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Practice Direction on open proceedings and privacy

The Ontario Physicians and Surgeons Discipline Tribunal is committed to the just and expeditious determination of discipline proceedings. This Practice Direction provides guidance to the public and participants in Tribunal proceedings. It is not a rule within the meaning of the Tribunal’s Rules of Procedure.

Introduction

Administrative tribunal proceedings must be open to the public, unless there is a good reason to depart from this principle. This is a constitutional requirement, protected by the guarantee of freedom of expression in s. 2(b) of the Canadian Charter of Rights and Freedoms. It applies to the hearing itself as well as documents filed for or at the hearing.

In the health discipline context, evidence often consists of personal health information about individuals who are not parties to the proceeding, obtained through the College’s investigation powers. While it does not apply directly to evidence in Tribunal proceedings, section 36 of the Regulated Health Professions Act reflects the importance of confidentiality of information held by the College. The special privacy interests in health records are also recognized in the Personal Health Information Protection Act.

The Tribunal’s Rules of Procedure and jurisprudence balance the principles of openness and protection of the privacy of personal health information.

How to Watch a Hearing

The Tribunal’s hearings are livestreamed. To get the link for a hearing, click here. Recording or taking screenshots of Tribunal hearings is prohibited.

Disclosure

Disclosure the College provides to a member and/or their counsel must be kept confidential and only used for the purposes of the proceeding or as required by law, unless the Tribunal orders otherwise: see Rule 7.1.5 and College of Physicians and Surgeons of Ontario v. Gill. The Rule applies to materials from the investigation and those provided by the College as part of disclosure. It does not make otherwise public documents confidential or apply new restrictions to documents the member already has. If a document becomes public through the Tribunal process, the rule no longer applies.

Public Documents

The following documents, once filed with the Tribunal, are public unless the Tribunal orders otherwise (see Rule 2.1.2), or unless they are provided for a Case Management Conference:

  • notices of hearing;
  • notices of application;
  • statements of particulars;
  • agreed statements of fact;
  • notices of motion;
  • motion records;
  • books of authorities;
  • factums;
  • written submissions unless filed for a case management conference;
  • exhibits, including any marked for identification;
  • case management directions;
  • orders; and
  • reasons

The Tribunal will provide access to these documents to anyone who requests it. To request copies of public documents, complete this on-line form.

Transcripts

All Tribunal hearings are recorded so that a transcript can be made if requested. If a person other than a participant in the hearing requests a transcript, the Tribunal will redact it to remove personal health information, patient health records, patient names and any information that could identify a patient before it is provided to the requestor: Rule 2.1.4.

To order a transcript, email the Tribunal at tribunal@opsdt.ca. We will connect you with the court reporting company that produces our transcripts. Please note that you are responsible for the cost, which is paid to the court reporting company.

Non-public Documents

The following are not public (See Rules 2.2.3 and 2.2.4):

  • patient health records;
  • the name of, or any information that could identify, a patient;
  • patients’ personal health information, unless the details are important to addressing issues in dispute;
  • social insurance numbers and employee identification numbers;
  • OHIP billing numbers, health card numbers, business numbers, or GST/HST account numbers;
  • date of birth (unless it must be provided, in which case only the year must appear);
  • name of any person under the age of 18;
  • account numbers from banks or other financial institutions; and
  • any other document the Tribunal orders will be non-public.

Filing Documents and Redactions

Before filing any document containing information in the above list, counsel or self-represented parties should determine whether it is necessary that the panel consider the information to make its decision. If not, the detailed information should be redacted before the document is filed. If the panel does not need redacted information, only one version of the document need be filed.

If it is necessary for the panel to consider the detailed information (e.g. the name of the patient), the party must file two versions of the document: a public version with redactions and a non-public version without redactions. Patient health records need not be redacted and should be filed as a separate non-public document. The Tribunal may exempt a party from the requirement to redact if the redactions would be onerous or for other reasons.

Parties must identify any documents that are non-public when they file them, whether before the hearing with the Tribunal Office or at the hearing with the panel.

Automatic Publication Ban

There is an automatic publication ban on any information that could identify patients or disclose parties’ personal health information: Rule 2.2.2. The Tribunal, either at a case management conference or hearing, may lift the ban in whole or in part or add to it. The Tribunal will generally grant a request from a patient to lift the ban on their name.

Requests for Broader Publication Bans or Not Public Orders

If someone wants to ask for a broader or different publication ban than in the rules or that additional types of documents not be public, they must make a request under Rule 2.2.8. The request may be decided either at a hearing or in writing.

The requestor must deliver and file a Form 2A at least seven days prior to the hearing where they will raise the issue, if they intend to do so orally. If the requestor asks that the matter be heard in writing, the Tribunal will wait at least seven days before deciding.

The Form 2A will be posted on the Tribunal’s website at https://opsdt.ca/hearings/notices-to-the-media. Unless the Tribunal directs otherwise, posting of this form is sufficient for notice to the media of the request. Any representative of the media who wishes to make submissions on the proposed ban should contact the Tribunal at tribunal@opsdt.ca. The Tribunal will advise on next steps.

The Tribunal will only make an order if convinced that:

  1. openness poses a serious risk to an important public interest;
  2. reasonable alternative measures will not address this risk; and
  3. the benefits of the order outweigh its negative effects on openness.

See the Supreme Court’s decision in Sherman Estate v. Donovan, 2021 SCC 25 and Rule 2.2.10. The requestor must make oral submissions at the hearing or written submissions on how the proposed order meets this test, even if there is no objection.

Documents Filed Before January 1, 2023

There is a different process under Rule 2.3 for documents filed before the present rules took effect on January 1, 2023. This reflects the rules that were in place at the time the documents were filed, under which the Tribunal made any necessary redactions and the parties could object to the release of the documents.

To request pre-2023 documents, file a motion using Form 2B. The Tribunal will send the motion and the Tribunal’s proposed redactions to the parties and invite their submissions. This motion will be decided in writing unless the Tribunal directs otherwise. Any party that opposes access to the materials must establish that the criteria in Rule 2.2.10 are met.

Any party opposing access must file their submissions no later than one week from the date the Tribunal sends them the motion. The other parties do not need to respond unless directed to do so by the Tribunal.

Parties to a motion under Rule 2.3 are expected to act quickly. See College of Physicians and Surgeons of Ontario v. Fagbemigun, 2022 ONPSDT 24.

If the motion is granted, the documents will be provided to the requestor electronically.