Accessible Practice: The Importance of Privacy for Clients with Disabilities

June 15, 2018

There is no question that privacy is of utmost importance to all clients. However, there are privacy concerns that are specific to clients with disabilities that may not arise in matters where the litigant/applicant/complainant is not a person with a disability.  What are these privacy concerns and what can you do in your legal practice to proactively address these issues?   

Why Privacy is a Concern to Clients with Disabilities

When a client with a disability approaches a clinic or firm, it is often because they have been on the receiving end of unfair, unjust and/or discriminatory behaviour. Their experience may include facts that are hurtful and demonstrative of ableist behaviour that results in an injury to the prospective client’s dignity and self-respect. By this time, the client may be wary of divulging their information to more strangers. 

Privacy may also be of heightened concern to clients with non-evident or highly stigmatized disabilities for example, persons living with HIV/AIDS, persons with mental health disabilities and persons with addictions disabilities.  Prospective clients with non-visible disabilities may experience discrimination and attitudinal barriers upon disclosing their disability and may be concerned of further discrimination upon further disclosure to more persons. 

Privacy Considerations during Intake

A prospective client’s first point of contact at a legal clinic or a firm is often an intake worker, who may be an assistant, a community legal worker, an articling student or a junior lawyer. Since the intake worker will not be dispensing any legal advice during the call, it is important that the questions they ask the client to gauge whether or not the clinic or firm can be of any assistance are as least intrusive as possible.  

For example, when a prospective client calls a clinic asking to schedule an appointment to speak with a lawyer and identifies themselves as a person with a disability, intake staff should not ask the person to disclose the nature of their disability. 

There are also times when a friend, next-of-kin or support person may call a clinic or firm and request legal advice on behalf of a person with a disability. In these circumstances, it is imperative upon the intake worker to advise the caller that if the person with a disability wants to seek advice, they should call or email the clinic or firm themselves, and explore disability related accommodations if there are any barriers preventing direct communication. By doing this, the intake worker and by extension the firm at which they are employed is respecting the privacy and autonomy of the person with a disability.  

There are also instances where a friend, next-of-kin or support person may call a clinic or firm and request that they provide the organization with the name and number of the person with a disability so that the clinic may reach out to them. While the caller may have very well-meaning intentions, this still raises a privacy concern and the intake worker should advise the caller that they cannot take down any information about a person who is not contacting the clinic themselves. 

Privacy Considerations during an Appointment

Once a client has an appointment with a lawyer certain factors must be taken into consideration with respect to privacy concerns.  These considerations may apply to appointments, regardless of whether the appointment is in person, by phone or by email. 

Many clinics and firms have students year round.  One of the most rewarding experiences for students is to shadow a lawyer interacting with a client, or having the student conduct the interview themselves. While this may be of benefit to the student, it may be an uncomfortable or unwanted experience for the client. As such, it is advisable that upon informing the client that a student will be attending the appointment alongside the lawyer conducting the interview, that the client be given an opportunity to raise privacy concerns. Should the client express that they do not want anyone other than the lawyer present at the meeting, the lawyer must respect the client’s wishes.  

On the other hand, the client may express that they want to bring a support person present at the appointment. The support person can be a parent, a sibling or other next-of-kin. The support person may also be a friend or a caseworker. If a support person is attending alongside the client, it is important to speak to the person with a disability on their own, apart from the support person and explain to them the privacy repercussions and the sensitive nature of the questions that will be put to them. If, upon being provided this information, the lawyer receives consent from the client with a disability for the support person to sit in on the appointment, then the lawyer can conduct the appointment with both persons present. 

For example, if the client is a person who identifies as a person with a physical and a mental health disability, but only experienced discrimination related to their physical disability, then questions regarding the mental health disability should be limited, if asked at all. This allows the lawyer to obtain the information relevant to providing the advice sought by the client without invading the client’s privacy with respect to the other disabilities. 

