Maini v. Health Professions Appeal and Review Board, 2021 ONSC 5750

CITATION: Maini v. Health Professions Appeal and Review Board, 2021 ONSC 5750

DIVISIONAL COURT FILE NO.: 037/20

DATE: 20210826

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: MAINI v. HEALTH PROFESSIONS APPEAL AND REVIEW BOARD

BEFORE: D.L. Corbett J.

COUNSEL: Penelope Ng, for the College of Physicians and Surgeons of Ontario David Jacobs, for the HPARB Valerie Wise and Mina Karabit, for Dr Maini

HEARD: By ZOOM at Toronto on August 25, 2021

ENDORSEMENT

[1] The CPSO moves for an order sealing patient records of the complainant in this physician’s appeal of a decision of the HPARB.

[2] The argument on the motion was framed by the CPSO as an important matter of principle in light of recent changes to the common law and increased use of electronic record-keeping by the court as a result of measures taken during COVID-19.

[3] With respect, this is not the case, this is not the time, and this is not the place, to be trying to settle these issues of principle at first instance.

[4] The records in question are those of the complainant. The underlying complaint concerns treatment of ophthalmological issues. Doubtless the complainant has a privacy interest in her medical records. There is nothing in these records, in this case, however, that raise privacy concerns beyond the general interest that attaches to any confidential patient health information.

[5] The complainant was given notice of this proceeding and of this motion. She has chosen not to participate and has not expressed views or concerns respecting inclusion of her health records in the public record of these proceedings. In the proceedings below, the complainant was told that her patient records could end up before the HPARB in a public proceeding, and in the absence of evidence to the contrary, it can be presumed that she went ahead knowing that her records could end up in the public domain.

[6] Notice of this motion was given to the press in accordance with the court’s current Notice to Profession. No member of the press has sought to participate in this motion or raised objection to the order sought.

[7] The order sought in this proceeding will not keep the patient records from the court or from the parties for the purposes of argument of the application on the merits. Counsel argues that the order sought will not limit written or oral argument, and that information gleaned from the patient records may be presented in open court and members of the public will be able to hear and read those arguments. On this argument, some details in the patient records would not be available to the public, but much of the substance of the records would be disclosed to the public during oral and written argument.

[8] The CPSO did not seek a sealing order at the Board, and so the patient records can now be accessed from the HPARB file – though the parties disagree as to the process that would be involved in trying to access documents in that way: access to HPARB files is subject to new processes and principles in light of this court’s prior jurisprudence, recent legislative amendments, and the Supreme Court of Canada’s decision in Sherman Estate.

[9] The responding parties challenged the CPSO’s standing to raise these issues in this court. It is true that the complainant would also have standing, but that does not mean that the CPSO lacks standing. HPARB argued that CPSO is able to raise this issue before the HPARB – at the time the CPSO files its Record with the HPARB (and perhaps at other times as well). That being the case, it would be open to the CPSO to appeal or seek review of an HPARB decision on the issue at first instance. The real objection, I conclude, is that CPSO cannot raise the issue in this court if it has not first raised it before the HPARB. This is not an argument about standing but about the principle that the parties must raise their issues below before bringing them to this court.

[10] Court documents are currently provided to this court by uploading them to CaseLines. This process was introduced as an ad hoc measure to facilitate continued operation of the justice system during the COVID-19 crisis. There is no evidence before the court that these ad hoc measures have given rise to issues requiring changes to the analysis used when protective orders are sought. I do not accept that this court should extend principles in existing legislation and jurisprudence in response to an apprehension, unsupported by any evidence, that there is now greater risk of misuse of information in court files because of the court’s current ad hoc use of technology. It can be anticipated that some of the technological innovation developed during COVID-19 will be adopted in the long-term – concerns about protecting sensitive information in court files may be addressed during the process through which long-term changes to court operations are adopted and, of course, after implementation if problems arise.

Decision

[11] This court is concerned about developing processes and principles in this court to address regular requests for protective orders. However, this is not the case in which to embark on those tasks. The HPARB is a public tribunal. It controls its own processes. The place to seek a protective order, at first instance, is before the HPARB. This was not done in this case, and I would not grant the requested order where the issue was not pursued at first instance before the HPARB. Further, it is for the HPARB to develop its own jurisprudence and practices on these issues – one of the roles assigned to the HPARB by the Legislature: this is a developing area of the law, and HPARB should be accorded its role in deciding these issues at first instance.

[12] I so decide in the circumstance of this particular case. The complainant has raised no issue about the disclosure. The records themselves are “bland” (as described by counsel for Dr Maini) and do not appear to be more sensitive than any personal health records. There is no apparent public interest in the complainant or her health records, nor is there any basis to suppose that this will change. In my view, no circumstances exist that militate against the principle that this court will not permit parties to raise issues that were not raised at first instance before the tribunal below.

[13] The motion is dismissed. There shall be no order as to costs.

[14] The parties shall settle a schedule for exchange of appeal materials and provide that schedule to the court by email by September 10, 2021 for approval by case management direction.

___________________________ D.L. Corbett J.

Released: August 26, 2021