Ontario occupational health record law in deep need of correction

Here is the paper I submitted in participating on a panel at the LSO’s Human Rights Summit last week. The title speaks to the content, which is about the wart that is the Divisional Court finding in Hooper v. College of Nurses of Ontario. Time for Hooper to go.

Court orders theraputic records to be returned to their maker despite privacy claim

On March 8th the Ontario Superior Court of Justice ordered the return of therapeutic records allegedly obtained through fraudulent means despite an argument that such return would cause harm to the individuals to whom the records related.

The records were created by a psychotherapist and hypnotist alleged to have held himself out as a medical doctor. He took notes of sessions with a number of complainants that the police seized but that were no longer needed for investigation or for trial. The Crown asked the Court to hold the return of the records based on section 37 of the Canada Evidence Act because returning the records would, “encroach upon a specific public interest and privacy concern of the alleged victims of this fraudulent conduct.”

The Court dismissed the Crown’s application, questioning whether a privilege or privacy claim could apply to information known by the accused and records created by the accused. It said:

In my view, s. 37 of the Evidence Act does not apply to the facts of this case. The seized notes and records belong to the respondent and should be returned to him. I agree with Mr. Chambers’ submission that s. 37 is intended to apply where an accused seeks disclosure of of records or information generated by the state and its agents or through the interaction between complainants and third parties, which have never been in the accused possession.

R v Kent, [2013] O.J. No. 1037 (SCJ) (QL).