Privacy Considerations in the Litigation Process

Once the client has retained the lawyer for the purposes of litigation, a new set of challenges regarding privacy may arise. 

a) Choice of Forum

With respect to human rights matters, one of the first decisions your client may have to make is regarding the choice of forum.  Pursuant to section 46.1 of the Ontario Human Rights Code (Code), a litigant may seek a civil remedy for discrimination based on a Code ground.  The human rights claim, of course, cannot be brought alone and must be brought before the court in conjunction with a civil cause of action. 

For example, if the client was terminated from their employment, they may want to pursue a civil action for wrongful dismissal but also believes that discrimination played a part in their dismissal. It is the lawyer’s duty to advise them of all the legal avenues available to them, including the Human Rights Tribunal of Ontario (HRTO) and civil court.

In advising the client of the legal avenues available to them, the issue of privacy implications may be central to the client deciding to pursue one avenue over another. One of the first questions we get asked by clients is, “who will see my medical documents” should they choose to commence litigation proceedings. This is a fair question and a valid concern. It is important to advise the client that if they commence a civil claim, everything that is filed with the court becomes available for public consumption, including the initial pleadings, motion records, affidavits and any personal or private documentation that might be appended as exhibits.

At the HRTO, on the other hand, the pleadings, disclosure and exhibits at the hearing are all subject to a Freedom of Information (FOI) Request pursuant to the Freedom of Information and Protection of Privacy Act (FIPPA). In accordance with section 21 of FIPPA there is, in effect, a presumption of privacy over the HRTO record and any third party seeking said record must file an FOI request and state reasons as to why they are seeking that information. 

This presumption, and section 21 of FIPPA in particular, has now been called into question because of the recent Toronto Star v. AG decision (the analysis for which will be provided in a later blog post).  It is important to make clients aware of this, although it is difficult to be able to crystalize at this point what the newly drafted sections of FIPPA will look like and how they will affect litigants appearing before tribunals.  

Despite the Toronto Star decision, it is important to recognize that there are practical measures taken by the HRTO adjudicators to balance privacy interests and transparency in the tribunal proceedings. 

For the purposes of this blog post, and to avoid confusion, we will focus on matters where the client is filing an application at the HRTO. 

b) Medical Documentation and the “Arguably Relevant” Test

When an applicant brings an application before the HRTO alleging discrimination based on the ground of disability, they are putting their disability squarely before the HRTO and inevitably a certain number of medical documents may have to be disclosed to the named respondents and to the HRTO in order for the applicant to be able to prove their case.

As the lawyer representing a client with a disability, it is important to ensure that

a) The client is aware of the privacy implications that come along with filing a human rights application; and

b) Making sure that only medical documents that specifically pertain to the client’s disability central to the application are disclosed to the other parties.

The legal test employed by the HRTO is the ‘arguable relevance’ test.  The HRTO has made it clear that the threshold for this first stage of disclosure is not a high bar. See for example: Lampi v. Princess House Products Canada Inc.

What should be reassuring for applicants that appear before the HRTO, however, is that the HRTO itself is aware of the privacy concerns of persons with disabilities.  In Lampi, the HRTO stated, 

“The Tribunal is also sensitive to privacy issues, particularly in relation to the production of medical records.  Even where such records are arguably relevant, compelling privacy interests can be protected through such techniques as limiting the documents ordered to be produced, restricting the individuals who may view the documents, or ordering production to the Tribunal for inspection or redaction before disclosure: see, for instance, McEwan v. Commercial Bakeries Corporation 2004 HRTO 13.”

This was further emphasized in Logtenberg v. Ontario (Finance), 2010 HRTO 1909, where the HRTO stated, 

“The Tribunal does recognize the sensitive nature of some of the medical evidence provided in its cases, and the Tribunal’s decisions to minimize the unnecessary disclosure of such evidence.”  

Despite the HRTO’s articulation of what constitutes “relevance” when it comes to medical documentation, it is not uncommon for Respondents to request a lot more medical documentation than what is arguably relevant to the matter.  For example, a client with multiple disabilities may bring a case based on discrimination and a failure to accommodate only one of their multiple disabilities.  The documentation that is arguably relevant in that matter and that is necessary for the applicant to prove their case on a balance of probabilities standard is medical documentation pertaining to the one disability put squarely before the HRTO – not all of their medical documentation pertaining to all of their disabilities. 

