Court File and Parties
COURT FILE NOs.: CV-20-633941 and CV-20-633942 DATE: 20200328 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: COLLEGE OF PHYSICIANS AND SURGEONS, Applicant – and – SJO, Respondent
AND RE: SJO, Applicant – and – COLLEGE OF PHYSICIANS AND SURGEONS, Respondent
BEFORE: E.M. Morgan J.
COUNSEL: Lisa Brownstone, for the College of Physicians and Surgeons Matthew Sammon, for SJO
HEARD: March 27, 2020
MOTION TO VARY RULING AND SETTLE ORDER
[1] The Applicant, College of Physicians and Surgeons (the “College”), seeks to settle the Order flowing from my Reasons for Judgment of February 18, 2020. In those Reasons I stated that the Respondent physician’s name is to be initialized in order to protect the identity of his patient, who is referred to as Patient A. I will continue that practice here.
[2] For ease of reference, the Disposition paragraphs of my Reasons for Judgment (paras 91-95) read as follows:
[92] The Doctor’s application for an injunction is dismissed.
[93] In view of the fact that Patient A knows and is known to College personnel, the College’s investigation is to be conducted by an outside investigator retained for that purpose who does not know Patient A. To the extent feasible, College staff are not to participate in the investigation. The investigator is to discuss and report their findings with College personnel only to the extent necessary for the College to carry out its regulatory functions.
[94] I am advised by counsel for the Doctor that the entire Patient A medical file has been forwarded to the Doctor’s counsel and is in safekeeping at their law firm. The Doctor is to produce Patient A’s records, chart, correspondence, and other documentation to the College by having the entire file made available to the College’s investigator at the offices of the Doctor’s counsel. The records are to be reviewed by the investigator at the Doctor’s counsel’s offices and are not to be transported or transmitted to the College. To the extent feasible, College staff are not to have access to any of Patient A’s medical records or chart.
[95] With those parameters in mind, there shall be an Order pursuant to s. 87 of the Code directing the Doctor to comply with ss. 75-79 of the Code and, in particular, an Order directing the Doctor to: a) cooperate fully with the investigator appointed by the College; b) produce to the investigator, at the Doctor’s counsel’s office, all medical records and the medical chart for Patient A and all communications to and from Patient A; and c) respond to all reasonable inquiries of the investigator.
[3] Counsel for the College proposed a draft Order that she submits reflects the essence of the Reasons for Judgment. The operative portions of that draft Order read:
THIS COURT ORDERS that SJO’s application for an injunction is dismissed.
THIS COURT ORDERS that, pursuant to s. 87 of Code, SJO shall comply with ss. 75-79 of the Code and, in particular, SJO shall: a. Co-operate fully with the investigator(s) appointed by the College; b. Produce to the investigator(s) all medical records for Patient A and all communications to and from Patient A and other documentation by making this material available to the College investigator(s) at the offices of SJO’s counsel; and c. Respond to all reasonable inquiries of the investigator(s).
THIS COURT ORDERS that SJO’s compliance with ss. 75-79 of the Code is subject to the following parameters: a. The College’s investigation is to be conducted by an outside investigator retained for that purpose who does not know Patient A; b. To the extent feasible, College staff are not to participate in the investigation; c. The investigator is to discuss and report their findings with College personnel only to the extent necessary for the College to carry out its regulatory functions; d. The records produced by SJO are not to be transported or transmitted to the College except to the extent necessary for the College to carry out its regulatory functions; e. To the extent feasible, College staff are not to have access to any of Patient A’s medical records or charts.
[4] Counsel for SJO took issue with some of the language in section 3 of the draft Order, particularly in section 3(d). Counsel for the College replied by proposing a revised draft in which section 3 was eliminated entirely, on the theory that it is section 2 that imposes on SJO affirmative orders to comply and is therefore the crucial part of the Order. Section 3 sets out some qualifications as to how that compliance is to be accomplished.
[5] It is the College’s counsel’s view that the specific qualifications in section 3 do not really need to be in the Order as they are elaborated upon in the Reasons for Judgment. It is SJO’s counsel’s view that it is necessary to have the qualifications set out in the Order, but they must be articulated in a way that precisely reflects, and does not add to, what is in the Reasons for Judgment. I agree that it is desirable to include section 3 in the formal Order, as it is that section that represents the crux of the controversy that the parties have been litigating. I also agree that section 3, like the entire Order, must reflect the Reasons for Judgment.
