Fikry v. College of Physicians and Surgeons of Ontario, 2018 ONSC 7744

CITATION: Fikry v. College of Physicians and Surgeons of Ontario, 2018 ONSC 7744

DIVISIONAL COURT FILE NO.: 223-18-JR

DATE: 20181228

ONTARIO

SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

DR. SAMEH ADLY FIKRY Applicant

– and –

COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO Respondent

Kosta Kalogiros and Avi Bourassa, for the Applicant

Morgana Kellythorne and Kirk Maijala, for the Respondent

HEARD: June 27, 2018

PUBLICATION BAN NO PERSON SHALL PUBLISH OR BROADCAST THE NAMES OR IDENTITIES OF ANY PATIENTS OR ANY INFORMATION THAT COULD DISCLOSE THE IDENTITY OF ANY PATIENT

REASONS ON APPLICATION PURSUANT TO S. 35(9) OF THE MENTAL HEALTH ACT, R.S.O. 1990, c. M.7

HIMEL J.

[1] This application arises from disciplinary proceedings taken by the College of Physicians and Surgeons (the “College”) involving allegations that Dr. Sameh Fikry sexually abused a patient (“Patient A”) while he was her family physician and that he is guilty of disgraceful, dishonourable, and unprofessional conduct. He denies the allegations. The issue on this application is whether it is “essential in the interests of justice” that Dr. Fikry be able to disclose in a third party records motion and any other related motions before the Discipline Committee, a discharge summary that contains information about Patient A’s admission to the Centre for Addiction and Mental Health (CAMH), which is a psychiatric facility. This discharge summary is already in the possession of Dr. Fikry and the College. Dr. Fikry’s motion before the Discipline Committee will be to seek production of further records from CAMH from 2010 onward that he says refer to Patient A’s past and present substance abuse, diagnosed mental illness, a previous history of sexual and physical trauma, social history, legal status, neurological history, judgment, mental status, and to her dealings with Dr. Fikry.

[2] Dr. Fikry’s application for an order of disclosure is brought pursuant to s. 35(9)(c) of the Mental Health Act, R.S.O. 1990, c. M.7 (the “MHA”). Patient A was served with notice of the proceedings and counsel for the College advises that she does not consent to the disclosure of the discharge summary.

[3] 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)(c) of the MHA, 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

The Allegations against Dr. Fikry

[4] In October 2015, Patient A contacted the College to report that Dr. Fikry had sexually abused her while he was her family physician. Patient A alleged that Dr. Fikry engaged in sexual intercourse and oral sex with her and that he offered to prescribe narcotics and/or prescribed narcotics in exchange for sexual favours. She also alleges that he gave her money, which she used to purchase narcotics. She alleges that the sexual acts took place during the time when he was prescribing narcotics to her. According to his clinical records, he had prescribed narcotics during the period between November 2010 and November 2012 for various medical conditions. Dr. Fikry was Patient A’s physician from September 2010 until July 2015. The last time for which Dr. Fikry submitted a claim to the Ontario Health Insurance Plan was on May 26, 2015.

[5] Dr. Fikry has been practising family medicine for over 23 years and, specifically, in the Kitchener-Waterloo area since 2010. He is 51 years old and his wife is a physician who works in the same office. Dr. Fikry responded to the allegations and denied any sexual abuse of Patient A He said that Patient A had been experiencing worsening addictions issues and increasingly aberrant behavior during the treating relationship. He said that the last time he saw her was on April 6, 2015. Dr. Fikry also took the position that Patient A fabricated the allegations in retaliation for what she believed was Dr. Fikry improperly interfering in certain family court proceedings. By court order in June 2015, Dr. Fikry’s medical records for Patient A were subpoenaed in family court proceedings involving Patient A and her former partner. The issue before the court related to access to her daughter. Within those records subpoenaed were records showing a history of incidents of alcohol and substance abuse. Dr. Fikry says that Patient A requested that he prepare a false report suggesting that Patient A did not have ongoing issues with substance abuse, failing which she would make a complaint against him. Dr. Fikry says that he refused to provide a false report during the proceedings and that Patient A retaliated with a false complaint.

