Balasuriya v. College of Physicians and Surgeons of Ontario
Ontario Reports
Ontario Superior Court of Justice
Divisional Court, Himel J.
December 28, 2018
144 O.R. (3d) 314 | 2018 ONSC 7743
Case Summary
Administrative law — Production of documents — College initiating disciplinary proceedings against doctor after former patient accused him of sexual abuse — Doctor wishing to use complainant's psychiatric records to dispute her credibility and reliability — Section 35(9) of Mental Health Act applying to both psychiatric records which doctor received as complainant's treating physician and records which post-dated their doctor-patient relationship — Disclosure of records being essential in interests of justice — Disclosure ordered — Mental Health Act, R.S.O. 1990, c. M.7, s. 35(9).
The respondent college commenced disciplinary proceedings against the applicant doctor after S, a former patient of the applicant, reported that he had sexually abused her. The applicant wished to use S's psychiatric records to dispute her credibility and reliability. Those records, some of which the applicant had received as S's treating physician and some of which post-dated the doctor-patient relationship, indicated that S had a borderline personality disorder, a history of childhood sexual abuse and a substance abuse disorder and that she exhibited impulsive anger in certain situations. The applicant intended to rely on the expert opinion of a forensic psychiatrist who would testify for the defence regarding the impact of S's psychiatric condition on her credibility and reliability. He brought an application [page315] for a declaration that he was entitled to use the records that he received when he was S's treating physician under the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sch. A and for an order under s. 35(9) of the Mental Health Act for disclosure of the psychiatric records that post-dated the doctor-patient relationship.
Held, the application should be allowed.
The applicant was not entitled to the declaration that he sought in relation to the Personal Health Information Protection Act. Section 35(9) of the Mental Health Act applied to both sets of records. Disclosure of the information contained in the records could be ordered under s. 35(9) only if the applicant established that disclosure was "essential in the interests of justice". On an application under s. 35(9), the court must consider the following factors: (1) relevance of the records to the proceedings; (2) the need to protect the right of the party about whom the complaints are brought to make full answer and defence while not permitting a fishing expedition; (3) the need to consider the privacy interests of the complainant or witness; and (4) limiting the disclosure of highly sensitive and confidential records to only certain circumstances. The records sought in this case were relevant in the sense that there was a reasonable possibility that they would be useful to the applicant in making full answer and defence to the allegations. Considering that the applicant faced the potential loss of his livelihood, this was a sufficiently serious matter to warrant intrusion. While disclosure of the records may be an invasion of S's privacy, access to highly sensitive and confidential information could be limited through the ordering of a publication ban. It was essential in the interests of justice to order disclosure of the records.
Ahmed v. Stefaniu (2004), 2004 30093 (ON SC), 72 O.R. (3d) 590, [2004] O.J. No. 3854 (S.C.J.); Laity v. College of Physicians and Surgeons of Ontario, [2018] O.J. No. 3969, 2018 ONSC 4557 (Div. Ct.); Michener Institute for Applied Health Sciences v. Musa, 2009 CarswellOnt 6016 (Div. Ct.); R. v. Coon, 1991 11746 (ON SC), [1991] O.J. No. 3766, 74 C.C.C. (3d) 146, 16 W.C.B. (2d) 632 (Gen. Div.); R. v. Mills, [1999] 3 S.C.R. 668, [1999] S.C.J. No. 68, 180 D.L.R. (4th) 1, 248 N.R. 101, [2000] 2 W.W.R. 180, J.E. 99-2312, 75 Alta. L.R. (3d) 1, 244 A.R. 201, 139 C.C.C. (3d) 321, 28 C.R. (5th) 207, 69 C.R.R. (2d) 1, 1999 637, 44 W.C.B. (2d) 124, 1999 CCAN Â10,064; Toronto Police Assn. v. Toronto Police Services Board, 2008 56714 (ON SCDC), [2008] O.J. No. 4380, 89 Admin. L.R. (4th) 147, 243 O.A.C. 104, 178 L.A.C. (4th) 193, 172 A.C.W.S. (3d) 285 (Div. Ct.), consd
Other cases referred to
Billing (Re), [2017] O.C.P.S.D. No. 27, 2017 ONCPSD 30; Children's Aid Society of Niagara Region v. A. (E.), [1980] O.J. No. 2866, 1980 1535, 7 A.C.W.S. (2d) 87 (Prov. Ct.); College of Physicians and Surgeons of Ontario v. Au, 2005 2037 (ON SCDC), [2005] O.J. No. 234, 194 O.A.C. 145, 136 A.C.W.S. (3d) 760 (Div. Ct.); College of Physicians and Surgeons of Ontario v. McIntyre, [2017] O.J. No. 193, 2017 ONSC 116, 2017 CHFL Â15,790 (Div. Ct.); College of Physicians and Surgeons of Ontario v. Mrozek (January 25, 2017); Latulippe v. Quebec (Tribunal des Professions), 1998 12943, EYB 1998-06604 (Que. C.A.); Lee v. College of Physicians and Surgeons of Ontario (August 23, 2017); M. (A.) v. Ryan, [1997] 1 S.C.R. 157, [1997] S.C.J. No. 13, 143 D.L.R. (4th) 1, 207 N.R. 81, [1997] 4 W.W.R. 1, J.E. 97-408, 85 B.C.A.C. 81, 29 B.C.L.R. (3d) 133, 34 C.C.L.T. (2d) 1, 8 C.P.C. (4th) 1, 4 C.R. (5th) 220, 42 C.R.R. (2d) 37, 1997 403, 68 A.C.W.S. (3d) 835; Nelson v. Livermore, [2017] O.J. No. 4691, 2017 ONCA 712, 390 C.R.R. (2d) 232, 283 A.C.W.S. (3d) 413, 417 D.L.R. (4th) 133; Penetanguishene Mental Health Centre v. Stock, 1994 7506 (ON SC), [1994] O.J. No. 1545, 116 D.L.R. (4th) 550, 49 A.C.W.S. (3d) 158, 24 W.C.B. (2d) 282 (Gen. Div.); R. v. Bernardo, 1997 2240 (ON CA), [1997] O.J. No. 5091, 105 O.A.C. 244, 121 C.C.C. (3d) 123, 12 C.R. (5th) 310, 37 W.C.B. (2d) 34 (C.A.); R. v. Chaplin, 1995 126 (SCC), [1995] 1 S.C.R. 727, [1994] S.C.J. No. 89, 178 N.R. 118, [page316] J.E. 95-459, 27 Alta. L.R. (3d) 1, 162 A.R. 272, 96 C.C.C. (3d) 225, 36 C.R. (4th) 201, 26 C.R.R. (2d) 189, 26 W.C.B. (2d) 197; R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223, [1993] S.C.J. No. 119, 108 D.L.R. (4th) 47, 159 N.R. 81, J.E. 83-1778, 66 O.A.C. 161, 85 C.C.C. (3d) 193, 25 C.R. (4th) 1, 21 W.C.B. (2d) 184; R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, 130 D.L.R. (4th) 235, 191 N.R. 1, [1996] 2 W.W.R. 153, J.E. 96-64, 68 B.C.A.C. 1, 103 C.C.C. (3d) 1, 44 C.R. (4th) 1, 33 C.R.R. (2d) 1, 29 W.C.B. (2d) 152, EYB 1995-67073; R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126, 106 D.L.R. (3d) 212, 30 N.R. 181, 50 C.C.C. (2d) 193, 14 C.R. (3d) 22, 17 C.R. (3d) 34, 4 W.C.B. 171; Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, [2012] 3 S.C.R. 489, [2012] S.C.J. No. 68, 2012 SCC 68, 437 N.R. 124, 2012EXP-4364, J.E. 2012-2311, EYB 2012-215249, 352 D.L.R. (4th) 433, 106 C.P.R. (4th) 241, 221 A.C.W.S. (3d) 315
Statutes referred to
Child Welfare Act, 1978, S.O. 1978, c. 85 [rep.]