[6] In paragraph 93 of my Reasons for Judgment, I indicated that the College is to retain an outside investigator and that College staff are to participate in the investigation only to the extent necessary for its regulatory function. This is reflected in section 3(c) of the College’s original draft Order, which ends with the phrase “except to the extent…”
[7] I then indicated in paragraph 94 of my Reasons that SJO’s entire file on Patient A, including all records, correspondence, etc., is to be handed over to his counsel and that the records are to be reviewed by the investigator at SJO’s counsel’s office and are not to be transferred or transmitted to the College. This is reflected in section 3(d) of the draft Order. I did not add the caveat “except to the extent…” to paragraph 93. Nevertheless, counsel for the College, in preparing the draft Order, has added this phrase to the end of paragraph 3(d).
[8] Counsel for SJO submits that in adding this phase to section 3(d), counsel for the College has overstepped in drafting the Order, which is supposed to conform to the Reasons for Judgment and not add anything new. It is for that reason that he has refused to consent to the form and content of the College’s first draft Order.
[9] I would say that counsel for the College has taken some liberty with language in section 3(d) of her draft Order. She added a phrase that I did not use in paragraph 94 of the Reasons. However, the added phrase in issue – “except to the extent…” – accurately captures the logic of my Reasons for Judgment and was already implicit therein. It is language that I probably should have added to paragraph 94 myself in order to bring the implicit point to the surface.
[10] The formal Order must reflect the Reasons for Judgment, but that is not a strictly mechanical exercise. Counsel for the College has carefully and accurately read my Reasons. Her draft Order, including section 3(d), reflects a proper rendition of them.
[11] The point of the restricted access to Patient A’s file was not to restrict the College for its own sake, but rather to ensure that former colleagues of Patient A’s do not gain access to the file. If it is necessary for the College to carry out its regulatory function – especially in the post-investigation phase when and if the matter proceeds to the ICRC or farther – there is no prohibition on the contents of the file being transferred to the College for further steps. The College has already undertaken not to involve its investigative staff in matters pertaining to Patient A, and I trust they will adhere to that commitment if and when this matter proceeds past the investigation phase. I would also add that, to the extent feasible, the ICRC is to be composed of members who had no prior dealings with Patient A while she was a College staff member.
[12] The College also seeks to vary the terms of my Reasons for Judgment insofar as the recent COVID-19 public health crisis has made attendance by its investigator at SJO’s counsel’s law offices an ill-advised venture. I have no desire to require anyone involved in this matter to breach the self-isolation rules that the provincial health authorities have advised we all follow. Both counsel in this motion have indicated that they agree with that approach. In this spirit, this motion was, with consent of all parties, held by videoconference while the physical courthouse is locked down.
[13] In the current health climate, it no longer makes sense to have SJO’s counsel be the repository for SJO’s file on Patient A. I understand from the College’s motion record that the College has hired Greg Hutchinson of Barker Hutchinson as its investigator for this matter. Mr. Hutchinson has signed an undertaking that he will be the only member of his firm with access to any materials shared with him by the College or which he reviews in the course of his investigation.
[14] SJO’s lawyer shall transfer the materials from SJO’s file to Mr. Hutchinson as soon as possible. Instead of SJO’s file remaining with his lawyer as I had stated in my Reasons for Judgment, they shall remain with Mr. Hutchinson. Under current circumstances, with a province-wide public health advisory in effect, I consider Mr. Hutchinson replacing SJO’s counsel as the repository for SJO’s file on Patient A to be part of “the extent necessary for the College to carry out its regulatory functions”. In other words, this is a change in the implementation of the arrangement but not in the principle it reflects.
[15] Mr. Hutchinson will investigate Patient A’s file and then Dr. Sian Rawkins, who as mentioned in my Reasons for Judgment is the College’s expert, will review the materials and write a report. Mr. Hutchinson is therefore authorized to share the materials with Dr. Rawkins. That report, with whatever backup materials Dr. Rawkins deems advisable, will be forwarded to the College in the ordinary course (but not to anyone in the investigation department).