The Procedure before the College

[6] Following the complaints made by Patient A to the College in October 2015 and the investigation, the College issued a Notice of Hearing on December 7, 2016 referring Patient A’s complaints to the Discipline Committee. The notice alleges that Dr. Fikry treated Patient A between September 2010 and May 2015 and that he engaged in sexual abuse of and/or disgraceful, dishonourable, or unprofessional conduct towards her, including making inappropriate and/or sexual remarks during medical appointments, engaging in sexual intercourse and/or oral sex with her, offering to prescribe narcotics and/or prescribing narcotics in exchange for sexual favours, and giving her money including to purchase narcotics.

[7] In July 2017, while Dr. Fikry was dealing with the allegations of sexual abuse of Patient A, he received a discharge summary from CAMH. It is a twelve page document regarding Patient A’s admission. The CAMH discharge summary dated July 10, 2017 identified him as Patient A’s family physician but he was no longer her physician. In fact, the new family physician was also noted and the document was sent in error to Dr. Fikry.

[8] On July 25, 2017, Dr. Fikry notified the College that he had received the discharge summary and gave a copy to the College. The College objected to Dr. Fikry relying on the discharge summary in the context of his disciplinary proceeding. It asserted on behalf of Patient A that she did not consent to the release of the summary by CAMH to Dr. Fikry. It contains information obtained in the course of assessing or treating Patient A at CAMH from June 28 to July 4, 2017. The summary discusses that she was considered to have “partial judgment”, that she was suffering from the sequelae of a stroke, that she had previously been prescribed a Fentanyl patch three years ago for 16 months (not by Dr. Fikry), which is relevant to her allegation that Dr. Fikry increased her prescription in exchange for sexual favours, and that she reported that she suffered sexual trauma by her stepfather when she was a child but did not report abuse by Dr. Fikry.

[9] The College requested that Dr. Fikry notify CAMH that he was not her physician and that any future correspondence concerning S.J ought to be directed to her current family physician. Dr. Fikry notified CAMH on August 2, 2017 and confirmed on August 22, 2017 with the College that he had done that.

[10] On September 25, 2017, Dr. Fikry gave notice of his intention to bring a third party records motion seeking production under s. 35(5) of the MHA of Patient A’s records from CAMH from 2010 onwards that refer to past and present substance abuse, diagnosed mental illness, previous history of sexual and physical trauma, social history, legal status, neurological history, judgment, mental status, and her dealings with Dr. Fikry. When Dr. Fikry brought a third party records motion, he made reference to the fact that he received the discharge summary of Patient A and he filed a number of exhibits that included materials from his own patient chart concerning Patient A’s records from Cambridge Memorial Hospital, affidavits of Patient A’s former partner and police occurrence reports. On October 10, 2017, the College brought a motion to strike references to certain of the materials filed including the discharge summary on the basis that they violated s. 35(9) of the MHA.

[11] On January 11, 2018, the Discipline Committee issued reasons that Dr. Fikry could not make reference to the discharge summary without obtaining permission from the Divisional Court under s. 35(9)(c). It is for this reason that Dr. Fikry seeks an order under s. 35(9)(c) permitting him to disclose in his third party records motion, during the hearing before the Discipline Committee, and at any other motions before the Discipline Committee, the discharge summary that contains information about Patient A obtained in the course of treating her at CAMH between June 28 and July 4, 2017.

POSITIONS OF THE PARTIES ON THE APPLICATION

Position of Dr. Fikry

[12] Dr. Fikry submits that the discharge summary that has already been seen by the parties should be ordered disclosed as it is “essential in the interests of justice” that he be permitted to disclose and use it in order to make the case for production of the records. He claims he requires this information in order to make full answer and defence to the allegations. He also seeks an order that the application be heard in the absence of the public under s. 35(9)(c) and an order prohibiting the publication of Patient A’s identity and any information that would tend to identify her.

[13] Counsel for Dr. Fikry will take the position that Patient A has a history of dishonesty, fabricating allegations, erratic behaviour, and compromised judgment and that this led to substance abuse crises requiring psychiatric intervention. Counsel will argue that these factors are relevant to her credibility and reliability at the time of the allegations and that credibility will become critical to the determination of the issues. From the disclosure received to date, it is submitted that there are references to Patient A having attended CAMH on various occasions, receiving treatment relating to alcohol and substance abuse, and that there are comments that while she was receiving treatment, she showed compromised judgment and dishonesty. Further, she was found by police to lack credibility when she made allegations against third parties. Dr. Fikry argues that the discharge summary will show evidence in support of the production of the CAMH records.

