CITATION: Law Society of Ontario v. A.B., 2020 ONSC 1410

DIVISIONAL COURT FILE NO.: 162/19 DATE: 20200304

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

B E T W E E N :

LAW SOCIETY OF ONTARIO

Applicant

– and –

A.B.

Respondent

Joshua Elcombe and Leslie Maunder for the Applicant

Angela Ruffo for the Respondent

HEARD at Toronto: February 11, 2020

PUBLICATION BAN

Pursuant to section 35(9)(c) of the Mental Health Act, R.S.O. 1990, c. M.7, no person shall publish or broadcast the names or identities of any patients or any information that could disclose the identity of any patient referenced in the Court's reasons for judgment in this matter.

FAVREAU J.:

Introduction

1The Law Society of Ontario has brought a proceeding before the Law Society Tribunal Hearing Division (the “Tribunal”) concerning the respondent's capacity to practice law.

2The Law Society obtained a report from a forensic psychiatrist, Dr. Michael Colleton, for the purpose of the capacity hearing. Dr. Colleton reviewed the respondent's psychiatric records prior to preparing the report and he refers to them in his report.

3The Law Society brings this application pursuant to section 35(9) of the Mental Health Act, R.S.O. 1990, c. M.7, for the purpose of making the psychiatric records reviewed by Dr. Colleton available to the Tribunal at the capacity hearing.

4The respondent opposes the application on the basis that the Law Society has not demonstrated that the disclosure of the records "is essential in the interests of justice" as required by section 35(9) of the Mental Health Act.

5For the reasons that follow, I find that disclosure of the records is essential to the capacity proceedings before the Law Society Tribunal, and an order is granted as set out in the conclusion below.

Relevant statutory provisions

6Section 38 of the Law Society Act, R.S.O. 1990, c. L.8, authorizes the Law Society to apply "for a determination by the Hearing Division of whether a licensee is or has been incapacitated".

7Section 37(1) of the Law Society Act defines incapacity as follows:

A licensee is incapacitated for the purposes of this Act if, by reason of physical or mental illness, other infirmity or addiction to or excessive use of alcohol or drugs, he or she is incapable of meeting any of his or her obligations as a licensee.

8Section 35 of the Mental Health Act governs the disclosure of mental health records. Section 35(9) provides that, absent consent of the patient, the disclosure of mental health records in a proceeding requires an order of this Court:

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

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

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

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

Background facts

9The respondent was called to the Ontario bar in 2017. In 2018, he responded to an anonymous survey conducted by the Law Society. A number of the responses provided by the respondent were extremely self-disparaging and contained threatening language.

10The Law Society was able to identify the respondent through its records, and then commenced an investigation into his capacity.

11As part of the investigation, an investigator with the Law Society met with the respondent. The respondent told the investigator that he had previously been hospitalized for psychiatric treatment. The Law Society asked the respondent for consent to obtain his medical records. The respondent initially refused.

12The Law Society then requested that the respondent participate in a psychiatric examination.

13After some back and forth, the respondent consented to the psychiatric examination. He also consented to making his medical records available for the purpose of the assessment. However, the respondent explicitly stated that he did not consent to his personal medical history becoming a matter of public record or that it be used as evidence against him in a capacity proceeding.

14Ultimately, the Law Society and the respondent agreed that the respondent's psychiatric records would be provided directly to the psychiatrist who conducted the assessment.

15Dr. Colleton conducted the psychiatric assessment. He interviewed the respondent in person and over the telephone. He reviewed documents provided by the Law Society, including emails between the respondent and the Law Society and transcripts of voice mail messages the respondent left with Law Society staff.

16As part of the assessment, Dr. Colleton also reviewed the medical records he received from a number of psychiatric facilities. The records showed that the respondent had been admitted to psychiatric facilities six times between 2011 and 2014, and that he also received outpatient care in that time period.

17Dr. Colleton released his report on November 7, 2018. In the report, Dr. Colleton described the psychiatric records he reviewed, his interviews with the respondent and the documents provided by the Law Society.

18Dr. Colleton diagnosed the respondent as suffering a severe cannabis use disorder and a chronic psychotic disorder. He also expressed concerns about the respondent's ability to provide legal services due the effect of his conditions on his judgment. Finally, Dr. Colleton provided advice on steps required to manage the respondent's mental health issues, stating that the prognosis was reasonably good if the respondent discontinued the use of cannabis and obtained proper treatment.

