In College of Physicians and Surgeons of Ontario v. Luthra, 2026 ONPSDT 30, the Ontario Physicians and Surgeons Discipline Tribunal addressed two questions of practical significance for healthcare regulatory litigation: 1) what records fall within the statutory third-party records regime, and 2) how a tribunal assesses whether they are "likely relevant". The discipline hearing involved allegations that the registrant, a physician, sexually touched and made sexual remarks to a nurse with whom he was working at a hospital. The registrant denies this conduct. conduct the registrant denies. On a motion for production of third-party records, the registrant sought the hospital records of the patient who the complainant says was present during the alleged assault.
Production of third-party records requires a two-step analysis, that is applied twice. In the first stage, without looking at the records, the tribunal determines whether (1) they are likely relevant and (2) whether it is in the interests of justice to examine them. In the second stage, if the tribunal decides to review the records, the tribunal will look at the same factors and decide whether (1) the records are relevant and, (2) it is in the interests of justice to produce them to the parties.
The Tribunal found the records likely relevant, reviewed them, and ordered production to the parties. The reasons clarify the scope of section 42.2 of the Health Professions Procedural Code and offer a helpful template for the likely relevance inquiry.
The Scope of Application of Section 42.2
The registrant argued that the common-law approach in R. v. O'Connor, [1995] 4 SCR 411, governed, while the College argued that section 42.2 of the Code supplied the governing principles.
The registrant contended that, on a purposive reading, section 42.2 applies only where a complainant's or witness's records are sought, because the provision's purpose was to protect complainants. He relied on the Minister of Health's Hansard statement during second reading and on the Minister's Task Force report, both of which framed protection of alleged victims as the purpose. His submission was that context and purpose narrowed the text, which by its text extends to any records in which there is a reasonable expectation of privacy.
The Tribunal disagreed, and found that section 42.2 was not limited to the records of a complainant or witness. This interpretation was supported by the text of section 42.2, which states that it applies where a registrant seeks production of "a record that contains information for which there is a reasonable expectation of privacy from a person who is not a party to the hearing." The Tribunal also noted that while Section 42.2 borrowed heavily from section 278.2(1) of the Criminal Code, the Legislature pointedly did not borrow the "complainant or witness" limitation when defining section 42.2’s application, suggesting an intent that it apply more broadly.
The Tribunal concluded that section 42.2 applies whenever any third party's records are sought where there is a reasonable expectation of privacy.
The Tribunal's Analysis of the Likely Relevance of the Records
The registrant argued there was a reasonable possibility that the patient's hospital records were logically probative to three issues: (1) the patient's state and whether he was essentially "comatose," as the complainant said, such that he could not or would not react if he had seen the alleged events; (2) the contact precautions in place and whether the complainant would have been wearing a gown; and (3) the timing of when the complainant and registrant worked together and when the complainant provided medication to the patient, particularly given that the complainant originally placed the events several weeks after the patient had left the hospital and died before later changing her account.
To establish likely relevance, there must be a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify.
The College argued that the evidence sought by the registrant was not relevant to an issue to be decided at the hearing, and rather that the evidence was only relevant to the complainant’s credibility on collateral issues. The College argued that the evidence should not be admitted under the collateral fact rule, which prohibits the admissions of evidence that only seeks to challenge credibility on collateral or minor issues.
The Tribunal rejected the College's collateral evidence objection on two levels: the evidence was not collateral, and even if it were, that would not bar likely relevance or production.
The Tribunal concluded that this evidence sought was not collateral. The registrant sought evidence about the incident itself — the patient's mental state, what the complainant was wearing, and timing. Regarding evidence of the patient’s state of mind, the Tribunal noted that the complainant made assertions about the patient's state of mind, the registrant could argue that errors bear on her credibility. Whether the complainant was wearing a gown was relevant to the credibility of the allegations of sexual touching, as the complainant had alleged that the registrant put his hand down her pants. The treatment records could also test the credibility of the complainant’s chronology because she initially placed the events several weeks after the patient had left the hospital and died, before later changing her account
The Tribunal also noted that while the collateral fact rule bars extrinsic contradictory evidence on a collateral issue, it does not preclude likely relevance in a third-party records motion.
The Tribunal’s Analysis on Whether Production was in the Interests of Justice
The Tribunal then determined whether the records should be produced, balancing the factors under section 42.2(3), which are:
(a) the regulatory nature of the proceedings;
(b) the primary purpose of the proceedings, which is to protect the public and regulate the profession in the public interest;
(c) the privacy interest of the complainant in the records sought; and
(d) the nature and purpose of the records.
This analysis highlighted that different considerations apply when the patient records at issue do not belong to the complainant. Because the records were not sought to attack the patient's credibility and bore no connection to myths or stereotypes, privacy concerns were found to be weaker. The records also had potentially high probative value on the central allegation.
The Tribunal therefore decided to review the records and then ordered production of all records relating to the hospital site, a scope justified by the disorganized chart and the small additional privacy impact.
Conclusion
This case provides helpful insights into how section 42.2 of the Code is interpreted when the third-party records that are being sought belong to someone other than the complainant, and also has helpful guidance on the likely relevance analysis in third party records motions in general. LII)
