Court File and Parties

DIVISIONAL COURT FILE NO.: 086/19 DATE: 2023-06-29

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: CHRISTOPHER FOLZ, Applicant AND: ALGOMA FAMILY SERVICES, Respondent

BEFORE: Matheson, LeMay and King, JJ.

COUNSEL: Jean-Jacques Desranges, for the Applicant Linda Hsiao-Chia Chen and Brendan Gray, for the Information and Privacy Commissioner of Ontario No one appearing for the Algoma Family Services

HEARD at Toronto: June 20, 2023 by videoconference

Endorsement

[1] The Applicant seeks judicial review of PHIPA Decision 83 dated January 24, 2019 (the “Decision”), and PHIPA Decision 128 dated September 28, 2020 (the “Reconsideration Decision”) of Adjudicator C. Corban of the Information and Privacy Commissioner of Ontario (the “IPC”) under the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A (“PHIPA”). For the reasons set out below, this application is dismissed.

[2] The Applicant sought access to his personal health information held by Algoma Family Services (“AFS”). There is no issue that AFS is a health information custodian under PHIPA.

[3] The Applicant sought access to information about himself from his interactions with an AFS social worker and information about the sharing of his personal information with other organizations such as the Children’s Aid Society of Algoma. The Applicant sought the social worker’s views and opinions about him.

[4] AFS denied the access request, indicating that the file contained the Applicant’s son’s personal health information. The records at issue were made in relation to an intensive treatment program for the Applicant’s son. Further, the Applicant’s son had given AFS a “Withdrawal of Consent” form indicating that he did not consent to his personal information being given to any third party, including his biological parents. AFS further noted that the children had been represented by independent legal counsel in the family law proceedings, which had been settled without an order directing that the AFS records be released to the Applicant. AFS indicated that it would need a court order or the Applicant’s son’s consent to release the records to the Applicant.

[5] The Applicant complained to the IPC. That process ultimately gave rise to the Decision.

[6] As set out in the Decision, the Adjudicator found that the AFS records did not contain any personal health information of the Applicant. The records did contain personal health information of the Applicant’s son in relation to the intensive treatment program.

[7] The Applicant submitted that he, not his son, was the client of AFS and he therefore had the right to the records. The Adjudicator found that the son was the client, based on the evidence, and that the program provided therapy to the son. It was not family therapy as submitted by the Applicant.

[8] The Applicant further took the position that he was entitled to his son’s information under s. 52 of PHIPA, as an authorized individual or substitute decision maker. The Adjudicator found that no entitlement under s. 52 was established on the evidence. The Adjudicator also found that the Applicant did not have a disclosure right under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (“FIPPA”) or the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56 (“MFIPPA”) because AFS was not an “institution” as defined in those statutes.

[9] The Adjudicator therefore declined to order AFS to provide the Applicant with any information.

[10] The Applicant then sought judicial review in this Court. Among other relief, the Applicant sought an order directing the Adjudicator to reconsider the Decision in order to apply s. 16(5) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), paramountcy, the sections of PFIPA, FIPPA and MFIPPA that permit disclosure where an Act of Canada expressly authorizes disclosure, and to consider the effect of the Withdrawal of Consent.

[11] After being notified of the application for judicial review, the IPC initiated a reconsideration of the Decision. The IPC did so under the Code of Procedure for Matters under the Personal Health Information Protection Act, 2004. Subsection s. 27.01(a) of the Code of Procedure provides that the IPC may initiate a reconsideration on its own initiative where there is a fundamental defect in the adjudication process.

[12] Notice was given to the parties. The Applicant objected to the reconsideration, submitting that the Adjudicator had exhausted her jurisdiction. However, as set out in the Reconsideration Decision, the Adjudicator concluded that her failure to consider the above matters was a fundamental defect in the adjudication process and therefore, under the Code of Procedure, the reconsideration could proceed.

[13] The parties provided additional representations in the reconsideration process.

[14] In the Reconsideration Decision, the Adjudicator addressed issues not considered in her original reasons for the Decision. The Adjudicator noted the distinction between providing “access” to personal health information and the “disclosure” of that information. Under PHIPA, access is only available to your own personal health information and the Decision had upheld the denial of access. However, PHIPA also provides the discretion to give “disclosure” in certain circumstances, in the absence of consent. Even though the Applicant had not specifically sought “disclosure” in his request for the information, the Adjudicator considered the Applicant’s position based on disclosure.