[14] Counsel for Dr. Fikry takes the position that issues of Patient A’s reliability and credibility including honesty and making unfounded allegations against others will be central issues at the discipline hearing. Therefore, the information contained in Patient A’s records is relevant to the issues at the hearing.

[15] In his materials, Dr. Fikry provided specific examples of information in the discharge summary that would suggest unfounded allegations. For example, that in the spring of 2014, while being treated for addiction at CAMH, Patient A was complaining to police about her neighbours and police found no basis upon which to act, that she was acting erratically at the Cambridge Memorial Hospital resulting in her being escorted out for stealing supplies, that from early in 2015 until August 2015, she reported to treating physicians that she was drinking 26 ounces of vodka on a daily basis, that she had multiple falls, and that she had no memory of incidents. She made allegations against the father of her child but the allegations were not acted upon by police. The applicant argues that the police inaction suggests she lacked credibility when she made the allegations.

[16] Dr. Fikry also argues that, in particular, the records may show: (1) that Patient A had chronic pain and physical ailments that required narcotic analgesic treatment and that there was an underlying mental disorder or addiction relevant to matters in issue; (2) that they contain references to her historical and active substance abuse and mental health issues (including a diagnosis of major depressive disorder) and the consequences of a stroke, which may affect her judgment; (3) they may contain information that her addiction and mental health conditions may have affected the way she experienced or perceived her interactions with Dr. Fikry and her judgment and veracity at the time of her initial complaint in October 2015; (4) they may have information about prior physical or sexual trauma that may have affected her and the way she experienced her interactions and examinations by Dr. Fikry and that she either did not disclose to other physicians at CAMH or they did not have reasonable grounds to report to the College. Finally, as the CAMH records were generated at a time concurrent with the allegations at issue, they may provide an objective account of the unfolding of events and information that may corroborate or impeach on material points and the absence of complaints about alleged sexual abuse by Dr. Fikry may be relevant to the issues at the hearing.

[17] In summary, Dr. Fikry argues that the records will offer case-specific examples that will illustrate a link between Patient A’s addictions and her behaviour, including a propensity to fabricate, which is relevant to her reliability and credibility as a witness. Dr. Fikry submits that it is “essential in the interests of justice” that he be permitted to disclose and use the discharge summary in support of his third party records motion and in the Discipline Committee hearing in order to challenge Patient A’s reliability and credibility as a witness.

[18] Dr. Fikry takes the position that the privacy interests of Patient A are protected with a publication ban, that the parties are already in possession of the discharge summary, and that Patient A's alcohol and substance abuse issues and the fact that she sought treatment is already in the public record because of Patient A’s family law proceedings. Furthermore, Patient A would have some expectation that those records may be disclosed in these proceedings.

[19] Finally, the applicant submits that the factors set out in the Criminal Code, R.S.C. 1985, c. C-46 for third party records applications and considered in R. v. Mills, [1999] 3 S.C.R 668 do not apply to a motion for disclosure under the MHA, which is about protecting mental health records. Applications under s. 278 of the Code are exclusive to sexual assault cases and production of personal information at the production stage only and do not address the admissibility of personal information at trial: see R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 94.

[20] Counsel submits that there is nothing inherent in the MHA that calls for the use of the Mills factors. He argues that he is mindful of the Supreme Court’s directions in Mills and in R. v. Osolin, [1993] 4 S.C.R. 595 regarding the treatment of complainants in sexual assault cases and the need to consider privacy interests. He submits that he is not attempting to use outdated stereotypes or myths. Dr. Fikry submits that the evidence about S.J’s motive to fabricate, her prior history of making false allegations, and a prior fraud conviction relate to a pattern of behavior that discredits her credibility. He argues that disclosure of the discharge summary will allow him to access CAMH records before the Discipline Committee so that the Committee can adjudicate on the serious allegations being made.