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 21(2) (c)
Criminal Code, R.S.C. 1985, c. C-46, ss. 278, 278.3(4), 278.5(2), 684(1)
Mental Health Act, R.S.O. 1990, c. M.7, ss. 34.1, 35 [as am.], (2) [as am.], (5) [as am.], (7) [as am.], (9) [as am.], (c), (10) [as am.], (11) [as am.], 80.2
Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sch. A [as am.], ss. 29, 37(1) [as am.], 41, (1), (a)
Regulated Health Professions Act, 1991, S.O. 1991, c. 18, Sch. 2, ss. 42.2, (3), 85.1
Authorities referred to
Sullivan, Ruth, Sullivan on the Construction of Statutes, 6th ed. (Markham, Ont.: LexisNexis, 2014)
APPLICATION for the disclosure of psychiatric records.
Jenny P. Stephenson, Adam Goldenberg and Jennifer A. McKendry, for applicant Dr. Balasuriya.
Elizabeth Widner and Kirk Maijala, for respondent.
[1] HIMEL J.: — This application arises from disciplinary proceedings taken by the College of Physicians and Surgeons (the "College") involving allegations that Dr. Rajiv Balasuriya sexually abused a patient ("K.S.") while she was under his care and that he is guilty of disgraceful, dishonourable and unprofessional conduct. He denies the allegations and brought a motion before the Discipline Committee for production of records ("Records") concerning his former patient from a third party, the Niagara Health System (the "hospital"), a psychiatric facility where she was assessed and treated. He wishes to rely on information in those Records regarding the former patient's psychiatric condition to dispute her credibility and reliability. Dr. Balasuriya has brought an application for a declaration that he is able to utilize certain of the Records under the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sch. A ("PHIPA"). He also seeks an order for disclosure under s. 35(9)(c) of the Mental Health Act, R.S.O. 1990, c. M.7 (the "MHA"). The complainant in the matter [page317] before the College was served with notice of these applications but did not participate. Counsel for the College advises that she does not consent to the disclosure of the Records.
[2] Although applications are heard by a panel of the Divisional Court, the Associate Chief Justice of the Superior Court of Justice authorized that this matter be heard by a single judge pursuant to s. 21(2)(c) of the Courts of Justice Act, R.S.O. 1990, c. C.43. Because of the provisions in s. 35(9), this is a matter from which the public is excluded and a publication ban is so ordered. The following are my reasons for decision on this application.
Factual Background
Nature of the orders requested
[3] Dr. Balasuriya takes the position that he does not require an order under s. 35(9)(c) to disclose information contained in the Records concerning the patient as they pertain to a time when he was her family physician. He seeks an order, however, regarding the Records that relate to when she was no longer his patient.
The allegations against Dr. Balasuriya
[4] Dr. Balasuriya is a family physician who treated K.S. from March 29, 2012 until December 28, 2015. On October 29, 2015, Dr. Balasuriya wrote her a letter terminating the relationship and advising her that two months from the date of its receipt, he would no longer be responsible for her care. On November 27, 2015, K.S. telephoned and asked if he could take her on again and he refused. On January 17, 2016, K.S. was admitted to the hospital with acute depression and suicidal ideation. On January 21, 2016, she disclosed to a hospital psychiatrist that she had been sexually abused by Dr. Balasuriya. In accordance with s. 85.1 of the Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 ("the Code"), the psychiatrist made a report to the College as required under the Code.
[5] As her physician, Dr. Balasuriya received clinical notes and records pertaining to psychiatric treatment received by K.S. in the hospital. The hospital is a designated psychiatric facility pursuant to s. 80.2 of the MHA and, therefore, the notes and records fall into the category of documents that are covered by the Act. The mental health records in question are in two categories: (1) the 2013-2015 Records, which contain information on assessment and treatment of K.S. between November 2, 2013 and December 28, 2015, when she was Dr. Balasuriya's patient, and (2) the 2016 Records, which pertain to her admission between January 17 and [page318] 25, 2016 when she was no longer the applicant's patient (collectively, the "Records"). The Records were sent in error by the hospital to him and without the consent of K.S.
[6] The College conducted an investigation, spoke with the complainant, K.S., obtained the patient chart from Dr. Balasuriya, and gave Dr. Balasuriya an opportunity to respond. The College referred the allegations of sexual abuse and disgraceful, dishonourable or unprofessional conduct to the Discipline Committee.
[7] The College submits that in January 2016, when she was admitted to hospital and receiving treatment, K.S. made allegations that Dr. Balasuriya had sexually abused her while she was his patient, allegations which he denies. She alleges that approximately three years earlier, they had a sexual encounter at his home when she was working as an escort and was dispatched to his address which, unknown to her, was Dr. Balasuriya's residence. She says that he kissed her and digitally penetrated her vagina. According to K.S., she performed oral sex in his office on him in exchange for a prescription of a controlled medication and other benefits. She also alleges that he made inappropriate sexual comments to her.
[8] In his materials, Dr. Balasuriya admits that he used escort services but that he did not know that his patient worked for one of the services and says he had no way of knowing that the service would send his patient to his residence. He says that when she arrived, he was surprised but that he invited her into his house, they spoke and that nothing inappropriate occurred. He says he decided to discuss the situation with her and provide her with the option of a referral to another family physician. He says that they had this conversation the next time she came to his office and she indicated that she wanted to remain his patient.
[9] However, Dr. Balasuriya says that K.S. began to request favours including prescriptions of narcotics and letters about her parenting ability, which he refused. He claims that this led to K.S. becoming angry and acting out. After a hospitalization for a drug overdose, he says she tried to kiss him in his office and touched his genitals. He asked her to leave the office and said that he could no longer continue as her physician. He terminated K.S. as his patient in October 2015 and provided her with names of other physicians. Three months later, she was admitted to the hospital with psychiatric symptoms. During the hospitalization, she disclosed allegations of sexual misconduct by the physician. The allegations were reported to the College, which charged him with sexual abuse of a patient and with disgraceful, dishonourable or unprofessional conduct. [page319]
Why does the applicant seek to rely on the Records?
[10] Dr. Balasuriya denies all the allegations and, in his defence, seeks to rely on information about his former patient's psychiatric condition to dispute her credibility and reliability. The Records in question are related to treatment received between November 2, 2013 and December 28, 2015, while she was Dr. Balasuriya's patient and Records concerning an admission to the hospital between January 17 and 25, 2016 after she was no longer Dr. Balasuriya's patient. The Records make reference to a diagnosed mental disorder at the time she was Dr. Balasuriya's patient, including borderline personality disorder. Both sets of Records indicate that K.S. suffered from diagnosed mental disorders that included a diagnosis of borderline personality disorder when she was a patient of Dr. Balasuriya.
[11] The 2013-2015 Records also discuss K.S.'s history of childhood abuse including sexual abuse and the impact on her development, the range of medications she was given to treat her symptoms, the nature of her substance abuse and situations in which she exhibited impulsive anger. These Records were transmitted to Dr. Balasuriya by the hospital as he was her family physician. They were included in her chart, which he provided to the College when requested. The College disclosed them to him in accordance with their disclosure obligations.