Sometimes applicant’s counsel may have to undertake certain measures to ensure the HRTO and the respondents that all of the arguably relevant medical documentation has been disclosed.  In one matter, for example, a client had multiple disabilities acquired over different periods of time in their life.  The respondent requested 20+ years’ worth of medical documentation despite the fact that the disability at the centre of the HRTO complaint had been acquired only 5 years prior to the filing of the complaint.  Applicant’s counsel undertook to review all 20+ years of medical documentation and provided two charts, one chart detailing the medical documentation disclosed and another chart listing the medical documentation that was not disclosed and reasons as to why.  Despite the respondents’ arguments that this was not sufficient and more medical information should be disclosed, the HRTO found that the provision of the charts and counsel’s undertaking to revise all of the medical documentation sufficed. The HRTO did not require disclosure of the medical documentation not pertaining to the disability central to the discrimination complaint. 

Strong advocacy on behalf of clients is necessary to ensure that the scope of medical documentation is narrowed to the particular disability that is central to the complaint made in the application. In doing so, the lawyer ensures that their client maintains some privacy over the medical information/documentation that is not relevant to the matter before the HRTO.

c) Anonymization

Privacy concerns of complainants appearing before the HRTO and the ways in which the HRTO seeks to strike a balance between privacy interests and the openness of proceedings is addressed in the HRTO’s Practice Direction on Anonymization. It is important to note from the outset that the HRTO does not easily grant requests for anonymization since anonymizing decisions curtail the need for openness and transparency of legal proceedings.

First, let’s define what anonymization means.  Anonymization refers to replacing a complainant’s full name with the complainant’s initials on every interim decision and the final decision in a HRTO matter. In some cases, anonymization is automatically granted without a request being made – for example, when the litigant is a minor

In other cases, exceptional circumstances must be present in order for the HRTO to be convinced that anonymization is necessary. In matters where the litigant is concerned about sensitive medical information being revealed in an HRTO decision, a Request for an Order during Proceedings (RFOP) requesting anonymization must be made. It is not enough that a litigant is concerned that their personal information will be laid out in an interim or final decision. It is equally not enough that a litigant may be worried that the information related to their disability contained in an HRTO decision may affect future employment prospects

In saying that, however, the HRTO has also made it clear that there are specific circumstances where anonymization will be granted, including in cases where highly sensitive medical information pertaining to non-evident mental health disabilities have been or will be disclosed throughout the proceedings. 

Further, the HRTO has paid particular attention to matters where the medical information disclosed in the proceedings speaks to attempted suicide by the applicant. In fact, in C.C. v. [….] Restaurant, the HRTO not only granted a request to anonymize the name of the applicant, but found that the medical information disclosed to be so highly sensitive that Vice-Chair Renton decided it was necessary to also anonymize the name of the applicant’s daughter, two witnesses who had familial relationships with the applicant, the identity of the respondents and the identity and type of the applicant’s service animal. 

If anything the decision of C.C demonstrates that the HRTO will take each request for anonymization on a case by case basis. It must be stressed to the client that a request for anonymization continues to be rarely granted by the HRTO, as it is the HRTO’s responsibility to ensure that proceedings are open and transparent

Conclusion

Clients with disabilities have privacy concerns that are particular to them because of their lived experience.  Counsel for a client with a disability should be proactive in addressing these concerns and employ certain measures to ensure that a client’s privacy is not infringed upon any more than a client without a disability.  

In light of the recent Toronto Star decision, we are in a period where the rules at the HRTO may change and shift depending on the Government’s amendments to FIPPA.  For now, clients with disabilities who have matters before the HRTO or are preparing to file an application before the HRTO should be made aware of the recent decision and the potential implications it may have on the privacy that is currently afforded to them pursuant to FIPPA.

 

ARCH offers a lawyer to lawyer summary advice service. If you have questions about this post, or matters related to providing accessible legal services to clients with disabilities, please call ARCH to schedule an appointment and speak with an ARCH lawyer: Telephone: 416 482 8255 or 1 866 482 2724; TTY: 416 482 1254 or 1 866 482 2728.