[15] The Adjudicator therefore considered ss. 41(1)(d)(i) and 43(1)(h) of PHIPA, under which a health information custodian may disclose personal health information without consent. Both subsections are discretionary – they do not require disclosure. Subsection 41(1)(d)(i) permits disclosure to comply with an order for the production of the information. Subsection 43(1)(h) permits disclosure if permitted or required by law, including by an Act of Canada. Subsections 21(1)(d) of FIPPA and s. 14(1)(d) of MFIPPA also permit disclosure where an Act of Canada expressly authorizes the disclosure but apply only to institutions.

[16] The Adjudicator addressed the Applicant’s position that as a result of the above statutory provisions, court orders in his family law proceedings and the Divorce Act provided the necessary basis for his request for disclosure of his son’s personal health information, despite the lack of consent. In brief, the Adjudicator concluded as follows:

(i) that ss. 41(1) and 43(1) of PHIPA gave AFS the discretion to disclose personal health information in certain circumstances, but did not require disclosure;

(ii) that AFS had a duty to consider whether disclosure was permitted and did so;

(iii) that AFS knew about the family law proceedings in the Superior Court and considered the court orders the Applicant put forward, finding that none of them specifically addressed, or ordered, that the AFS provide the Applicant with the requested information;

(iv) that s. 16(5) [^1] of the Divorce Act provides certain rights to a spouse who is granted access to a child and was relevant to the consideration of the above statutory provisions that incorporate Acts of Canada;

(v) that there was no paramountcy issue because the Divorce Act and PHIPA do not conflict;

(vi) that the Divorce Act could permit an exercise of discretion to disclose but in this case the evidence did not support it, including with respect to the best interests of the child, having regard for the IPC jurisprudence on disclosure due to the Divorce Act; and,

(vii) that AFS did not consider irrelevant factors in the exercise of its discretion to refuse disclosure or refuse disclosure in bad faith or for an improper purpose.

[17] The Applicant also argued against the application of his son’s Withdrawal of Consent, submitting that his son, as a minor, did not have the capacity to withdraw consent. His son was thirteen when he signed the Withdrawal of Consent in 2016 (and has since reached the age of majority). The Applicant further submitted that the withdrawal could not apply retrospectively to personal health information that was created before consent was withdrawn.

[18] The Adjudicator found that since the Applicant did not have authority to act for his son, the evidence did not show that the son had consented to begin with. Further, the son had capacity to withdraw consent under PHIPA. The Adjudicator found that the withdrawal did not apply retroactively, however, this did not mean that it only applied to personal health information created after consent was withdrawn. It meant that the IPC could no longer give any disclosure after the withdrawal of consent, regardless of when the personal health information was created, but the withdrawal did not apply to any disclosure that may have occurred prior to the date of the withdrawal of consent.

[19] The Adjudicator determined that the Decision should not be changed.

Issues and Analysis

[20] The following issues arise on this application for judicial review:

(i) whether the IPC should be permitted to respond to all issues in this application;

(ii) whether the Applicant’s affidavits of September 30, 2022 and April 6, 2023, are proper evidence in this application;

(iii) whether the standard of review is reasonableness for all or just some of the issues;

(iv) whether the Adjudicator was entitled to reconsider the Decision;

(v) whether the Decision and Reconsideration Decision were reasonable; and,

(vi) whether the sealing order made in these proceedings should be set aside.

[21] Beginning with the role of the IPC in this application, the Applicant submits that while the IPC may participate, we should disregard its submissions on the reasonableness or correctness of the Decisions because it is the decision-maker. The IPC responds that because AFS is not participating in this application, and because its adjudication is inquisitorial, not simply adversarial, it should be permitted to address all issues to assist the Court.

[22] As set out in Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 SCR 147, at para. 57, this issue requires a principled exercise of this Court’s discretion to determine the appropriate scope of the IPC’s participation. In exercising this discretion, this Court is required to balance the need for fully informed adjudication against the importance of maintaining tribunal impartiality. Focusing on this application in particular, we conclude that we do not need the IPC’s assistance on the merits of the Decisions themselves and therefore agree that the IPC’s role should not be extended to include those issues. There is no reason, in this case, to compromise the IPC’s impartiality.

