Economical Mutual Insurance Company et al. v. Fairview Assessment Centre Inc. et al.

[Indexed as: Economical Mutual Insurance Co. v. Fairview Assessment Centre Inc.]

Ontario Superior Court of Justice, Master McAfee Date: May 24, 2016 Citation: 131 O.R. (3d) 308 | 2016 ONSC 3169

Counsel

For moving parties, defendants Fairview Assessment Centre Inc., Pacific Assessment Centre Inc., Yan Tam, Alexandre Lobatch and Vitali Tourkov: James McReynolds For responding parties, plaintiffs: Michael Huclack

Endorsement

[1] MASTER MCAFEE: — The parties agree that the relief for determination at this time is as set out at para. (c) of the notice of motion of the moving parties, the defendants, Fairview Assessment Centre Inc., Pacific Assessment Centre Inc., Yan Tam, Alexandre Lobatch and Vitali Tourkov (the moving defendants). The moving defendants seek directions concerning the production of medical documentation containing personal health information ("PHI") of certain non-party insured individuals who made claims for statutory accident benefits (the "SABs claimants").

[2] For the purpose of the determination, the parties agree that all SABs claimants have signed the Application for Accident Benefits ("OCF-1"). The parties also agree that the medical documentation is relevant.

[3] The moving defendants argue that the SABs claimants have not provided their consent to production of the medical documentation in the context of this action in which their medical documentation may become and or is now part of a public record. The moving defendants argue that the consent of the SABs claimants must be obtained before production or a motion for production must be brought on notice to the SABs claimants pursuant to rule 30.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The moving defendants rely on the decision of L. (M.) v. Homewood Health Centre Inc., [2011] O.J. No. 3680, 2011 ONSC 4790 (S.C.J.).

[4] The plaintiffs argue that the SABs claimants have provided their consent. The plaintiffs further argue that in any event the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sch. A ("PHIPA") permits use and disclosure of the medical documentation containing PHI in the circumstances of this action without consent. The plaintiffs rely on the decisions of the Human Rights Tribunal of Ontario in Dewdney v. Toronto Transit Commission, 2012 HRTO 2212, Coutts v. Toronto Transit Commission, [2016] O.H.R.T.D. No. 12, 2016 HRTO 7; Borba v. North York General Hospital, [2015] O.H.R.T.D. No. 626, 2015 HRTO 638; and Vinayagamoorthie v. Dr. Jeannette Salib's Doctor's Office, [2013] O.H.R.T.D. No. 952, 2013 HRTO 938.

[5] I am satisfied that the SABs claimants have provided their consent for the purposes of production and disclosure of the medical documentation in the within action.

[6] In order to initiate a valid claim for SABs, each SABs claimant signed and submitted to the plaintiffs a standard OCF-1. The applicable provisions concerning consent are set out at Part 12. Each SABs claimant has expressly consented to the plaintiffs' collection, use and disclosure of their personal information and PHI for the legitimate purposes of, inter alia, investigating and processing their claims, obtaining or verifying information relating to their claims in order to determine entitlement and the proper amount for payment, recovering payment from insurers and others liable in law for amounts that the insurer pays in connection with their claims, and preventing fraud and detecting fraud where there are reasonable grounds to suspect fraud.

[7] In addition to providing their consent, at Part 12 of the OCF-1, the SABs claimants acknowledged that PHI may be disclosed to others without the knowledge or consent of the SABs claimants.

[8] The moving defendants submit that because the consent at Part 12 does not specifically refer to disclosure in the context of civil litigation in a public forum in which the SABs claimants are non-parties, the SABs claimants have not provided informed consent. I disagree.

[9] In my view, the consent at Part 12 of the OCF-1 is sufficiently broad to encompass disclosure within the context of the present action. In this action the plaintiffs allege, inter alia, that the defendants conspired to defraud the plaintiffs by submitting medical assessment reports purportedly authored by physicians when they were not so authored, submitted assessment reports and treatment plans purportedly authorized by physicians that were not so authorized and submitted invoices for medical services that were not in fact performed for the SABs claimants. The plaintiffs claim damages as a result of the alleged fraudulent claims. In their counterclaim, the moving defendants Fairview and Pacific claim damages for services performed and devices provided that have not been paid. The provisions of Part 12 of the OCF-1 concerning fraud and recovery of payment from others liable in law are applicable.

[10] Even if the SABs claimants have not provided consent, which in my view they have, the PHIPA expressly permits the plaintiffs, as recipients of PHI, to use and disclose the medical documentation for the purpose of this action in which they are parties without the consent of the SABs claimants.