[12] As for the 2016 Records, they were sent in error to Dr. Balasuriya's office by the hospital when his former patient was hospitalized in January 2016. Those Records were in the patient chart that he provided to the College. The College later produced those Records back to Dr. Balasuriya in accordance with their disclosure obligation. The 2016 Records document the history and basis for a diagnosis of borderline personality disorder and refer to impulsive and emotionally unstable behaviour. During the admission to the hospital in January 2016, K.S. made the allegations about sexual misconduct by Dr. Balasuriya while he was her physician. The allegation is contained in the 2016 Records. As a result of this disclosure during the time K.S. was being treated at the hospital, the matter was reported to the College.
[13] The 2013-2015 and 2016 Records were transmitted to Dr. Balasuriya's office by the hospital and included in K.S.'s patient chart. The College returned a copy of her complete patient chart with the 2013-2015 and 2016 Records in accordance with the College's disclosure obligation. The matter has been referred for a hearing before the Discipline Committee.
[14] Dr. Balasuriya wishesto disclose the information contained in the Records during the course of his disciplinary [page320] proceedings. He intends to rely on an expert opinion of Dr. Graham Glancy, a forensic psychiatrist, who will testify for the defence regarding the impact of K.S.'s psychiatric condition on her credibility and reliability. In particular, he will describe the possible impact of borderline personality disorder on K.S.'s perception, recall and characterization of events including her motivations for making such allegations. In addition to the diagnosis contained in the Records, upon which Dr. Glancy relies, there are also references to K.S.'s substance abuse issues and her history of childhood abuse, which counsel argues is relevant and necessary information for Dr. Glancy to consider in order to formulate his expert opinion and to provide a report. Dr. Glancy references how patients diagnosed with borderline personality disorder may turn against persons and act out and that there may be anger issues. Counsel acknowledges that the Discipline Committee may not accept this evidence but argues that this is important information for the Committee to have in order to make a fair assessment of the evidence. Therefore, counsel wishes to disclose the information to be able to utilize that opinion before the Discipline Committee.
Issues on the Application
[15] The following issues arise on this application:
(1) Does the applicant require an order under s. 35(9) of the MHA in order to disclose the 2013-2015 Records that were received by the applicant as the patient's physician at the time or is the applicant entitled to rely on s. 41(1) of PHIPA in order to make use of them?
(2) If s. 41(1) does not apply, should the court order disclosure of the 2013-2015 Records under s. 35(9) of the MHA as being "essential in the interests of justice"?
(3) Should the court order disclosure of the 2016 Records under s. 35(9) of the MHA as being "essential in the interests of justice"?
Positions of the Parties on the Application
Position of Dr. Balasuriya
[16] Dr. Balasuriya takes the position that he faces devastating professional and personal consequences because of the allegations made against him by his former patient while she was receiving treatment for a psychiatric condition. Potential consequences are the loss of his licence to practise and his livelihood. He wishes to [page321] rely upon expert evidence that the psychiatric condition from which she suffered, viewed in light of other information obtained in the course of assessing and treating her in the hospital, may cast doubt on the credibility and reliability of her allegations. He argues that he should be permitted to disclose the information necessary to that expert opinion in the proceeding before the Discipline Committee or else he will be unable to make full answer and defence. He further argues that he should be able to argue that K.S.'s description of events is not credible and reliable and that he requires the information in the Records to demonstrate that is the case. Without those Records, he will not be able to utilize the opinion of his expert. He submits that it is "essential in the interests of justice" that Dr. Balasuriya be allowed to disclose information contained in the 2013-2015 and 2016 Records.
[17] Counsel for Dr. Balasuriya further argues that the allegations against Dr. Balasuriya are contained in the 2016 Records and that he should be able to put the allegations in their proper context by disclosing information from the same Records and by referencing information concerning her condition in the years that she was his patient. It is submitted that the information that he seeks to disclose bears on the decisive issue in the proceedings. He takes the position that his right to make full answer and defence and the public interest in fairly adjudicating the allegations made against him outweigh the privacy interest of the former patient in the information obtained during her assessment and treatment at the hospital.
[18] In summary, Dr. Balasuriya takes the following positions with respect to the Records: (1) that he does not require an order to disclose information regarding the 2013-2015 Records as he was K.S.'s family physician at the time and possessed these Records as a "health information custodian"; (2) that if an order is required to allow him to disclose, then such an order is "essential in the interests of justice" in accordance with s. 35(9)(c) of the MHA; and (3) that an order under s. 35(9)(c) permitting him to disclose the information in the 2016 Records is "essential in the interests of justice".
[19] On the first issue, counsel submits that he does not require an order of this court to use and disclose the information contained in the 2013-2015 Records that were provided to Dr. Balasuriya as K.S.'s family physician and that he may disclose that information as he was a "health information custodian" and is a party to a proceeding. Reading s. 35 of the MHA and s. 41 of PHIPA together, the provisions authorize a physician who is a party in a proceeding to disclose information pertaining to the assessment and treatment of a patient in a designated psychiatric [page322] facility, where the physician is in possession of that information as the patient's "heath information custodian". Counsel argues that the provisions are not in conflict where a physician has records in his possession because he was a health information custodian, that the provisions can coexist, and that he may disclose the Records without a court order as he was a health information custodian. He submits that s. 35(9) of the MHA applies to all other persons who are not such custodians. Counsel also submits that there are no cases where s. 35(9) has been applied to a "health information custodian" where they concern mental health information.
[20] With respect to the second and third issues, counsel argues that since Dr. Balasuriya is already in possession of the 2016 Records, he does not require an order to disclose them. Section 35(9) applies to disclosure to someone who does not have the information. Counsel further takes the position that the information contained in the Records is relevant which, as the Supreme Court of Canada has said, means that "there is a reasonable possibility of being useful to the accused in making full answer and defence": see R. v. Chaplin, 1995 126 (SCC), [1995] 1 S.C.R. 727, [1994] S.C.J. No. 89, at para. 30.
[21] Dr. Balasuriya's position is that the information bears on an issue in dispute and, therefore, it is "essential in the interests of justice" that he be permitted to use it. Counsel argues that the cases relied upon by the College that did not permit disclosure were cases that either involved a third-party records application, which this is not, or the information sought to be adduced could be obtained in some other manner, such as through cross-examination. Here, Dr. Balasuriya would not be in a position to do that without an order under s. 35(9). Counsel for Dr. Balasuriya argues that the privacy interests of K.S. in the information obtained during her assessment and treatment at the hospital must yield to Dr. Balasuriya's right to make full answer and defence. Counsel argues that the consequences before the Discipline Committee include the loss of his licence to practise medicine and the loss of his livelihood. If he is able to utilize the information he requests, he may be able to convince the Committee not to find him guilty of professional misconduct.
Position of the College of Physicians and Surgeons
[22] The College argues that K.S.'s privacy interests in the information contained in the Records is high. The Records contain personal and sensitive information that includes references to childhood sexual abuse. The College takes the position that Dr. Balasuriya requires an order under s. 35(9) of the MHA for both [page323] the 2013-2015 Records and the 2016 Records in order to be able to use and disclose the Records. She submits that while the 2013-2015 Records were obtained while Dr. Balasuriya was the patient's family physician, he is not permitted to disclose such records without an order. The disclosure prohibition under the MHA takes precedence over the more permissive disclosure regime under the PHIPA. The two statutes contain certain similar powers, make references to the other statute and adopt the same definitions of terms such as "personal health information", "mentally capable" and "psychiatric facility". However, the MHA does not exempt "health information custodians" in s. 35(9). Thus, it is a reasonable inference that the legislature did not intend to expressly or implicitly exempt health information custodians from compliance with s. 35(9) of the MHA. Counsel argues that the two provisions are in conflict and that the MHA should take precedence.
