SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

RE: Peter Garber and 1825175 Ontario Inc. c.o.b. Brightstar Clinic, Applicants

AND:

Tanya Robinson and Richard Burns a.k.a. Richard Rockowski, Respondent

BEFORE: D. M. Brown J.

COUNSEL: W. C. McDowell, for the Applicants

HEARD: March 7, 2013

REASONS FOR DECISION

I. Ex parte motion for an Anton Piller order

[1] Dr. Peter Garber resides in Toronto. He owns 1825175 Ontario Inc. which operates the Brightstar Clinic in Thunder Bay. The Clinic provides community based treatment for persons with opiate dependence.

[2] From June, 2011 until January, 2013, Tanya Robinson worked as an administrative assistant at the Clinic in Thunder Bay. Her employment was terminated this past January.

[3] Richard Burns is Tanya’s boyfriend. Following the termination of Tanya’s employment Burns and Robinson sent emails to Garber threatening to bring regulatory and civil proceedings against him and his Thunder Bay colleagues at the Clinic In a January 25, 2013 email Burns indicated that if Dr. Garber re-instated Tanya’s employment, they would not pursue any complaints against Dr. Garber. The doctor refused to re-instate Tanya.

[4] In an exchange of emails between Dr. Garber, on the one hand, and Tanya and Burns on the other, Tanya has informed Dr. Garber that she still possesses patient health information which she obtained during the course of her employment, largely as the result of using her personal email to send urine test results to Dr. Garber. Specifically, Tanya has stated that she possesses sheets which contain the results of urine tests done on one or more patients.

[5] On February 12, 2013, Brendan Gray, counsel for Dr. Garber, wrote to Tanya in Thunder Bay requiring that she deliver up all urine drug screen sheets from the Clinic still in her possession. By email of that same date to Mr. Gray, Tanya refused to do so, writing:

The records were not removed from Brightstars office…One of Ms Robinson’s PERSONAL email addresses was used to move clinic records before the health screen was in place with the complete knowledge and consent of your client. The evidence relating to the altered sheet was simply maintained. Dr Garber and Ms Maki ordered it destroyed before the CON/CPSO could obtain it. We do not trust your client with this material and will await the CPSO to respond We are willing to turn the material over to the CPSO and the CON assuming they obtain an order which after speaking to them today I believe they will. The material is in cyberspace and we are confident safe from destruction by your client.

[6] On February 14 Burns, or Robinson, or both, emailed Mr. Gray to advise:

Ms Robinson is in the process of moving her assets/possessions to the Gull Bay First Nation. Ms Robinson will be outside Canada and is not intending on maintaining her Thunder Bay address during that time. It is my understanding her address in Gull Bay is 18 Main St Gull Bay First Nation P0T 1P0. There are special rules relating to the assets of an Indian located on reserve.

[7] The applicants seek an ex parte order requiring Tanya and Burns to transfer to an Independent Supervising Solicitor (Stockwoods LLP) control over designated email accounts to permit the ISS to search those accounts for any personal health information of any patient of the Applicants. The order sought would authorize the ISS to retain copies of any such Medical Records, delete the copies on the email accounts, and then return control of the email accounts back to the respondents.

II. Analysis

[8] The applicants submitted that they were seeking relief akin to an Anton Piller order. In Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36, [2006] 2 S.C.R. 189, the Supreme Court of Canada stated, at paragraph 35:

There are four essential conditions for the making of an Anton Piller order. First, the plaintiff must demonstrate a strong prima facie case. Second, the damage to the plaintiff of the defendant's alleged misconduct, potential or actual, must be very serious. Third, there must be convincing evidence that the defendant has in its possession incriminating documents or things, and fourthly it must be shown that there is a real possibility that the defendant may destroy such material before the discovery process can do its work… (emphasis added)

[9] The evidence filed established the first three elements of the test for an Anton Piller order. Section 4(1) of the Personal Health Information Protection Act, 2004, S.O. 2004, C. 3, Schedule A, defines “personal health information” as follows:

“personal health information”, subject to subsections (3) and (4), means identifying information about an individual in oral or recorded form, if the information,

(a) relates to the physical or mental health of the individual, including information that consists of the health history of the individual’s family,

(b) relates to the providing of health care to the individual, including the identification of a person as a provider of health care to the individual,

(c) is a plan of service within the meaning of the Home Care and Community Services Act, 1994 for the individual,

(d) relates to payments or eligibility for health care, or eligibility for coverage for health care, in respect of the individual,

(e) relates to the donation by the individual of any body part or bodily substance of the individual or is derived from the testing or examination of any such body part or bodily substance,

(f) is the individual’s health number, or

(g) identifies an individual’s substitute decision-maker.