19Following the receipt of Dr. Colleton's report, the Law Society brought a motion before the Tribunal to temporarily suspend the respondent's licence. The Law Society also brought a capacity application to the Tribunal pursuant to section 38(1) of the Law Society Act.

20For the purposes of the interlocutory motion, the Law Society redacted Dr. Colleton's report, removing the portions of the report that refer to the respondent's psychiatric records.

21At the initial hearing date, the Tribunal adjourned the motion to allow the respondent to retain counsel and to require Dr. Colleton to attend the hearing as a witness.

22At the subsequent hearing date, the respondent was represented by counsel and Dr. Colleton appeared as a witness. During Dr. Colleton's cross-examination, he objected to answering questions without referring to his full report or the respondent's psychiatric records because he was concerned that his answers would inevitably draw on a combination of his interviews with the respondent and his review of the psychiatric records. The motion was adjourned a second time to give the respondent an opportunity to decide whether he would consent to the disclosure of his psychiatric records in the proceeding. At that time, the Tribunal imposed an interim requirement that the respondent could only practice law as an employee and under the supervision of a lawyer approved by the Law Society.

23The respondent subsequently advised that he did not consent to the disclosure of his psychiatric records but that he would forego any further cross-examination of Dr. Colleton.

24The hearing resumed on that basis. After hearing submissions from the parties, the Tribunal did not impose an interlocutory suspension, but instead continued the requirement that the respondent could only practice law as an employee and under the supervision of a lawyer approved by the Law Society. This restriction is to apply until the conclusion of the capacity hearing.

25The Law Society now brings an application to this Court pursuant to section 35(9) of the Mental Health Act to make the psychiatric records reviewed by Dr. Colleton available at the capacity hearing.

26At the direction of the Associate Chief Justice, the application was directed to be heard by a single judge pursuant to section 6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.

Analysis

27Given that the respondent does not consent to the disclosure of his psychiatric records for the purpose of the capacity hearing, section 35(9)(c) of the Mental Health Act applies. In accordance with the wording of the provision, this Court can only permit the disclosure of the records for the proceeding if "the disclosure is essential in the interests of justice".

28The Law Society argues that the respondent's mental health records are required for the capacity hearing because of the important public interest in protecting members of the public from lawyers who are incapable. The Law Society also argues that any specific concerns about confidentiality can be dealt with by the Tribunal. The Law Society does not seek an order that all the respondent’s psychiatric records be made available at the capacity hearing, but rather an order restricted to the following terms:

a. That Dr. Colleton’s complete report be disclosed in the proceedings before the Tribunal:

b. That Dr. Colleton be permitted to refer to the psychiatric records as he wishes during the hearing before the Tribunal; and

c. That the Law Society be permitted to rely on the psychiatric records if the respondent contradicts statements in Dr. Colleton’s report that are addressed in the records.

29The respondent does not disagree with the important public interest at stake, but argues that the records are not "essential" to determining his capacity to practice as a lawyer for the following reasons:

a. The respondent voluntarily provided sufficient information about his psychiatric admissions during the interviews with Dr. Colleton, and therefore the full psychiatric records are not necessary for the hearing;

b. At the capacity hearing, the issue will focus on the respondent's current capacity to practice as a lawyer whereas the psychiatric records date back to 2011-2014; and

c. The cases in which this Court has granted disclosure of psychiatric record under section 35(9)(c) of the Mental Health Act involve situations where the applicant’s liberty interests or livelihood were at issue, which is the not the case here.

30In addition, the respondent argues that the Tribunal's power to control public access to the respondent's psychiatric records is irrelevant given that he cannot know in advance how the Tribunal will exercise those powers.

31In Laity v. The College of Physicians and Surgeons of Ontario, 2018 ONSC 4557 (Div. Ct.), at para. 6, Swinton J. described the test to be applied under section 35(9)(c) of the Mental Health Act as follows:

The task of 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 interests of justice…

32From this, I find that the factors to be considered in deciding whether disclosure is essential in the interests of justice are as follows:

a. The relevance and probative value of the records;

b. The importance of the records to the capacity hearing; and

c. The respondent's privacy interests in the information.

33Weighing these factors together, I find that it is essential in the interests of justice for the records at issue in this case to be made available for the respondent’s capacity hearing.

The relevance and probative value of the records

34In Balasuriya v. College of Physicians and Surgeons of Ontario, 2018 ONSC 7743 (Div. Ct.), at para. 65, Himel J. held that there must be a “reasonable possibility” that the records sought pursuant to section 35(9) of the Mental Health Act will be relevant.