[23] As for the 2016 Records, Dr. Balasuriya received these in error when he was no longer the patient's physician. He requires an order under the MHA to disclose the Records in any proceeding. Counsel for the College points out that Dr. Balasuriya wishes to disclose the Records at the hearing before the Discipline Committee and to allow him to rely on the opinion of Dr. Glancy to discredit his former patient. As Dr. Glancy never assessed K.S., he must utilize the Records in order to provide any kind of opinion. He would rely on the diagnosis of borderline personality disorder and other information in the Records to argue that she is neither credible nor reliable.
[24] Counsel for the College argues that disclosure of the Records is not "essential in the interests of justice". The court must balance the interests in disclosing the information against the privacy interest of the patient and should have regard to the factors that would be considered where production of such records is sought from a third party. This is especially so where the physician obtains the records through an error and he seeks to use them to attack the credibility of his former patient.
[25] The College takes the position that under s. 35(9) of the MHA, this court may only permit disclosure of any of these Records if it is "essential in the interests of justice" to do so. The test is more than mere relevance. The court must assess the relevance along with the privacy interests of the patient, the context in which the disclosure is sought, and the sensitive nature of the information and the societal interests at stake when the purpose of the disclosure is to allow a litigant to use mental health records to undermine a former patient. The College asks this court to look to other cases involving production of records [page324] from third parties, some of which have shown that careful oversight and caution is required where an applicant seeks to use psychiatric or other highly sensitive and confidential records of a complainant in a sexual abuse case. In particular, she argues that by analogy, this court should look to third party records applications made under the Criminal Code, R.S.C. 1985, c. C-46, in accordance with R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668, [1999] S.C.J. No. 68.
Analysis and the Law
The relationship between the MHA and PHIPA
[26] The Mental Health Act is an Ontario statute that governs the rights and obligations of patients, former patients, outpatients and former outpatients of a designated psychiatric facility. It has a comprehensive scheme for production and disclosure of mental health records.
[27] Section 35 of the MHA outlines a process for production and disclosure of medical records in the possession of a psychiatric facility. Section 35(5) permits production of mental health records in respect of a matter in issue or that may be in issue in a court. It addresses pre-trial disclosure in proceedings. Section 35(9) governs disclosure in a proceeding and where a patient does not consent to the disclosure of protected information, s. 35(9)(c) requires the court to determine whether such disclosure is "essential in the interests of justice".
[28] The original s. 35(2) of the MHA was repealed in 2004 by Bill 31, which enacted PHIPA and also amended s. 35 of the MHA. PHIPA governs the collection, use and disclosure of personal health information. The provision in the MHA is more specific and relates to disclosure of records of patients in psychiatric facilities only. Section 29 of PHIPA provides that health information custodians shall not collect, use, or disclose personal health information about an individual unless it is necessary for a lawful purpose and they have the individual's consent or it is otherwise in accordance with the statute. The provision for disclosure of mental health records under s. 35(9) provides greater protections and is more onerous than the provision under the PHIPA.
[29] Section 35(9) of the MHA reads as follows:
35(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, [page325]
(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.
Section 34.1 provides that:
34.1 Where there is a conflict between the Personal Health Information Protection Act, 2004 and section 35 or 35.1 of this Act . . . the provisions of this Act apply.
Section 41(1) of PHIPA provides that:
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[.]
Section 37(1) of PHIPA provides that:
37(1) A health information custodian may use personal health information about an individual
(h) 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[.]
[30] As a "health information custodian", the person is a party and may disclose personal health information for the purpose of a proceeding. The interplay of s. 41(1) of PHIPA and s. 35(9) of the MHA was considered in the case of Toronto Police Assn. v. Toronto Police Services Board, 2008 56714 (ON SCDC), [2008] O.J. No. 4380, 243 O.A.C. 104 (Div. Ct.),where Ray J., on behalf of the Divisional Court, wrote, at para. 16:
Section35 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 [page326] 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.
(Citations omitted)
[31] In its decision, the Divisional Court referenced the original s. 35(2) of the MHA, which was repealed by PHIPA, and noted how the amended s. 35 and s. 41(1), which permits disclosure of personal health information for various purposes, intersect. However, the court wrote, at para. 20, that while the statutory provisions have to be read together regarding 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."
[32] Ray J. stated that there is no longer a rebuttable presumption against the disclosure of mental health records in the custody and control of a psychiatric facility and instead, that ss. 35 of the MHA and 41(1) of PHIPA when read together, permit the disclosure of personal health information for various purposes in accordance with law. Section 41(1) of PHIPA deals with disclosure of personal health information generally while s. 35 of the MHA establishes special procedures for the disclosure of patient records compiled in psychiatric facilities.
[33] In the recent decision of Swinton J., who was also sitting as a single judge of the Divisional Court in Laity v. College of Physicians and Surgeons of Ontario, [2018] O.J. No. 3969, 2018 ONSC 4557 (Div. Ct.), she considered applications brought pursuant to s. 35(9) of the MHA for orders permitting disclosure of personal health information contained in two consultation notes in a hearing before the Discipline Committee of the College. Those notes were in relation to medical care provided to a patient while she was an in-patient in two designated psychiatric facilities. The patient refused to consent to disclosure of the information. In determining whether disclosure of the documents was "essential in the interests of justice", Swinton J. wrote, at para. 6:
The task for the Court, on applications such as these, is to determine whether the disclosure of the documents is essential in the interests of justice. This requires the Court to consider the relevance and probative value of the documents and the parties' ability to obtain a just determination of the proceeding between them. Weighed against the parties' interest is the patient's interest in preserving privacy and confidentiality with respect to very sensitive medical information. The onus is on the applicants to show that disclosure is essential in the interest of justice (Ahmed v. Stefaniu (2004), 2004 30093 (ON SC), 72 O.R. (3d) 590 S.C.J. at para. 33). [page327]
[34] Swinton J. outlined that the discipline proceedings related to allegations that Dr. Laity had sexually abused the patient and failed to maintain the standard of practice of the profession when he prescribed medication for her. The two consultation notes were in his chart for the patient and he had a copy as her family physician. The College sought an order to disclose these documents in the Discipline Committee hearing to have the College's expert provide an opinion as to whether Dr. Laity met the standard of practice of the profession in his treatment of the patient when he prescribed certain medication in 2016. The two consultation notes are discussed in the expert's report. Swinton J. reviewed the notes and the report and accepted that the notes were essential to the prosecution of the professional misconduct allegations.
[35] Dr. Laity sought to rely on the notes in the motion for production of third party records, which the College was not opposing given its own position. The consultation notes provided an evidentiary foundation to support his request for medical records from the psychiatric facilities in which the patient was hospitalized prior to her final appointment with Dr. Laity as well as the records of her treating physician. He was required to demonstrate that there was a sufficient foundation to show that the records were relevant and that it was in the interests of justice that they be produced. Swinton J. found that the records were relevant to the motion for production of records that he believed were essential to his ability to make full answer and defence to the allegations of sexual abuse. She noted that the documents contained highly sensitive personal information about the patient but that there was a publication ban to prevent publication of information identifying the patient and that an order would protect the patient's privacy. She also acknowledged that the information being sought was already in the patient's medical chart and known to the parties. She concluded that the two consultation notes should be disclosed in the Discipline Committee proceeding as it was essential in the interests of justice and granted the applications.
[36] Swinton J. did not make reference to the use of the Mills factors set out in s. 278.5(2) of the Criminal Code when adjudicating the s. 35(9) application under the MHA. Rather, she considered the issues of relevance, that the records were essential to the ability to make full answer and defence, and the patient's interest in preserving privacy. She also did not consider the argument of the applicant that was made in the case at bar that the information in the 2013-2015 Records may be disclosed as [page328] a former physician was a "health information custodian" under s. 41(1) of PHIPA.