Position of the College

[21] Counsel for the College emphasizes that the applicant seeks an order from the court under s. 35(9)(c) so that he can use confidential psychiatric records that he obtained without the patient’s consent. The record concerns a highly vulnerable person who alleges that she was sexually abused by Dr. Fikry. Counsel objects to Dr. Fikry attempting to use the record to undermine patient credibility and reliability before the Discipline Committee and to use the record in a motion before the Discipline Committee for production of more records regarding S.J from the psychiatric facility. She points out that Dr. Fikry has not been Patient A’s physician for more than two years and should not have received the record that he now wants to use.

[22] Counsel for the College submits that since 2004, the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A (“PHIPA”) governs collection, use, and disclosure of personal health information. Dr. Fikry collected the CAMH discharge summary within the meaning of PHIPA when he received it but was not permitted to use the summary as he did not receive it while carrying out his duties. Counsel submits that the MHA applies and governs the disclosure and use of the records. It provides a more onerous regime for especially sensitive information generated regarding patients in psychiatric facilities so that such information is only disclosed when it is “essential in the interests of justice” to do so.

[23] Counsel asks this court to find that it is not “essential in the interests of justice” that Dr. Fikry be permitted to utilize and disclose this record in a third party records motion or in his defence given that the complainant has a high expectation of privacy. Counsel submits that the cases cited by Dr. Fikry are of limited assistance in determining whether disclosure in a proceeding is “essential in the interests of justice” as they emphasize that, where the information sought is of central importance, any privacy interest is outweighed. Rather, the College argues that the concept of “essential in the interests of justice” is more than demonstrating relevance and also requires consideration of the privacy interest of the patient. Counsel asks the court to be mindful of the approach applied in College and other cases where there are allegations of sexual misconduct and requests for production of records from third parties. Counsel asks this court to use the same type of considerations outlined in s. 278 of the Code under s. 35(9) of the MHA because they are designed to balance the same kind of objectives. While counsel does not argue that all the factors in s. 278 should be transferred to the analysis under s. 35(9), she submits that this court needs to look beyond relevance to the privacy interests of the complainant.

[24] On May 30, 2017, s. 42.2(1) of the Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 came into force. It states:

Where, in relation to a hearing involving allegations of a member’s misconduct of a sexual nature, the member seeks an order of the panel of the Discipline Committee for the production and disclosure of a record that contains information for which there is a reasonable expectation of privacy from a person who is not a party to the hearing, any one or more of the following assertions made by the member are not sufficient on their own to establish that the record is likely relevant to an issue in the hearing or to the competence of a witness to testify:

5. That the record may relate to the credibility of the complainant or a witness.

6. That the record may relate to the reliability of the testimony of the complainant or a witness merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counselling.

While these factors are not directly applicable to s. 35(9)(c) of the MHA, counsel argues that they should inform the “essential in the interests of justice” analysis. Counsel also notes that s. 42.2(3) provides that in determining whether to grant an order for production of records, the panel is to consider the regulatory nature of the proceedings, the primary purpose of the proceedings, which is to protect the public and regulate the profession in the public interest, the privacy interest of the complainant or a witness in the record sought, and the nature and purpose of the record sought in the motion. Counsel submits that the same principles should apply in the test under the MHA.

[25] Ms. Kellythorne also takes the position that the records are not necessary to make full answer and defence. Dr. Fikry has the right to fully respond to the allegations and has a great deal of other evidence available to him. The probative value of the document is limited as it is dated July 2017 and Dr. Fikry was the treating physician from 2010 to 2015. The allegations are that sexual contact coincided with prescribing narcotics from 2010 to 2012. Furthermore, the reference to past psychiatric treatment is where she disclosed the abuse by her stepfather but the disclosure was not outlined in a detailed interview and the document was not intended to be used in legal proceedings as an exhaustive account of what occurred. Finally, the complainant has a high expectation of privacy in the record, which contains very sensitive information. Counsel argues that there is a societal interest in encouraging the reporting of and treatment for sexual abuse cases. For all of these reasons, she submits that the document sought is not essential in the interests of justice.

[26] Ms. Kellythorne notes that while she is counsel for the College and is not counsel for the complainant, it would be unrealistic to expect the complainant to retain counsel.

