CITATION: Bulakhtina v. Complaints Committee of the Death Investigation Oversight Committee, 2022 ONSC 4068
DIVISIONAL COURT FILE NO.: 608/21 DATE: 20220715
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
DR. ELENA BULAKHTINA
Amani Oakley, for the Applicant Dr.
Bulakhtina
Appellant
– and –
COMPLAINTS COMMITTEE OF THE
Alexandra Clarke and Stephanie Figliomeni,
DEATH INVESTIGATION OVERSIGHT
for the Respondent DIOC
COUNCIL and DR. MICHAEL
POLLANEN
Jonathan Shime, for the Respondent Dr.
Pollanen
Respondents
Heard by Zoom in Toronto: May 26, 2022
REASONS FOR DECISION[^1]
D.L. Corbett J.
[1] These motions concern the proper record to be placed before the court on the application for judicial review brought by Dr Bulakhtina from the decision of the DIOC declining to investigate further her complaint against Dr Pollanen.
[2] The proper record before this court is the Record that was before the DIOC. Dr Bulakhtina argues that some of the materials placed before the DIOC by Dr Pollanen ought not to have been before the DIOC. This is akin to an argument that a trial judge wrongly admitted items into evidence at a trial. The merits of that argument - that certain evidence ought not to have been received - is a matter to be raised before a panel of this court on the merits of the application for judicial review. It is not a matter to be raised before a single judge on a motion in advance of the hearing. Dr Bulakhtina's motion to strike portions of the record considered by the DIOC is dismissed, without prejudice to her argument on the underlying application that the DIOC was unreasonable or procedurally unfair in receiving and considering these materials.
[3] A secondary question arises concerning materials provided to the DIOC by Dr Pollanen, but not reviewed or considered by the DIOC. There are two ways to view these materials.
[4] First, these materials could be considered analogous to evidence tendered by a party which the tribunal has declined to receive into evidence. A party may wish to argue that the tribunal should have received and considered these materials, in which event the materials need to be placed before this court, as part of the record of the evidentiary ruling. By analogy (again to a trial), it is akin to a situation where a party tenders evidence and the court rules the evidence inadmissible. That ruling may be reviewed on appeal or judicial review, and a copy of the tendered evidence (if it is evidence such as a document) may be necessary for this court to conduct that review. Where, for example, a trial judge marks a document not received into evidence as Exhibit "A", for identification, but not as a numbered trial exhibit, it may be provided to a reviewing court as a document not received into evidence.
[5] Second, these materials could be viewed as part of the record before the DIOC that the DIOC did not find it necessary to review. Again by way of analogy, where foundation documents are placed in evidence, which support another piece of evidence, the trier of fact is not expected to minutely review the foundation documents. Where, for example, financial statements are provided, and the source documents for some of the entries in the financial statements are placed into evidence as well, the court will not generally go back to the source documents unless directed there by a witness or counsel, or to review an item of concern in the financial statements.
[6] In this case I am inclined to the preliminary view that the documents provided by Dr Pollanen that were not reviewed by the DIOC do not form part of the record - that is, that they fall into the first characterization. If I am correct in this characterization, there will be no need for the panel to have these documents available for the hearing. However, to ensure that all necessary materials are before the panel, in case the panel takes a different view of this issue, I direct that these materials be provided to the court in a sealed envelope (and electronically by way of a drop box) and be subject to the following direction:
"The enclosed/attached materials have been ordered sealed by order of D.L. Corbett J. on the basis that they do not appear to form part of the Record and thus are not material to the application. This finding is without prejudice to any party arguing before the panel that the documents should be unsealed and considered by the panel at the hearing, on such terms as may be just."
The panel should be advised that the drop box is considered sealed and its contents should not be accessed unless the panel, in its discretion, orders otherwise.
[7] Finally, there is the issue of redactions to the record.
[8] The redactions sought by the DIOC are on consent. I am satisfied that the consented redactions meet the test in Sherman Estate, for the reasons set out in DIOC's factum.[^2] It is consistent with this court's prior order in Turner v. DIOC, 2021 ONSC 6625. Order to go for these redactions, as sought by the DIOC.
[9] In my view the question of whether the redactions requested by Dr Bulakhtina should be granted ought to be decided by the panel in the unusual circumstances of this case. I so conclude for the following reasons.
(1) Dr Bulakhtina challenges the propriety of Dr Pollanen obtaining and disclosing personal information about her to the DIOC. She did not have a chance raise this challenge before the DIOC because, she says, she was unaware that it had been done until she received the decision of the DIOC.