[37] In his submissions with reference to the Laity decision, counsel for Dr. Balasuriya submits that the Divisional Court should not be applying the Mills factors on a s. 35(9) application. That is even the case where the disclosure motion is being brought for the purpose of bringing a third party records motion where the Discipline Committee may consider the Mills factors. Counsel argues that the Divisional Court on a s. 35(9) application is not in a position to conduct the full contextual inquiry and evidence-dependent balancing that Mills contemplates on a third-party records motion or the evidence-dependent balancing the Discipline Committee will engage in at the substantive hearing itself. Counsel argues that the court on a s. 35(9) application does not have jurisdiction to conduct the complete Mills inquiry that the College proposes in the case at bar.
[38] Counsel for the College submits that Swinton J. properly applied the balancing of factors in arriving at her decision but distinguishes the Laity case from the case at bar as Dr. Laity received the records at issue in his capacity of family physician and health information custodian, whereas Dr. Balasuriya received certain records when he was not the patient's physician. In that case, counsel submits, greater weight should be placed on the patient's privacy interest in the balancing of factors under the "essential in the interests of justice" test.
Can Dr. Balasuriya rely on [s. 41(1)](https://www.canlii.org/en/on/laws/stat/so-2004-c-3-sch-a/latest/so-2004-c-3-sch-a.html) of [PHIPA](https://www.canlii.org/en/on/laws/stat/so-2004-c-3-sch-a/latest/so-2004-c-3-sch-a.html) to make use of the 2013-2015 Records?
[39] The 2013-2015 Records contain information concerning the assessment and treatment of K.S. at the hospital between November 3, 2013 and December 28, 2015, a period during which she was a patient of Dr. Balasuriya.
[40] While s. 41(1) of PHIPA permits a health information custodian to disclose information in patient records in a proceeding in which the custodian is or will be a party or witness without either the patient's consent or an order of the court, s. 35(9) of the MHA provides that either consent or a court order is required.
[41] The applicant takes the position that these provisions are not in conflict as s. 41(1) applies to a health information custodian who is or will be a party or witness, while s. 35(9) limits disclosure by persons generally. The applicant argues that where the disclosure is to be effected by a health information custodian, s. 41(1) of PHIPA applies and neither consent nor a court order is required. Where the disclosure is to be effected by any other [page329] person, s. 35(9) of the MHA applies and either consent or a court order is required. Counsel submits that this approach is consistent with Bill 31's purpose, which is to provide a clear and comprehensive framework for the protection and disclosure of personal health information. Furthermore, the applicant argues that this approach is consistent with the instruction of the Supreme Court of Canada in Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, [2012] 3 S.C.R. 489, [2012] S.C.J. No. 68, 2012 SCC 68, at para. 37, regarding harmony and consistency between statutes dealing with the same subject matter and that the broader scheme of s. 35 of the MHA supports this view. The provisions must be read in a harmonious manner because of the presumption in statutory interpretation that the legislature intended to enact statutes that are harmonious, coherent and consistent with each other.
[42] As K.S.'s family physician, counsel argues that Dr. Balasuriya was and remains a custodian of her health information including the information in the 2013-2015 Records, that he will be a party to the proceeding before the Discipline Committee of the College of Physicians and Surgeons, and that the information in the Records "relates to or is a matter in issue in the proceeding", that is, the reliability and credibility of K.S.'s account of her interactions with Dr. Balasuriya. Therefore, counsel argues, Dr. Balasuriya may disclose the information in the 2013-2015 Records in the proceeding under s. 41(1)(a) of PHIPA and neither the consent of K.S. or an order of a court is necessary.
[43] The College argues that the disclosure prohibition under s. 35(9) of the MHA takes precedence over the disclosure regime in PHIPA. The College argues that the provisions are in conflict and that it is not possible to reconcile the contention of Dr. Balasuriya that because he was a health information custodian of the 2013-2015 Records, he does not need an order. While he was her family physician from March 2012 to October 2015 and, as such, collected personal health information about K.S. and was a health information custodian of her 2013-2015 Records, he was no longer her family doctor as of October 2015.
[44] The College also submits that s. 34.1 of the MHA provides that the disclosure provisions in the MHA prevail over those of PHIPA where there is a conflict. Ms. Widner argues that the section demonstrates that the legislature specifically turned its mind to the relationship between s. 35 of the MHA and PHIPA and concluded that in the event of a conflict, s. 35 of the MHA would prevail. Ms. Widner argues that as a former patient in a psychiatric facility, K.S. is a patient to whom the disclosure [page330] provisions apply. The prohibition in s. 35(9) is broadly worded such that there is no indication that it is intended to be read in a way to conform with the more permissive regime in s. 41(1)(a) of PHIPA.
[45] In addressing this issue, I first note that there is nothing in s. 35(9) which allows for an exception for health information custodians. Ruth Sullivan wrote in Sullivan on the Construction of Statutes,6th ed. (Markham: LexisNexis, 2014), at 8.90, as follows:
An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within its legislation, it would have referred to that thing expressly. Because of this expectation, the legislature's failure to mention the thing becomes grounds for inferring that it was deliberately excluded. Although there is no express exclusion, exclusion is implied.
[46] In my view, the inference that the legislature did not intend to expressly or implicitly exempt health information custodians from complying with s. 35(9) of the MHA is supported by the implied exclusion argument that, had the legislature meant to include a particular thing in the legislation, it would have referred to it expressly. Thus, the failure to mention the thing becomes grounds for inferring that it was deliberately excluded. The language of the legislation was broad when it used the phrase "no person". Furthermore, s. 35(10) and (11) contain exemptions where s. 35(9) does not apply. Had the legislature intended to exclude health information custodians from the s. 35(9) disclosure regime, it would have done so explicitly.
[47] Dr. Balasuriya relies upon the Toronto Police Association case to argue that s. 35 of the MHA and PHIPA must be read together. The College argues that the case was concerned with disclosure to parties under s. 35(5) and not disclosure in a proceeding under s. 35(9). The issue was whether the arbitrator in that case was correct in concluding that s. 35(9) was not applicable to the pre-trial disclosure at issue. The court held that the arbitrator was correct and that s. 35(5) and not s. 35(9) of the MHA applied.
[48] In my view, the approach urged by counsel for Dr. Balasuriya would negate the effect of s. 35(9). While the provisions of s. 35 of the MHA and s. 41(1) of PHIPA are not in conflict, in my view, the more specific governing provision for psychiatric records is outlined in the MHA and s. 35(9) applies. To find that s. 35(9) exempts health information custodians from compliance with that provision, especially given the implied exclusion argument of statutory interpretation, would negate the protections intended for highly personal mental health records. [page331]
[49] I also agree with the College that s. 35(9) applies to information that is already in the possession of the party disclosing it. Simply because Dr. Balasuriya had received the 2013-2015 Records as a health information custodian and has them in his possession does not equate with the right to disclose the Records in the Discipline Committee proceeding: Laity. He requires an order under s. 35(9) in order to disclose the Records in the proceeding before the Discipline Committee. Similarly, merely because he received the 2016 Records through an error and has them in his possession as they relate to K.S.'s admission at the hospital during the period of January 17 and 25, 2016, does not allow him to disclose the Records without an application under s. 35(9). During this time, K.S. was no longer a patient of the applicant and it was during this time that she made an allegation of sexual misconduct by Dr. Balasuriya while he was her physician.
[50] Dr. Balasuriya must meet the test under the MHA that disclosure may only be ordered for use in the Discipline Committee proceeding if he meets the test that such disclosure of the information in the Records is "essential in the interests of justice". Accordingly, I find that an application under s. 35(9) applies to both the 2013-2015 and the 2016 Records.
Is disclosure of the 2013-2015 and 2016 Records essential in the interests of justice?