[23] Moving to the affidavits, the Applicant relies on the principles in Re Keeprite Workers’ Independent Union and Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513 (C.A.) and related cases, which provide that supplementary evidence is permitted in limited circumstances. Unfortunately, these two affidavits are an amalgam of material, some of which is simply inadmissible, some of which is already in the record of proceedings, some of which does not fall within the permitted circumstances for additional evidence, and some of which does.

[24] We accept the evidence that explains why the Applicant, himself, did not initiate a reconsideration. The evidence about court orders in the family law proceedings is unnecessary. The record of proceedings includes the court orders that the Adjudicator reviewed, as discussed further below. The proposed evidence about the nature of the family law proceedings, and whether there was a basis in the record for other findings, contains argument about what conclusions should be drawn from the record. Those arguments may be made without supplementing the record of proceedings. However, in this case, even if we accepted all of the affidavit evidence it would not change the outcome. It is therefore unnecessary to go through the problems with the evidence in more detail.

[25] With respect to the standard of review, the parties agree that reasonableness is the presumptive standard of review: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 10 and 17. A reasonable decision is one that is based on an internally coherent and rational chain of analysis and is justified in relation to the facts and law that bore on the decision. It bears the hallmarks of reasonableness – justification, transparency, and intelligibility: Vavilov, at paras. 85 and 99.

[26] However, the Applicant submits that the standard of review is correctness on one issue, specifically whether the IPC could initiate the reconsideration. The Applicant submits that the IPC’s interpretation and application of the Code of Procedure should be reviewed on the standard of correctness. On that issue, the Applicant submits that the IPC had no jurisdiction and therefore could not initiate the reconsideration despite the Code of Procedure, which permits reconsideration at the initiative of the IPC. This position was also raised by the Applicant when the parties were invited to make submissions on whether there should be a reconsideration. The Applicant further submits that the reconsideration based upon a fundamental defect is impermissible “bootstrapping” of the Decision. The Applicant therefore submits that the Reconsideration Decision should be quashed and that this application should be considered based on the Decision alone.

[27] The reconsideration was initiated under s. 27.01(a) of the Code of Procedure, which expressly allows the IPC to initiate a reconsideration where there is a fundamental defect in the adjudication process. The Applicant submits that the issues he raised in his first application for judicial review are not fundamental defects in the process, despite his request, in the application, for a reconsideration. The Applicant further relies on the letter inviting submissions regarding whether there should be a reconsideration. That letter said that there “may” be a fundamental defect. The Applicant submits that showed that the Adjudicator was uncertain about whether or not there was a fundamental defect.

[28] We are not persuaded that the Adjudicator erred in initiating the reconsideration, assuming that the standard of review is correctness. As set out in s. 59 of the PHIPA, the Commissioner had jurisdiction to make rules of procedure, and did so in the Code of Procedure. Those rules permit a reconsideration in certain circumstances. The above letter from the Adjudicator gave the parties an opportunity to make submissions on the issue, underscoring the fairness of the process. The Adjudicator then decided that the circumstances fell within s. 27.01 (a) of the Code of Procedure, giving the IPC the discretion to reconsider the Decision. The Adjudicator’s interpretation of the Code of Procedure falls within the IPC’s expertise and has not been shown to be incorrect.

[29] Contrary to the submissions of the Applicant, we find this consistent with the principles set out in Chandler v. Alberta Association of Architects, 1989 41 (SCC), [1989] 2 S.C.R. 848, which was also considered by the Adjudicator along with related IPC jurisprudence about reconsiderations.

[30] The Applicant has again raised paramountcy, which would also be subject to a standard of review of correctness: Vavilov, at para. 53. However, the Adjudicator did not err in concluding that there was no issue of paramountcy. The Divorce Act was properly considered as an Act of Canada within the meaning of the above disclosure provisions.

[31] We now address the Applicant’s submissions that the Decision and Reconsideration Decision are unreasonable.

[32] The Applicant submits that the Decisions are unreasonable because of the manner in which the Adjudicator described the court orders in the family court proceedings and with respect to the Divorce Act. Both focus on the Reconsideration Decision.

[33] With respect to court orders, the Applicant had relied on a 2016 order of the Superior Court regarding the settlement of the family law proceedings, and an earlier court order from 2005. The Adjudicator did not err in reviewing those orders and concluding that they did not require disclosure.