[27] Counsel points out that the MHA is not legislation about sexual abuse. Section 35(9) must be applied in the context of the purpose of the legislation and the term “essential in the interests of justice” must be considered in that context.

ANALYSIS AND THE LAW

The Legislative Framework

[28] The Mental Health Act is an Ontario statute which governs the rights and obligations of patients, former patients, out-patients, and former out-patients of a designated psychiatric facility. It has a comprehensive scheme for production and disclosure of mental health records.

[29] 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. The section outlines production of records prior to any substantive hearing on the merits (pre-hearing production) and addresses records not in a party’s possession, which can be summoned by a party in order for the court to examine and assess for the purposes of making a production order. Unless the patient’s physician states that production to the parties will likely result in harm to the patient or a third party, the officer in charge of the mental health facility is to disclose, transmit, or permit the examination of the record. The court or administrative body then can review the records and determine whether some or all of the records should be produced to the party. This provision is designed to address mental health records not in the possession of a party.

[30] Section 35(9) governs disclosure in a proceeding where a patient does not consent to the disclosure of protected information. Section 35(9)(c) requires the court to determine whether such disclosure is “essential in the interests of justice”.

[31] 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 intersection of the two statutes arises in this case. The provision in the MHA is more specific and relates to disclosure of records of patients in psychiatric facilities only.

[32] Section 35(9) of the MHA reads as follows:

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

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

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

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

Section 34.1 provides that:

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:

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:

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[.]

[33] 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 Association v. Toronto Police Services Board (2008), 2008 56714 (ON SCDC), 243 O.A.C. 104 (Div. Ct.), where Ray J., on behalf of the Divisional Court, wrote at para. 16:

Section 35 of the MHA attempts to balance competing interests. The section recognizes that mental health records may be relevant to the adjudication of certain matters and, therefore, should be disclosed to the parties to those matters. As such, the section permits the disclosure of mental health records in various circumstances where they may be relevant to a matter before a court or administrative tribunal. However, the section also protects the privacy interests of individuals in their mental health records by setting out the instances in which the records may be disclosed and the procedures that must be followed prior to disclosure. [Citations omitted.]

[34] 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.”

[35] 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.

[36] In the recent decision of Swinton J. who was also sitting as a single judge of the Divisional Court in Laity v. The College of Physicians and Surgeons of Ontario, 2018 ONSC 4557, 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).

[37] 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 use 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 motes were essential to the prosecution of the professional misconduct allegations.

[38] 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.

[39] 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 on 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.

[40] In submissions made with reference to the Laity decision, counsel for the applicant argues that the Divisional Court should not be applying the Mills factors on a s. 35(9) application even though the Discipline Committee may apply that test on a third party records motion. Counsel argues that that is even the case where the disclosure motion is being brought for the purpose of bringing a third party records motion. Counsel submits 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. Further, he submits 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.

[41] 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. Fikry received the discharge summary when he was no longer 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.

[42] In response, counsel for the applicant takes the position that it does not matter how the applicant obtained the records in question, namely that they came to his attention because they were sent to him in error by the psychiatric facility believing he was still the family physician of the applicant. Rather, because of the nature and seriousness of the issues, that credibility, reliability, and veracity of the former patient are in issue and that the records are relevant to matters in issue at the disciplinary hearing should determine that it is essential in the interests of justice that he be permitted to use and disclose the record.

[43] Counsel submits that Dr. Fikry is accused of extremely serious acts of sexual abuse of his former patient by having sexual intercourse and oral sex in exchange for prescriptions for medications. Since there is no corroborating evidence, the credibility and reliability of the evidence of the complainant are of central importance. Counsel submits that Dr. Fikry stands to lose his licence and under s. 72(3) of the Health Professions Procedural Code, be barred from re-applying for his licence for five years. In summary, it is essential in the interests of justice that in order for Dr. Fikry to be able to make full answer and defence to the serious allegations made that he be able to rely upon the discharge summary to obtain further records that will be put to use in the hearing. He submits that the ability to mount a vigorous defence in the face of such allegations that carry devastating consequences outweighs any privacy concerns that Patient A may have regarding the discharge summary.