[51] Having held that s. 35(9) of the MHA applies to both sets of Records, I now turn to the application of s. 35(9) (c) of the MHA to the Records in this application. Dr. Balasuriya submits that relief should be granted under this section to disclose the information in the 2013-2015 Records as it is "essential in the interests of justice" that he be allowed to disclose the information in the Records in the Discipline Committee proceeding. While the phrase, "essential in the interests of justice", has not been considered extensively by the courts, there is some jurisprudence interpreting similar provisions.
[52] For example, in the case of R. v. Bernardo, 1997 2240 (ON CA), [1997] O.J. No. 5091, 105 O.A.C. 244 (C.A.), the Court of Appeal for Ontario considered a similar provision in the context of s. 684(1) of the Criminal Code, which gives an appellate court the power to assign counsel to act on behalf of an accused where it [at para. 11] "appears desirable in the interests of justice". The court wrote, at para. 16, as follows:
The phrase "the interests of justice" is used throughout the Criminal Code. It takes its meaning from the context in which it is used and signals the existence of a judicial discretion to be exercised on a case-by-case basis. The [page332] interests of justice encompass broad based societal concerns and the more specific interests of a particular accused.
[53] In Ahmed v. Stefaniu (2004), 2004 30093 (ON SC), 72 O.R. (3d) 590, [2004] O.J. No. 3854 (S.C.J.), Cullity J. considered the meaning of s. 35(9) in a medical negligence case where the plaintiffs were the husband and children of a person who was killed by William Johannes and the defendants were physicians who had provided care to him. Johannes was found not criminally responsible and was detained in a psychiatric hospital. The plaintiffs alleged negligent diagnosis and care of Mr. Johannes. The defendant physicians brought a motion under s. 35(9) for an order compelling the production of Mr. Johannes' mental health records after the period at issue in the litigation and permitting them to disclose the information in those records in their defence. The defendants' solicitors filed affidavit evidence asserting that the records may be relevant in assessing the allegations made against them and that they were necessary for the purpose of assessing the central issues in the action.
[54] Cullity J. held that s. 35(9) places the burden on the moving party to satisfy the court that production is essential in the interests of justice. This required more than a finding that the evidence "could be relevant to a central issue in the litigation": at para. 33. The moving party's evidence was insufficient to reach a finding that production was essential in the interests of justice. The only evidence in the record on this issue was the statement of the moving party's solicitors by affidavit that the records "will, or may be, of central importance to this action" and that "they would contain information, with respect to [Johannes'] diagnosis and the effect of the treatment, that may be relevant in assessing the allegations made against the defendants": at para. 25. Counsel submitted that Cullity J. [at para. 26] "should infer from the issues raised in the pleadings that the records would -- and not merely could -- be relevant". Cullity J. noted that more was required to meet the burden in s. 35(9)(c). He further stated that this section requires the court to balance the patient's privacy interest against the interests of the parties to the litigation and that "requires more than a finding that the evidence could be relevant to a central issue in the litigation": at para. 33.
[55] In the case of Michener Institute for Applied Health Sciences v. Musa, 2009 CarswellOnt 6016 (Div. Ct.), the Divisional Court ordered disclosure in a Human Rights Tribunal proceeding as "essential in the interests of justice" because the information was "of central importance to the defence". The decision is brief and does not reference the other considerations such as the privacy interest of the patient or the societal interest in disclosure. [page333] In the leading case of R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126, which deals with the issue of fresh evidence, the Supreme Court considered the meaning of the words "the interests of justice" in the Criminal Code regarding the receipt of fresh evidence in an appeal. McIntyre J. reviewed a number of cases and outlined principles that emerge from them. While this is in an entirely different context than the case at bar, those principles have some general application. They are articulated as follows, at p. 775 S.C.R.:
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen.
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
(3) The evidence must be credible in the sense that it is reasonably capable of belief, and
(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[Footnote omitted]
[56] Counsel for the College takes the position that Dr. Balasuriya is urging a narrow view that is dependent upon on a mere show of relevance. Ms. Widner argues that the cases cited by Dr. Balasuriya are of limited assistance and that the court should look to jurisprudence that includes a consideration of the patient's privacy interests. She submits that the test is broader and requires a consideration of both relevancy and a weighing of the privacy interests of the patient, the context in which disclosure is sought, and the confidential and sensitive nature of the information, as well as the societal interests at stake when a court allows a litigant to disclose mental health records to undermine a former patient. This is particularly so where the physician seeks to disclose confidential mental health records of a former patient that he obtained in error in order to attack her credibility.
[57] For example, she relies upon the decision of Children's Aid Society of Niagara Region v. A. (E.), [1980] O.J. No. 2866, 1980 1535, where the Ontario Provincial Court (Family Division) considered whether disclosure under a similar provision in an earlier version of the Mental Health Act was essential in the interest of justice in a proceeding under the Child Welfare Act, 1978, S.O. 1978, c. 85. There, the Children's Aid Society sought a father's mental health records from a psychiatric facility to support its position that the children were "in need of [page334] protection". The court held, at para. 22, that while the records were relevant on the fitness of the father to have custody of the children, in balancing the competing interests of the father and children, disclosure was not essential in the interests of justice. The court, at paras. 23-24, referenced that the issues the applicant sought to raise from the records could be adduced in another way and that it was important to preserve confidentiality in the doctor-patient relationship.
[58] Ms. Widner submits that this court should look to the regime applied in cases involving the College of Physicians and Surgeons and to other cases of production of third party records in deciding whether disclosure is "essential in the interests of justice". These cases recognize that careful oversight and caution are needed where an applicant seeks to use psychiatric or other highly sensitive and confidential records of a complainant in a sexual abuse case.
[59] Counsel for Dr. Balasuriya takes the position that the jurisprudence involving production motions by the Discipline Committee of the College are not relevant to the issues at hand as in those cases the information could be adduced in some other way such as through cross-examination. In the case at bar, it is necessary to disclose the Records in order to permit the expert evidence to be adduced.
[60] Both counsel argue that certain procedures and principles from the criminal law context should be utilized in these types of proceedings: the applicant argues for disclosure of these Records in order that he may make full answer and defence; the respondent submits that the procedures and requirements outlined in the Criminal Code and jurisprudence should be adopted for disclosure applications under the MHA.
[61] A disciplinary proceeding before the College is not a criminal trial and, while the consequences are serious, the purpose of the proceedings is different. Not all procedures and requirements under the Criminal Code can or should be imported to a hearing in a regulatory prosecution: see Latulippe v. Quebec (Tribunal des Professions), 1998 12943, EYB 1998-06604 (Que. C.A.),at p. 13. The context of the proceeding is an important consideration. That concept was discussed by McLachlin J. in M. (A.) v. Ryan, 1997 403, [1997] 1 S.C.R. 157, [1997] S.C.J. No. 13, where the defendant in a civil proceeding alleging a claim for damages for sexual assault was seeking production of a psychiatrist's counselling records and notes concerning the plaintiff and the court had to consider whether the documents were privileged. McLachlin J. highlighted the difference in ordering disclosure in a civil action from a criminal proceeding as follows, at para. 36: [page335]
In deciding whether he or she is entitled to production of confidential documents, this requirement must be balanced against the privacy interest of the complainant. This said, the interest in disclosure of a defendant in a civil suit may be less compelling than the parallel interest of an accused charged with a crime. The defendant in a civil suit stands to lose money and repute; the accused in a criminal proceeding stands to lose his or her very liberty. As a consequence, the balance between the interest in disclosure and complainant's interest in privacy may be struck at a different level in the civil and criminal case; documents produced in a criminal case may not always be producible in a civil case, where the privacy interest of the complainant may more easily outweigh the defendant's interest in production.
