Oct 23, 2020

Access by a Regulator to Highly Confidential Client Files

College of Physicians and Surgeons v. SJO, 2020 ONSC 1047 (CanLII)

Should there ever be limits to a regulator’s access to a practitioner’s client files when the files are relevant to an investigation? Almost never is the answer provided in College of Physicians and Surgeons v SJO, 2020 ONSC 1047, http://canlii.ca/t/j59mv. During the course of an employment matter, the regulator became aware of inappropriate communications between the former employee and her psychiatrist. As a result of these concerns, including possible boundary crossings with the client, the regulator sought to obtain the psychiatrist’s files for the employee / client. The psychiatrist asserted that disclosing the file, especially to the client’s former employer, would put the client’s health at risk.

The Court upheld the right of the regulator to have access to the file. Its investigative powers are broad and override any other statutory confidentiality and privacy laws. In addition, the case law “privilege” that applies to special relationships of confidence (such that communications within that relationship will remain secret) would not apply to a regulator protecting the public. The practitioner’s position would, in effect, create “an almost perfect avoidance of regulatory scrutiny”. There was no reason to believe that the investigation was being conducted in bad faith or for a collateral purpose related to the employment issues. The scope of the investigation, even though it might include the review of other files for comparison purposes, was appropriate.

Because the client was a former employee of the regulator, certain safeguards were put in place. The investigator was external to the regulator and the file would be kept and reviewed offsite from the regulator’s office. To the extent feasible, information would not be shared with the staff at the regulator. The Court directed that the practitioner cooperate fully with the investigation.

This case is also interesting in that the regulator used the provision allowing for an order directing compliance with the statute (a form of injunction) to compel cooperation by the practitioner. That provision is usually used by regulators to compel unregistered persons to cease holding themselves out as being registered or from performing dangerous acts.

It is difficult to contemplate circumstances in with the client file could be more sensitive than in this case but regulators will almost always have access to the client files of the practitioners it regulates.