proceeding in the application for judicial review, and to have that portion not form part of the public record, is denied.

59In the event that the parties are unable to agree on the issue of costs, they are to communicate with the Trial Coordinator within twenty (20) days of this ruling, in order to fix a date and time to argue costs.

L. L. Gauthier

Superior Court Justice