35In this case, there is no doubt that the respondent’s psychiatric records are relevant. Dr. Colleton refers extensively to the psychiatric records in his report, and relies on those records in formulating his opinion about the respondent’s conditions, the impact of his conditions on his judgment and his prognosis. The issue before the Tribunal will be whether the respondent has the capacity to practice law. The respondent’s recent psychiatric history is relevant to this issue.

The importance of the records to the capacity hearing

36Given the requirement in section 35(9) of the Mental Health Act that the records be “essential”, relevance on its own is not enough. As held in Balasuriya, at para. 64, the records must also be “important”. From the cases dealing with this provision, there appear to be two facets to the notion of importance. First, the issue at stake in the proceeding must be important and, second, the records must be important to the determination of that issue.

37In my view, the stakes here are very important, and the records are necessary to the determination of the issue.

38As referred to above, the respondent’s counsel argues that the cases in which the Court has granted access to psychiatric records pursuant to section 35(9) of the Mental Health Act involve situations where a party’s liberty or livelihood interests are at stake. For example, in R. v. Coon, 1991 11746 (ON SC), [1991] O.J. No. 3766 (Gen. Div.), the Court ordered the disclosure of a complainant’s psychiatric records in the context of a criminal prosecution. In Laity, Balasuriya and Fikry v. College of Physicians and Surgeons of Ontario, 2018 ONSC 7744 (Div. Ct.), the Court ordered the disclosure of the complainants’ psychiatric records in the context of disciplinary proceedings involving allegations of sexual assaults against physicians. The respondent’s counsel suggests that the interests at stake in those cases are more important than in this case. I do not agree.

39Part of the Law Society’s mandate is to protect members of the public from lawyers who do not have the capacity to practice law. Therefore, the stakes in a capacity hearing are very high. They involve the protection of the public from individual lawyers who may not have the capacity to practice law, and they relate more generally to the public’s confidence in the legal profession and the administration of justice. In Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513, at para. 36, the Supreme Court of Canada emphasized the important role played by regulatory bodies in protecting the public:

This Court has noted on many occasions the crucial role that professional orders plain protecting the public interest. As McLachlin J. stated in Rocket v. Royal College of Dental Surgeons of Ontario, 1990 121 (SCC), [1990] 2 S.C.R. 232, “[i]t is difficult to overstate the importance in our society of the proper regulation of our learned professions” (p. 249). The importance of monitoring competence and supervising the conduct of professionals stems from the extent to which the public places trust in them. Also, it should not be forgotten that in the client-professional relationship, the client is often in a vulnerable position…

The privilege of professional self-regulation therefore places the individuals responsible for enforcing discipline under an onerous obligation. The delegation of powers by the state comes with the responsibility for providing adequate protection for the public. Finney confirms the importance of properly discharging this obligation and the seriousness of the consequences of failing to do so.

40The respondent also argues that, even if the stakes are important, the specific records at issue in this case are not necessary for the capacity hearing because they are a few years old and the respondent has voluntarily disclosed his psychiatric history to Dr. Colleton and the Law Society. The respondent argues that it is therefore not necessary for the Tribunal to have access to the deeply personal and potentially embarrassing details contained in his historic psychiatric records. Again, I do not agree.

41With respect to the time period covered by the records, as indicated above, they relate to hospitalizations and treatment from 2011 to 2014. The end of this period is only four years before the respondent came to the Law Society’s attention through his responses to the survey. More importantly, the diagnoses contained in those records are the same as the those reached by Dr. Colleton. Therefore, the respondent was treated for the same issues a few years ago. This history informed Dr. Colleton’s opinion. In addition, the Tribunal’s ability to understand the persistence and progress of these conditions will be important to the Tribunal’s determination of the respondent’s capacity to practice law and any conditions that should be imposed on his practice.

42There are two problems with the respondent’s additional argument that the records are not necessary because the respondent disclosed his psychiatric admissions to Dr. Colleton during their meetings, and, therefore, his psychiatric history is available without the records. First, Dr. Colleton has already made clear that he is not willing to testify without being able to refer to the psychiatric records. In addition, there appear to be some discrepancies between the respondent’s description of his psychiatric history and the information contained in the records. For example, the respondent told Dr. Colleton that he has no history of violence, but the psychiatric records refer to at least one incident of aggression toward another person. In the circumstances, I am not satisfied that the respondent’s disclosure of his prior psychiatric admissions and treatment is sufficient to permit the Tribunal to properly adjudicate the issue of capacity.