(2) Dr Bulakhtina's opportunity to seek redress in this court, if her argument is correct, will be curtailed if all of the impugned materials are made public during the course of this court's process. By way of analogy, where the Information and Privacy Commissioner rules that certain documents not be produced, it would defeat the Commissioner's process and ruling to require production of the impugned documents in the court's public record. This analogy is a loose one - the production of the impugned documents in this case was not the subject-matter of the proceeding below. However, it is part of the process of this application.
(3) In my view, Dr Bulakhtina is entitled to pursue an argument before this court that materials provided to the DIOC by Dr Pollanen ought not to have been provided to or considered by the DIOC. To place these documents in the public record permanently as the price for arguing that the documents ought not to be part of the case at all, would be unfair to Dr Bulakhtina.
[10] For these reasons I grant Dr Bulakhtina's order for redactions to the record, on an interim basis, to continue until the decision of the panel on this application. If the order is not continued or replaced by another order from the panel, it will expire upon delivery of the panel's decision.
[11] If the parties have any difficulty sorting out the scope of this direction or the appropriate manner in which to implement it, they may seek further directions from me in writing. Otherwise, they may provide a draft order to effect this direction.
[12] Finally, I note that the applicant's argument in favour of the additional redactions failed to address the key questions in this court on such a motion. The DIOC did not grant a partial sealing order, so the issue comes to this court as a de novo determination of the request for a sealing order. While a moving party must establish that there is an important privacy interest at stake, that is not where the issue begins and ends. Generally, establishing the privacy interest is the first and easiest step in the process - parties are seldom asking the court to seal information in respect to which there is no privacy interest. The real concern is meeting the test in Sherman Estate, and it is around that test that a request for a sealing order should be framed. Here, there is little doubt that Dr Bulakhtina's personal health records, for example, are records in respect to which she has an important privacy interest. However, courts must frequently receive and consider such records for the purpose of litigation. It is not the case that there is a prima facie entitlement to have these records sealed, just because there is an important privacy interest engaged. Where, for example, a plaintiff in a tort action is seeking damages for their injuries, public disclosure of those injuries, and the medical records pertaining to them, is a necessary part of the process, and an inherent price to be paid for litigating the issue in a public courtroom.
[13] Here, the first argument from the applicant is that (a) she has a protected privacy interest in the impugned materials; (b) the impugned materials were tendered to the DIOC in breach of relevant statutory instruments and her protected privacy interests; and (c) the DIOC ought not to have received and considered these materials, and so the materials should not have been part of the record below. The applicant meets the test in Sherman Estate on an interim basis because she should not be required to forego her privacy interests in order to assert them in this court.
[14] If the impugned documents were properly tendered in response to her complaint, to obtain a sealing order she would have to persuade the court that the open court principle should give way to protect her privacy interests, pursuant to the test in Sherman Estate. Her argument on this motion emphasized the statutory protections that apply to the impugned information. If these materials were properly before the DIOC, establishing a privacy interest is just the first step of the analysis. The open court principle frequently requires that information that is private in nature, such as medical records, must be disclosed publicly. The applicant is cautioned that she needs to address the other factors in the test in Sherman Estate if she decides to pursue this aspect of her sealing order request before the panel: I have not found it necessary to decide the issue now, in light of the interim order I have made based on the applicant's first argument.
[15] Order accordingly. There shall be no order as to costs of these motions. Counsel for the DIOC should prepare the draft order and seek approval as to form and content from the other parties.
___________________________ D.L. Corbett J.
Date of Decision: June 30, 2022
Written Endorsement Released: July 15, 2022
CITATION: Bulakhtina v. Complaints Committee of the Death Investigation Oversight Committee, 2022 ONSC 4068
DIVISIONAL COURT FILE NO.: 608/21 DATE: 20220715
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett J.
BETWEEN:
DR. ELENA BULAKHTINA
Appellant
- And –
COMPLAINTS COMMITTEE OF THE DEATH INVESTIGATION OVERSIGHT COUNCIL AND DR. MICHAEL POLLANEN
Respondent
REASONS FOR DECISION
D.L. Corbett J.
Date of Oral Reasons for Judgment: April 19, 2022
Written Endorsement Released: July 11, 2022
[^1]: This decision was provided to the parties by email on June 30, 2022, and was effective as of that date. The reasons have been edited without changing the substance of the decision.
[^2]: Sherman Estate v. Donovan, 2021 SCC 25.