[34] The Applicant submits that the Adjudicator erred because she wrongly found that the Superior Court “declined to” order this disclosure. We agree that the Adjudicator used that phrase in a portion of her reasons for decision and that it incorrectly implies that the specific issue of disclosure from AFS was raised and decided by the Superior Court, which it was not. As set out elsewhere in the reasons for decision, the court orders did not specifically address, or order, that the AFS provide the Applicant with the requested information. Further, the reasons for decision quote from and include a detailed discussion of the terms of the court orders that were put forward. Nothing turns on the difference between the wording that the Superior Court “did not” order disclosure rather than “declining to” order disclosure. We therefore conclude that the choice of words in part of the Reconsideration Decision does not render it unreasonable.

[35] The Applicant further submits that the Adjudicator erred by finding that for the Applicant to get disclosure under the Divorce Act, he should seek an order in court. Again, this submission must be considered in its full context. The Adjudicator properly found that AFS was required to consider the Divorce Act as a statute that could permit disclosure without consent under PHIPA. The Adjudicator did not find that a court order was needed to consider the Divorce Act under PHIPA. The Adjudicator then noted that the IPC could not make a disclosure order under the Divorce Act. What it could do, though not justified in this case, was require AFS to consider the Divorce Act in the exercise of its discretion. In this case, the Adjudicator concluded that AFS had already properly exercised its discretion and therefore she would not order it to do so again. In this context, the Adjudicator said that if the Applicant was of the view that the Divorce Act required disclosure to him, his recourse was to the courts.

[36] The Applicant also challenges the Adjudicator’s finding that AFS could take into account the best interests of the child in the exercise of discretion regarding disclosure under PHIPA. The Applicant submits that only a court can exercise parens patriae jurisdiction and the Reconsideration Decision is therefore unreasonable. However, this conflates two concepts. The Adjudicator did not purport to exercise, or say AFS could exercise, an inherent parens patriae jurisdiction. The Adjudicator noted that neither the AFS nor the IPC stepped into the shoes of the parent. The Adjudicator found that the AFS, in determining whether to exercise its discretion to disclose the son’s personal health information to the Applicant, could consider the best interests of the child.

[37] In this regard, the Applicant had put forward IPC decisions under FIPPA and MFIPPA in support of his position on the reconsideration because that legislation also permits disclosure if permitted or required by law, including by an Act of Canada. The Adjudicator considered those cases along with more recent IPC decisions. The Adjudicator found that the more recent IPC orders recognized that in addition to s. 16(5) of the Divorce Act, relied upon by the Applicant, the sections of the Divorce Act that consider the best interests of the child should be considered. Those decisions found that a parent was not entitled to disclosure of personal information under FIPPA and MFIPPA about their minor child if it was sought to further their own interests rather than for a purpose that was in the best interests of the child. The Adjudicator also considered PHIPA Decision 96, a decision under PHIPA that considered the decisions under FIPPA and MFIPPA.

[38] The Adjudicator agreed with PHIPA Decision 96 and found that s. 16(5) of the Divorce Act could support a finding that permitted disclosure but AFS could and did consider the best interests of the child in the exercise of its discretion. Finding this was a relevant consideration in the IPC’s exercise of discretion is not unreasonable.

[39] The Applicant also challenges the Adjudicator’s finding about the Applicant’s motives for requesting the information. The Adjudicator found that in exercising its discretion not to order disclosure, AFS took into account the Applicant’s motives for requesting the information. More specifically, the Applicant requested the information to further his own interests rather than for the purpose of keeping him informed about his son as set out in s. 16(5) of the Divorce Act. This conclusion was open to the Adjudicator on the record before her and does not render the Reconsideration Decision unreasonable.

[40] Having considered all of the Applicant’s submissions, we are not persuaded that the Reconsideration Decision is unreasonable. On the contrary, it bears the hallmarks of reasonableness – justification, transparency, and intelligibility.

[41] The Applicant also seeks to set aside the sealing order granted by Corbett J. dated October 5, 2021. Under that order, the part of the record of proceedings that contains the disputed information was sealed. In his reasons for decision, Corbett J. dealt with the Applicant’s arguments against making the sealing order. The Applicant raises the same issues now. We are prepared to consider the request to set aside the order because Corbett J.’s decision expressly permits the Applicant to raise the issue before this panel. However, having considered the submissions and bearing in mind the outcome of this application, we see no reason to set aside the sealing order.

[42] This application is dismissed. There shall be no order as to costs.

Matheson J.

LeMay J.

King J.

Date: June 29, 2023

[^1]: At the relevant time period, s.16(5) provided as follows: Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.