43Accordingly, I am satisfied that the stakes at the capacity hearing are important and that the records at issue are important to the determination of the issue.

The respondent's privacy interest in the information

44There is no doubt that the respondent’s privacy interest in his psychiatric records is very high. There are extensive records that cover several hospitalizations. The portions of Dr. Colleton’s report that refer to the records are detailed and make reference to the circumstances leading to the hospitalizations and to deeply personal aspects of the respondent’s life.

45However, as explained, at para. 168, in Sazant v. The College of Physicians and Surgeons, 2011 ONSC 323 (Div. Ct.); aff’d 2012 ONCA 727, “the choice to join a profession is a choice to give up a high expectation of privacy with respect to any matters having to do with the regulatory needs of the profession”. Accordingly, while the respondent has a high privacy interest in his psychiatric records, his expectation of privacy is lowered because of his membership in a regulated profession.

46Before concluding on this issue, I want to address the argument raised by the Law Society that concerns over the respondent’s privacy are lowered because the Tribunal has a number of mechanisms available to control the public’s access to the evidence at the hearing. Specifically, the Tribunal’s Rules of Practice and Procedure provide that, in appropriate circumstances, the Tribunal has the power to make an order closing a hearing to the public, ordering that evidence at a hearing not be made public or ordering a publication ban. In addition, since January 1, 2020, the Tribunal’s Rules include a requirement that, in the context of a capacity hearing, where an order is sought restricting disclosure or public access, the Tribunal is to consider a number of specific factors, including “any stigma related to the nature of the licensee’s health issues”.

47The difficulty with this argument is that it will be up to the Tribunal, and not this Court, to determine the extent to which the public may have access to the records or the information in the records. More significantly, it is evident that the Tribunal’s own case law demonstrates that there is no guarantee that the Tribunal will in fact restrict access to the information, even if it is very sensitive. In particular, the Tribunal is less inclined to restrict public access to information where the information is closely tied to the issue to be determined: see, for example, The Law Society of Upper Canada v. Margaret Anderson-Clarke, 2016 ONLSTH 30, at para. 27; and Adam Berry Sheps v. The Law Society of Upper Canada, 2016 ONLSTH 124, at paras. 99-100

48Ultimately, it will be up to the Tribunal to decide whether to restrict access, and therefore, I have not taken these powers into consideration in determining whether disclosure of the records is essential in the interests of justice.

49Nevertheless, the specific order sought by the Law Society does contain some restrictions on the extent of the disclosure and potential use of the respondent’s psychiatric records. The Law Society only asks that Dr. Colleton’s complete report, including all references to the respondent’s psychiatric records, be made available. Otherwise, the psychiatric records are only to be made available as necessary for the purpose of Dr. Colleton’s testimony and for the purpose of addressing any evidence or arguments made by the respondent that are contradicted by the psychiatric records.

50Accordingly, while I recognize the significant privacy interest the respondent has in these records, his expectation of privacy is diminished given that he is licensed as a lawyer and therefore subject to the Law Society’s authority to ensure that he is capable of practicing law.

51In conclusion, I find that it is necessary in the interest of justice for the respondent’s psychiatric records to be available for the capacity hearing on the terms set out below.

Conclusion

52For the reasons above, the Law Society's application is granted. I make the following order, which is essentially the order sought by the Law Society, with some wording modifications:

a. This Court orders that the complete report of Dr. Michael Colleton dated November 7, 2018, may be disclosed in the proceeding before the Law Society Tribunal regarding the respondent’s capacity to practice law.

b. This Court orders that Dr. Colleton is permitted to refer to the respondent’s psychiatric records he received and reviewed in preparing his report during his testimony at the Law Society Tribunal hearing.

c. This Court orders that, if the respondent challenges the basis for, or contradicts, statements in Dr. Colleton’s report or his testimony, then the psychiatric records relating to the dispute may be disclosed in the capacity proceeding.

d. This order does not affect the Law Society Tribunal’s authority to determine the admissibility of evidence or to restrict public access to Dr. Colleton’s report or the respondent’s psychiatric records in the proceeding regarding the respondent’s capacity to practice law.

53As agreed between the parties, there shall be no costs.

FAVREAU J.

RELEASED:

CITATION: Law Society of Ontario v. A.B., 2020 ONSC 1410

DIVISIONAL COURT FILE NO.: 162/19