[16] SJO and his counsel will then, also in the ordinary course, have an opportunity to respond to Dr. Rawkins’ report. The special arrangement with Mr. Hutchinson holding SJO’s file on Patient A is not intended to restrict SJO’s counsel in producing that response. By the same token, nothing in this arrangement gives SJO and his counsel access to anything that they would not ordinarily have access to. I am only addressing the question of access to materials to be held by Mr. Hutchinson. Any part of the medical file, chart, or correspondence which a physician would ordinarily have access to in making a response to the report that Dr. Rawkins will produce shall be made available to SJO’s counsel by Mr. Hutchinson.
[17] After receiving Dr. Rawkins’ report and any response from SJO, the College will engage in whatever process it would follow with any other file, always making best efforts to keep the investigation staff of the College uninvolved in the file. As already indicated, nothing in my Reasons for Judgment was or is addressed to the post-investigation phase.
[18] The College’s motion materials also set out that it has acquired by summons another email chain between SJO and Patient A of which it was not previously aware. These newly found emails were written on SJO’s email account at Providence Care Hospital. They were not contained in the file that SJO produced to his lawyer for this investigation.
[19] The College retained Matthew Musters, a forensic investigator, to retrieve the emails from Providence Care Hospital’s servers on March 17, 2020. I understand that they have been vetted so that only emails directly between SJO and Patient A have been retained and passed on to Mr. Hutchinson to be part of this investigation. Accordingly, despite the breadth of the summons used to obtained these new SJO emails, there is no concern that the College has seized solicitor-client correspondence or correspondence unrelated to Patient A.
[20] The Providence Care Hospital email account apparently contains some 70,000 emails between SJO and Patient A over a roughly 4-year period. This is an extraordinary amount of correspondence, which may require the College to retain some assistants for Mr. Hutchinson to read through them all. Providing Mr. Hutchinson with the personnel he needs to accomplish this task is not a breach of the arrangement put in place here, again assuming that they are not members of the College’s in-house investigation staff. As counsel for the College states, the sheer quantity of doctor-patient correspondence – the College’s counsel estimates 50 email messages per day, every day for 4 years – gives rise to a need for a thorough investigation.
[21] As indicated, the Providence Care Hospital’s emails are currently with Mr. Hutchinson, which is where they belong. As the College’s investigator, Mr. Hutchinson is to treat these emails in the same way as the rest of the medical file received from SJO’s lawyers.
[22] To clarify, the ruling in my Reasons for Judgment pertains to SJO’s file, including the medical chart and all notes and correspondence, relating to Patient A. I am including the emails to Patient A from SJO’s Providence Care Hospital email account as part of that ruling. They should have been included by SJO in his productions in the first place.
[23] That said, nothing else that the College acquires from a third party during the course of its investigation is covered by my ruling. The College is permitted to investigate SJO in the same way and from the same types of sources as it is when it investigates any other physician in the province. SJO’s concerns about Patient A do not otherwise limit the College’s investigation or its handling of any materials accumulated therein – except for the fact that the College has already undertaken not to pass the materials on to its own investigation staff or to involve them in this matter.
[24] Finally, the College and SJO’s counsel agree that despite efforts to anonymize Patient A in my Reasons for Judgment, they did contain a number of discrete references which could potentially identify her to those who know her. Counsel for the College has recommended that the Reasons be revised and re-issued with those specific references removed. Counsel for SJO concurs that that is appropriate. I will therefore be issuing an Amended Reasons for Judgment reflecting these deletions, to replace the February 18, 2020 Reasons for Judgment.
[25] To summarize: a) the Order from my previous Reasons for Judgment shall be in the form found at pages 10-12 of the College’s motion record, the operative part of which is reproduced above at para 3; b) Greg Hutchinson shall replace counsel for SJO as the keeper of SJO’s medical chart and file for Patient A, including the emails from SJO’s email account at Providence Care Hospital and all other correspondence with Patient A, during the investigation of SJO by the College; c) the restrictions on the way in which SJO’s file on Patient A is to be handled do not apply past the investigation stage, nor do they restrict the materials that Dr. Rawkins’ includes in her report or the materials that SJO’s counsel includes in any response to that report; and d) an Amended Reasons for Judgment will be released reflecting the privacy concerns raised by counsel.
Date: March 28, 2020 Morgan J.