[11] Section 49 of the PHIPA states,

Restrictions on recipients

49(1) Except as permitted or required by law and subject to the exceptions and additional requirements, if any, that are prescribed, a person who is not a health information custodian and to whom a health information custodian discloses personal health information, shall not use or disclose the information for any purpose other than,

(a) the purpose for which the custodian was authorized to disclose the information under this Act; or

(b) the purpose of carrying out a statutory or legal duty.

Extent of use or disclosure

(2) Subject to the exceptions and additional requirements, if any, that are prescribed, a person who is not a health information custodian, and to whom a health information custodian discloses personal health information, shall not use or disclose more of the information than is reasonably necessary to meet the purpose of the use or disclosure, as the case may be, unless the use or disclosure is required by law.

[12] Section 41(1) of the PHIPA provides that a health information custodian may disclose PHI,

41(1)(a) subject to the requirements and restrictions, if any, that are prescribed, for the purpose of a proceeding or contemplated proceeding in which the custodian or the agent or former agent of the custodian is, or is expected to be, a party or witness, if the information relates to or is a matter in issue in the proceeding or contemplated proceeding;

(d) for the purpose of complying with,

(i) a summons, order or similar requirement issued in a proceeding by a person having jurisdiction to compel the production of information, or

(ii) a procedural rule that relates to the production of information in a proceeding.

[13] In Dewdney, the adjudicator considered a recipient's permissible use and disclosure of PHI. The adjudicator reviewed the applicable provisions of the PHIPA and concluded that a recipient of PHI is restricted from using or disclosing the PHI unless one of four conditions is met: (i) the recipient has the individual's consent; (ii) the recipient is doing so to comply with a statutory or legal duty; (iii) the use/disclosure is for the purposes of a proceeding in which the recipient is a witness or party; or (iv) to comply with a summons, order or procedural rule.

[14] The interpretation of the PHIPA in Dewdney has been adopted by the Human Rights Tribunal of Ontario in subsequent decisions where use and disclosure of PHI was similarly sought (see Coutts, Borba and Vinayagamoorthie).

[15] As recipients of PHI, the plaintiffs are permitted to use and disclose PHI for purposes that the custodian is authorized to disclose PHI under PHIPA. A custodian is authorized to disclose PHI for the purpose of a proceeding in which the custodian is, or is expected to be, a party or witness. In accordance with s. 49(1) of the PHIPA, the plaintiffs, as recipients, may use and disclose PHI for the purpose of this proceeding in which the plaintiffs are a party. There is no requirement for consent in the PHIPA in these circumstances.

[16] In the decision relied upon by the moving defendants of L. (M.), the provisions of the Mental Health Act, R.S.O. 1990, c. M.7 were also applicable, which is not the case before me. In addition, there was no signed consent or acknowledgement concerning PHI in L. (M.).

[17] In light of the allegations in the within action, the consent and acknowledgement of the SABs claimants and what is the permissible use and disclosure prescribed by the PHIPA, the use and disclosure of the medical documentation is permitted in the within proceeding.

[18] It is also appropriate to consider whether fairness in the circumstances of this case requires that production of the medical documentation should be subject to certain limitations. Having regard to the moving defendants' concerns of disclosure in a public forum and because the SABs claimants are not parties to this action, the medical documentation ought not to be filed in the public court file, subject to further order of the court. The parties confirmed that the responding motion record is the only court document filed to date containing the medical documentation.

[19] If it is necessary for the medical documentation to be placed before the court on any motion, case conference, pre-trial or at trial, the documents shall be filed separately in a sealed envelope directly with the office of the presiding judicial officer and not in the public court file, subject to further order of the court and subject to the discretion of the trial Judge.

[20] The following directions are hereby given:

(1) Subject to paras. 2, 3 and 4 below, production of the medical documentation is permitted in the within action. A further consent from the SABs claimants or motion on notice to the SABs claimants pursuant to rule 30.10 is not required.

(2) The medical documentation shall not be filed in the public court file pending any further order of the court and subject to the discretion of the trial judge.

(3) If it is necessary for the medical documentation to be placed before the court on any motion, case conference, pre-trial or at trial, the medical documentation shall be filed separately in a sealed envelope directly with the office of the presiding judicial officer and not in the public court file, subject to further order of the court and subject to the discretion of the trial judge.

(4) The responding motion record shall be sealed subject to further order of the court.

[21] On consent, as set out in my endorsement dated May 3, 2016, the balance of the relief requested in the notice of motion and the issue of costs of the two motions that proceeded before me on September 28, 2015 are adjourned to proceed before me on June 13, 2016, commencing at 2:30 p.m. for one half day.

Order accordingly.

End of Document