[62] Although a prosecution against a physician by the College of Physicians and Surgeons is not a criminal proceeding, in my view, it is closer to such a prosecution and the physician must be allowed to make full answer and defence than it is to a civil action claiming monetary damages. I also agree with McLachlin J.'s comment, at para. 38, as follows: "But I do not accept that by claiming damages as the law allows a litigant, grants her opponent a licence to delve into private aspects of her life which need not be probed for the proper disposition of the litigation." The issue I must consider is whether it is "essential in the interests of justice" that disclosure of such information be granted in order to allow for the proper disposition of the proceedings in this matter.
[63] While I am not deciding the issue that will be before the Discipline Committee as to whether to admit in evidence the report of Dr. Glancy, the preliminary step of ordering disclosure requires a number of considerations as I have outlined above. To summarize, on an application under s. 35(9) of the MHA, this court must consider the following factors:
(1) relevance of the records to the proceedings;
(2) the need to protect the right of the party about whom the complaints are brought to make full answer and defence while not permitting a fishing expedition;
(3) the need to consider the privacy interests of the complainant or witness; and
(4) limiting the disclosure of highly sensitive and confidential records to only certain circumstances.
[64] Under s. 35(9)(c), an applicant must demonstrate that disclosure of the information being sought in the psychiatric record is "essential in the interests of justice". To be considered essential, the information must be relevant and important to the applicant's defence of the allegations. In this case, the applicant has sought an expert opinion from Dr. Glancy, who must rely on the [page336] information in order to formulate an opinion and provide evidence to the proceeding. The Discipline Committee will determine whether a psychiatric condition can impact on the reliability of a person making allegations and to what extent the allegations may be credible. It is conceivable that the Discipline Committee will decline to admit the opinion or place little weight upon it. The issue is simply whether disclosure of the information in the 2013-2015 Records and the 2016 Records is "essential in the interests of justice" in the context of this proceeding.
[65] On the issue of relevance, I view the Records in question to be relevant in the sense that there is a "reasonable possibility of [them] being useful" to Dr. Balasuriya in making full answer and defence to the allegations: see R. v. Chaplin, at para. 30. The information sought to be disclosed may bear on a dispositive issue. However, even if the Records are essential to the person in making full answer and defence, the concept of "in the interests of justice" also includes a consideration of the right to privacy of the complainant in the Records.
[66] In the case of R. v. Coon, 1991 11746 (ON SC), [1991] O.J. No. 3766, 74 C.C.C. (3d) 146 (Gen. Div.), Then J. decided whether the psychiatric records of a complainant in a case alleging sexual assault by a police officer while he was on duty should be produced for the criminal trial because it was essential in the interests of justice under s. 35(7) (then s. 29(7)). He held that the requirements of s. 35(7) of the MHA regarding disclosure of clinical records of a patient in a psychiatric facility involved the following, at p. 157 C.C.C.:
In determining what is essential in the interests of justice the court will attempt to strike a balance as Donnelly J. stated in R. v. Morin, supra between the right of the accused by cross-examination to test motive, disposition, veracity and reliability of the witness and the witness's right to privacy and confidentiality in respect of medical records. I agree with Donnelly J. that if a sufficient foundation is laid then the privacy interest must yield to the accused's right to full answer and defence.
[67] Then J. outlined a list, at p. 157 C.C.C., of some factors that may be considered as to whether a sufficient foundation has been established. While the decision deals with a different provision of the MHA,certain of those factors have some relevance to a case such as this one in light of the "essential in the interests of justice" test and include "(1) the nature and seriousness of the offence; (2) the importance of the witness to establishing the guilt of the accused; (3) the proximity of the mental disorder to the date of the offence; and (4) the existence of evidence to suggest a motive to fabricate". The context and potential role this information may play in the proceeding is a critical consideration. [page337] I note that this case pre-dated the Supreme Court of Canada case of R. v. Mills.
[68] In the context of a criminal proceeding, the issue of when an accused should have access to private records of complainants and witnesses in sexual assault trials was considered by the Supreme Court in R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98. After O'Connor, Parliament enacted amendments to s. 278 of the Criminal Code that set out a series of factors for courts to consider when deciding whether a document should be produced. The statutory regime was upheld in R. v. Mills as being constitutional. Mills, at para. 61,reviewed a series of factors that a trial judge must consider in deciding whether certain records in the hands of third parties should be disclosed and how the court is to balance competing interests.
[69] I wish to emphasize that the factors outlined in the Criminal Code and discussed in Mills apply to criminal proceedings. I do not accept the College's position that they should be adopted in deciding an application under s. 35(9). However, they do provide some guidance on how to approach these matters. Although in different contexts, courts and the Discipline Committee have held that criminal law principles and concepts do not automatically transfer to MHA matters: see Nelson v. Livermore, [2017] O.J. No. 4691, 2017 ONCA 712, 417 D.L.R. (4th) 133, at para. 58; College of Physicians and Surgeons of Ontario v. McIntyre, [2017] O.J. No. 193, 2017 ONSC 116, at para. 34; Billing (Re), [2017] O.C.P.S.D. No. 27, 2017 ONCPSD 30, at p. 8; Penetanguishene Mental Health Centre v. Stock, 1994 7506 (ON SC), [1994] O.J. No. 1545, 116 D.L.R. (4th) 550 (Gen. Div.), at paras. 9-10.
[70] Dr. Balasuriya does not face a criminal prosecution at this time and the sanctions that may flow. However, he does face serious and significant consequences if the Discipline Committee accepts the evidence of the complainant that could lead to the loss of his licence to practise medicine. In College of Physicians and Surgeons of Ontario v. Au, 2005 2037 (ON SCDC), [2005] O.J. No. 234, 194 O.A.C. 145 (Div. Ct.), the Divisional Court upheld as reasonable the Discipline Committee's reliance on principles derived from criminal law in a sexual abuse allegation against a physician for a third-party records application. In Au, the Committee ordered disclosure of certain records after adopting the dual requirements of "likely relevance" and the "necessary in the interests of justice" test discussed in Mills. The Committee also relied on some of the factors in s. 278.3(4) of the Criminal Code. Furthermore, in Lee v. College of Physicians and Surgeons of Ontario, heard August 23, 2017, the Discipline Committee applied the first stage of the test in Mills and denied the request by the physician [page338] seeking production of third party records because the records were not "likely relevant". While the Discipline Committee has previously adopted this approach to third party records applications, in my view the test in Mills is not the test for a disclosure application under the MHA.
[71] The test under the MHA is whether disclosure is "essential in the interests of justice". While the test discussed in Mills is whether disclosure is "necessary in the interests of justice" and the concepts may be identical, the contexts within which the applications arise are different. Not all the principles applicable under Mills are relevant to s. 35(9). However, the need to balance various considerations in order to arrive at a decision is analogous.
[72] Balancing the privacy interests of a patient in sensitive personal records against the right to make full answer and defence in litigation is a concept contained within the "essential in the interests of justice" test. As a judge must do in a third-party records application under s. 278 of the Criminal Code or in a Discipline Committee proceeding, in an application under s. 35(9) of the MHA, a judge must look at the context of the information sought to be produced and disclosed, and balance the factors in deciding whether to order disclosure. In other words, I am to consider whether the information may bear significantly on matters in issue and may affect the right to make full answer and defence against the privacy interests of the complainant.
[73] Counsel for the College submits that professional disciplinary proceedings are aimed at maintaining discipline, professional integrity and professional standards, or to regulate conduct within a limited sphere of activity. The liberty interest of the individual is not at stake. The jeopardy faced in disciplinary proceedings or in a civil suit are not the same as in a criminal case. Therefore, counsel argues, the complainant's right to privacy should weigh more heavily against the rights of the defendant in a regulatory context than in criminal cases. Ms. Widner relies on the words of McLachlin J. in M. (A.) v. Ryan, at para. 36, which are outlined previously in this decision.