[44] Counsel for Dr. Fikry takes the position that because the discharge summary is already in the possession of Dr. Fikry and the respondent, this court need only consider whether s. 35(9)(c) of the MHA applies and whether it is essential in the interests of justice that the records be disclosed. He points out that the cases relied upon by the respondent refer to third party production and that those cases are not relevant nor are the cases dealing with pre-hearing production.

[45] I agree with the College that s. 35(9) applies to information that is already in the possession of the party disclosing it. I do not accept the argument of the applicant that s. 35(9) applies to records in a party’s possession and simply because Dr. Fikry had received the discharge summary as the former physician of the patient and has it in his possession gives him the right to use or disclose the record. Having it in his possession does not allow him to make use of the record and disclose it without an application under s. 35(9): see Laity and R. v. A.(E.), 2003 CarswellOnt 3341 (S.C.), at para. 29, where the court referenced the principle discussed in Shearing that the factors in s. 278 would not apply where the issue is not one of production.

Is it “Essential in the Interests of Justice” that the Applicant Be Permitted to Disclose the Record?

[46] While the phrase “essential in the interests of justice” has not been considered extensively by the courts, there is some jurisprudence interpreting similar provisions.

[47] For example, in the case of R. v. Bernardo (1997), 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 “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 interests of justice encompass broad based societal concerns and the more specific interests of a particular accused.

[48] In Ahmed v. Stefaniu (2004), 72 O.R. (3d) 590 (S.C.), 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 use 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.

[49] Cullity J. held that the 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. “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.

[50] In the case of Michener Institute for Applied Health Sciences v. Musa, 2009 CarswellOnt 8016 (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 make reference to the other considerations such as the privacy interest of the patient or the societal interest in disclosure. In the leading case of Palmer v. The Queen, [1980] 1 S.C.R. 759, 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:

(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.

[51] Counsel for the applicant and counsel for the College each argue that certain procedures and principles from the criminal law context 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. 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), at p. 13. The context of the proceeding is an important consideration. That concept was discussed by McLachlin J. in A.M. v. Ryan, [1997] 1 S.C.R. 157, 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:

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.

[52] 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 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.

[53] While I am not deciding the issue that will be before the Discipline Committee as to whether to order the production of third party records or on the hearing itself to admit in evidence the discharge summary and records as evidence at the hearing, 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 use of highly sensitive and confidential records to only certain circumstances.

[54] 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 wishes to make the best case for production of the CAMH records. He hopes to be able to demonstrate from them that substance abuse and the mental and physical condition of Patient A is linked to conduct involving dishonesty or impaired perception and cognition. He also hopes to demonstrate that Patient A had a motive to fabricate the allegations against Dr. Fikry (to retaliate against his compliance with a court order to produce records) and that she showed a pattern of conduct of making false allegations against others, which would discredit her testimony. Further, he wishes to argue that Patient A has a criminal record for fraud, which is a crime of dishonesty. He hopes to be able to use this information to test Patient A’s credibility and reliability at the Discipline Committee hearing.

[55] 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. Fikry in making full answer and defence to the allegations: see R. v. Chaplin, [1995] 1 S.C.R. 727, 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.

[56] In the case of R. v. Coon (1991), 74 C.C.C. (3d) 146 (Ont. C.J. (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:

In determining what is essential in the interests of justice the court will attempt to strike a balance as Donnelly J. stated in Regina 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.

[57] Then J. outlined a list at p. 157 of some factors that may be considered as to whether a sufficient foundation has been established. While the decision arose in a criminal proceeding and 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; (5) criminal antecedents of the witness; (6) the mode of life or other discreditable conduct which may tend to discredit testimony; (7) evidence of bizarre or incompetent behavior.” The context and potential role this information may play in the proceeding is a critical consideration. The non-exhaustive list of factors emphasizes the relevance of the evidence.

[58] Counsel for the College points out that this case pre-dated the Criminal Code amendments and the Supreme Court of Canada decisions of R. v. O’Connor, [1995] 4 S.C.R. 411 and R. v. Mills. While the factors are helpful in providing guidance to the court on the concept of “in the interests of justice”, counsel submits that they fail to encompass the considerations now recognized as critical concerning the patient’s privacy interests.

[59] 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. After O’Connor, Parliament enacted amendments to s. 278 of the Criminal Code that set out a series of factors for the court to take into account in 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.