[10] Under section 29 of that Act, a health information custodian “shall not collect, use or disclose personal health information about an individual unless:

(a) it has the individual’s consent under this Act and the collection, use or disclosure, as the case may be, to the best of the custodian’s knowledge, is necessary for a lawful purpose; or

(b) the collection, use or disclosure, as the case may be, is permitted or required by this Act.”

[11] In an email Tanya admitted that she had collected the urine screen shots, which constitute personal health information, during the course of her employment with the Brightstar Clinic. That employment has ended. Tanya no longer has any employment-related justification to possess such personal health information; she no longer is an agent of a health information custodian.

[12] The email exchanges also disclosed that Tanya attempted to use the fact of her possession of personal health information to secure the re-instatement of her employment. That is not an authorized use of personal health information. She also represented that she planned to turn the information over to one of the professional health regulators, if such an order was made. Although the Act does permit the use and disclosure of personal health information for some proceedings, only a health information custodian, or his agent, may take advantage of those exceptions: sections 36, 37 and 38 of the Act. Tanya does not fall within the definition of “health information custodian” in section 3 of the Act, nor is she an agent of one.

[13] Consequently, the evidence disclosed that Tanya has no legal authority to possess the health care information which she has described in her emails, and she seeks to use such information for unauthorized purposes. The applicants have established a strong prima facie case, have adduced convincing evidence that the respondents have in their possession incriminating documents or things, and have demonstrated that the consequences of the respondents’ misconduct are very serious – the misuse of personal health information of third parties.

[14] The evidence does not disclose that there is a real possibility that the respondents may destroy such material before the discovery process can do its work. On the contrary, the respondents have stated in their emails that they intend to hold onto the personal health information of third parties. In a certain sense, were the respondents to destroy the information in their possession, the applicants would achieve the goals of their application to ensure that the respondents no longer possessed personal health information of third parties. While the facts of this case do not fall squarely within the traditional framework of an Anton Piller order, they do justify the granting of a mandatory injunctive order requiring the respondents to deliver up the information to a court-appointed Independent Supervising Solicitor because the Applicants have satisfied the three-part test set out in RJR-MacDonald v. Canada, 1994 117 (SCC), [1994] 1 S.C.R. 311.

[15] In terms of the balance of convenience, the respondents’ expressed concern that the applicants might destroy evidence of medical negligence should they regain possession of the personal health information will be addressed by requiring the respondents to deliver the information into the hands of a court-appointed officer. The integrity of the information will be preserved, and its further use will be subject to the supervision of the court.

[16] The nature of this case does not require that the applicants give an undertaking as to damages because the respondents have no legal justification for holding on to the information and the applicants merely are seeking the return of information which should be in their possession and control: see, for example, Echo Valley Farms Inc. v. Alberta, 1998 ABQB 506, para. 21; Micallef v. Gainers Inc. (1988), 1988 4687 (ON SC), 63 O.R. (2d) 687 (H.C.J.).

[17] I am also satisfied that it was appropriate to bring this motion on an ex parte basis: Ignagni Estate (Re), 2009 54768 (ON SC), para. 6. From her emails, it is unclear whether Tanya presently continues to reside at her Thunder Bay address, has gone down to Jamaica for a few weeks or has moved to the Gull Bay First Nation. Further, since she has admitted in her emails to possessing personal health information about a third party, there is a need to address this matter quickly.

[18] Accordingly, I am prepared to grant the order sought by the applicants as set out at Tab 1A of their Application Record, as amended by the revisions suggested by the ISS contained in the draft order submitted at the hearing, with a few amendments.

[19] First, draft paragraph 25 authorizing the Applicants to use any seized Medical Records in proceedings against any third party must be deleted. I see no need for such a provision in the circumstances.

[20] Second, the Applicants possess the email addresses of both respondents, whereas the physical location of both respondents is uncertain. I authorize the initial service of the Order and these Reasons by email on both respondents at the email addresses set out in the Order. If the respondents acknowledge receipt of the email, by any means, or if the Applicants are able to demonstrate that the respondents have opened the emails, then service of the Order by email will be effective. If, within 48 hours of the sending of the emails to the respondents, they have not acknowledged receipt of the emails or the Applicants do not have proof that the respondents have opened the emails, then personal service of the Order must be effected on the respondents. The Order must include a provision that a representative of the ISS be present at the time personal service of the Order is made.

[21] Third, in addition to the language in draft provision 33 enabling the respondents to vary the order on 24 hours’ notice either at this Court in Thunder Bay or in Toronto, the Order must provide that in the event the Applicants seek any directions or further relief regarding the service or enforcement of the Order, those motions must be brought before this Court in Thunder Bay.

[22] The parties can obtain urgent motion dates in Thunder Bay by contacting the Northwest Region Trial Co-Ordinator, Ms. Patricia Cupp, at (807)343-2727.

[23] Costs of today’s attendance are in the cause.

(original signed by)___
D. M. Brown J.

Date: March 7, 2013