[74] As I have said, a civil proceeding involving monetary issues is a different kind of proceeding than a criminal matter where the liberty of the individual is at stake. Counsel for the College points out that on third-party records motions before the Discipline Committee, the Committee has recognized that the types of protections available to an accused in the criminal law context may not be available to a physician who is subject to College discipline proceedings and that balancing the rights of the physician and the patient may result in greater weight being given to the [page339] patient's privacy interests than would be the case in a criminal trial: see CPSO and Lee, at pp. 4-5.
[75] Ms. Widner argues further that amendments to s. 42.2 of the Code provide authority that a patient's privacy interest in confidential health information should be given greater weight in regulatory proceedings as compared to criminal trials: see s. 42.2(3). That section provides:
42.2(3) In determining whether to grant an order for the production of records in accordance with this section, the panel shall consider,
(a) the regulatory nature of the proceedings;
(b) the primary purpose of the proceedings, which is to protect the public and regulate the profession in the public interest;
(c) the privacy interest of the complainant or a witness in the record sought; and
(d) the nature and purpose of the record sought in the motion.
[76] This section was added in the context of third party records rather than in the context of disclosure under the MHA but it is argued that it demonstrates legislative intent to give greater weight to the privacy interests of patients in regulatory proceedings as opposed to in criminal proceedings. Counsel for the College also suggests that the Discipline Committee in CPSO and Mrozek, dated January 25, 2017, at p. 5, commented that the legislative intent under the MHA is to ensure that it is "more onerous" to use information obtained in a psychiatric facility than other personal health information.
[77] The question that I must address is whether disclosure is "essential in the interest of justice". I first consider the question of relevance. I agree with counsel for Dr. Balasuriya that the information in the 2013-2015 Records contains necessary information in order for Dr. Glancy to formulate his opinion. In particular, the history and diagnosis of medical conditions of the complainant are critical to his views concerning her allegations and motivations. In my view, the information sought to be disclosed is not of marginal relevance. Rather, it may bear significantly on the reliability and strength of the evidence of the complainant. In this regard, I consider that the 2013-2015 Records provide the foundation for Dr. Glancy's opinion. With these Records, he is able to formulate his views.
[78] I also consider that this is a sufficiently serious matter where there is potential loss of livelihood to warrant intrusion. I acknowledge that the most serious punishment for a finding of misconduct is revocation and that a physician may re-apply for admission to the College. While these are not penal consequences [page340] and the liberty of the individual is not at stake, the type of proceeding and the potential consequences are more akin to a criminal prosecution. The College itself has acknowledged that by applying processes and principles from the criminal law sector to aspects of the College's disciplinary proceedings. I find that these Records may bear upon a decisive issue in the proceeding and this is not merely a collateral issue. In my view, their potential use is not for the purposes of a fishing expedition.
[79] While I certainly recognize that the disclosure of the Records is a significant invasion of K.S's privacy, I am of the view that these Records outline medical conditions that may be relevant to the issues before the Discipline Committee and that Dr. Balasuriya requires disclosure to be able to utilize the information in order to make full answer and defence. I am mindful that the credibility of a witness is something that must be ultimately decided by the Discipline Committee. As the Supreme Court of Canada wrote in R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223, [1993] S.C.J. No. 119, at p. 248 S.C.R., "It is a fundamental axiom of our trial process that the ultimate conclusion as to the credibility or truthfulness of a particular witness is for the trier of fact, and is not the proper subject of expert opinion." However, at p. 249 S.C.R., the Supreme Court noted that there may be aspects of the evidence given of a witness that justify expert evidence:
For this reason, there is a growing consensus that while expert evidence on the ultimate credibility of a witness is not admissible, expert evidence on human conduct and the psychological and physical factors which may lead to certain behaviour relevant to credibility, is admissible, provided the testimony goes beyond the ordinary experience of the trier of fact. Professor A. Mewett describes the permissible use of this sort of evidence as "putting the witness's testimony in its proper context."
[80] Turning to the factor of the privacy interests of K.S., while I certainly am mindful that to disclose the Records may be an invasion of her privacy, there are ways of limiting the use and access to highly sensitive and confidential information through the ordering of a publication ban.
[81] Having engaged in a balancing exercise in determining whether disclosure of the 2013-2015 Records should be ordered under s. 35(9) of the MHA, I order such disclosure for the reasons outlined above.
[82] I now turn to the 2016 Records and note that Dr. Balasuriya received them in error when he was no longer K.S.'s physician. The fact that he already has access to the 2016 Records, especially where they were given in error, in no way lessens the test for determining whether disclosure should be granted. Dr. Balasuriya concedes that he requires an order from this court to disclose the [page341] 2016 Records in the discipline hearing. He argues that it is "essential in the interests of justice" that he be permitted to disclose the balance of the information contained in that Record to allow Dr. Glancy to provide an opinion that is relevant to the complainant's credibility and reliability.
[83] The issue that I must decide is whether applying the kinds of factors I have discussed above, the privacy interest in the Records is outweighed by the probative value of them and the right of the physician to make full answer and defence. The Records refer to assessment and treatment after the physician/ patient relationship was terminated. However, they provide context to the allegations and offer necessary information to Dr. Glancy to provide a foundation for an opinion.
[84] With reference to the 2016 Records, the allegations made by the complainant were done in the context of her hospitalization in 2016 and that information has been disclosed to Dr. Balasuriya. Merely because the allegations are contained in the 2016 Records does not make disclosure of the balance of the Records necessary. However, I do consider the context of the allegations, when and how they were made, the seriousness of the allegations, the subject matter of this proceeding and the potential consequences for Dr. Balasuriya. I also take into account that the Records may affect a central issue in the proceeding before the Discipline Committee and that Dr. Balasuriya intends to seek to rely on Dr. Glancy's opinion to support his position in order to make full answer and defence. The diagnosis and reasons for hospitalization are pertinent to the opinion of the proposed expert. I balance those considerations with the need to protect the privacy interests of the complainant in such confidential information. Clearly these are records that contain highly sensitive personal information about K.S. and her mental health.
[85] In applying this balancing exercise, I conclude that, in the context of these proceedings, it is "essential in the interests of justice" to order the disclosure of the 2016 Records. Again, with access to the Records, Dr. Balasuriya will be in a position to make full answer and defence. The privacy interests of the complainant may be protected through a publication ban and with other procedures available to the Discipline Committee to protect the identity of K.S.
Result
[86] In accordance with s. 35(9)(c) of the MHA, this application has been heard in the absence of the public. I order that publication of the identity of K.S. is prohibited. For the reasons outlined above, I conclude that disclosure of the 2013-2015 Records is [page342] ordered under s. 35(9) of the Mental Health Act and that the test outlined in that statute applies. I further consider that it is "essential in the interests of justice" that disclosure be made of the information contained in the 2013-2015 Records. For the reasons outlined, I find that it is also "essential in the interests of justice" that the 2016 Records be disclosed.
[87] In making this decision, of course, I do not make any determination on whether the evidence that Dr. Balasuriya intends to lead based on the Records should be admitted before the Discipline Committee or that, if such evidence is admitted, what weight should be attached to it. The question of credibility or reliability of a witness' evidence is a matter to be determined by the trier in a proceeding. The opinion of an expert about credibility or reliability of a witness' evidence is merely a factor to consider if the trier deems the evidence both admissible and relevant. The ultimate issue of credibility and reliability of evidence will be for the trier to decide.
[88] In accordance with the agreement of the parties, there will be no order as to costs.
Application allowed.
End of Document