[60] 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 discussed 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 ONCA 712, 417 D.L.R. (4th) 133, at para. 58; College of Physicians and Surgeons of Ontario v. McIntyre, 2017 ONSC 116 (Div. Ct.), at para. 34; Ontario (College of Physicians and Surgeons of Ontario) v. Billing, 2017 ONCPSD 30, at p. 8; Penetanguishene Mental Health Centre v. Stock (1994), 116 D.L.R. (4th) 550 (Ont. C.J. (Gen. Div.)), at paras. 9-10.

[61] Dr. Fikry 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 & Surgeons (Ontario) v. Au (2005), 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 interest 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. the 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 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 under a disclosure application under the MHA.

[62] 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.

[63] 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.

[64] 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. In the context of these proceedings, there is a strong public interest in avoiding the effect on complainants that could occur if sensitive records from a psychiatric facility are permitted to be used to attack the complainant. Ms. Kellythorne relies on the words of McLachlin J. in A.M. v. Ryan, at para. 36, to support this view.

[65] Ms. Kellythorne argues further that amendments to s. 42.2 of the Health Professions Procedural 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.

[66] 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 and to encourage the reporting of abuse, to enhance support to those who have experienced sexual abuse, and to prevent sexual abuse of patients by registered health professionals. 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.

[67] The question that I must address is whether disclosure is “essential in the interests of justice.” I first consider the question of relevance. I agree with counsel for Dr. Fikry that the discharge summary that references information in the psychiatric records including the history and diagnosis of medical conditions of Patient A and references to substance abuse, psychiatric diagnosis, and the effects of a stroke are critical to a consideration of the allegations made and her 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. While the date of the discharge summary is not proximate in time to the date of the alleged misconduct or when Patient A reported the complaints to the College, the discharge summary would allow Dr. Fikry to make the case for production of the CAMH records and it is important to making full answer and defence.

[68] 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 after five years. While these are not penal consequences 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 than to a civil action. 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 a collateral issue. In my view, their potential use is not for the purposes of a fishing expedition.

[69] While I certainly recognize that the disclosure of the records is a significant invasion of Patient A’s privacy, I am of the view that these records outline medical and other conditions that may be relevant to the issues before the Discipline Committee. I find that Dr. Fikry requires the ability 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.

[70] Again, while I certainly am mindful that to disclose such 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 of the name of the complainant and information that could identify her.

[71] 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 the Discipline Committee to decide whether to order production on a motion and whether to permit the records to be admitted at the hearing.

[72] Again, the fact that Dr. Fikry already had the discharge summary in his possession in no way lessens the test for determining whether disclosure should be granted. Having engaged in a balancing exercise in determining whether disclosure of the psychiatric records should be ordered under s. 35(9) of the MHA, I conclude that, in the context of these proceedings, it is “essential in the interests of justice” to order the disclosure of the records for the reasons outlined above. The privacy interests of the complainant will be protected through a publication ban and with other procedures available to the Discipline Committee to protect the identity of Patient A

RESULT

[73] 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 Patient A is prohibited. For the reasons outlined above, I conclude that disclosure of the discharge summary is ordered under s. 35(9) of the MHA as it is “essential in the interests of justice” that disclosure be made in the proceedings undertaken by the College of Physicians and Surgeons.

[74] In making this decision, of course, I do not make any determination on whether the evidence that Dr. Fikry intends to lead by using the discharge summary and records which he hopes to have produced should be admitted before the Discipline Committee or that, if such evidence is admitted, what weight should be attached to it. The ultimate issue of credibility and reliability of a witness’ evidence will be for the Discipline Committee to decide.

[75] In accordance with the agreement of the parties, there will be no order as to costs.

Himel J.

Released: December 28, 2018

CITATION: Fikry v. College of Physicians and Surgeons of Ontario, 2018 ONSC 7744

DIVISIONAL COURT FILE NO.: 223-18-JR DATE: 20181228

ONTARIO

SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

DR. SAMEH ADLY FIKRY Applicant

– and –

COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO Respondent

REASONS ON APPLICATION PURSUANT TO S. 35(9) OF THE MENTAL HEALTH ACT, R.S.O. 1990, c. M.7

Himel J.

Released: December 28, 2018