Executive Summary: Key Legal and Evidentiary Issues

• Scope of a patient’s “lockbox” directive under Ontario’s Personal Health Information Protection Act, 2004 (PHIPA) when a physician records information in the medical chart after the directive.
• Application of PHIPA s. 19(2), which allows health professionals to record personal health information where required by law or professional standards, despite conditions placed on consent.
• Reasonableness of the Information and Privacy Commissioner (IPC) decision not to proceed with a complaint, given its broad statutory discretion to decline review.
• Evidentiary weight of electronic medical record time stamps and absence of evidence of tampering in assessing an allegation that a progress note’s date was falsified.
• Proper forum and statutory mechanism under PHIPA s. 55 for challenging the accuracy or tone of medical record entries, as distinct from a privacy complaint.
• Alleged procedural unfairness in the IPC’s handling of the complaint, including whether all documents were considered and whether the analyst maintained an open mind.

Background and facts of the dispute

The case arises from a dispute between a patient, Mr. Rishi Talwar, and his former physician, Dr. Tomas Fogl, concerning access to and entries in Mr. Talwar’s health record. In December 2022, Mr. Talwar informed Dr. Fogl that he did not want him to continue as his doctor and issued what is commonly called a “lockbox” request. In effect, he directed that Dr. Fogl not collect, use, or disclose his personal health information. Mr. Talwar repeated this lockbox directive in telephone calls with Dr. Fogl on 18 January 2023.
On 28 January 2023, Mr. Talwar filed a complaint with the Information and Privacy Commissioner of Ontario (IPC) relating to the lockbox directive. That first IPC complaint ended when Mr. Talwar received confirmation from Dr. Fogl that the lockbox directive had been implemented and the IPC closed the file.
Separately, Mr. Talwar complained about Dr. Fogl to the College of Physicians and Surgeons of Ontario (CPSO) and later sought a review of the College committee’s decision to the Health Professions Appeal and Review Board (HPARB). When he received HPARB’s record of investigation, he discovered that a note had been added to his medical record dated 18 January 2023.

Second IPC complaint and alleged improper access

After learning of the 18 January 2023 progress note, Mr. Talwar filed a second complaint with the IPC. In this second complaint, he alleged that, notwithstanding his lockbox directive, Dr. Fogl had accessed his health record and added information to it after the directive took effect. He also asserted that the date on the progress note was falsified, arguing that the note had been created at some later time but backdated to 18 January 2023.
In support of his position, Mr. Talwar referred to information he said was available from Ottawa Police Service Constable Smith, and to materials from the CPSO/HPARB processes. He maintained that these materials would show the note was inaccurate or improperly dated and that the physician’s access to his information was unauthorized in light of the lockbox.

The IPC analyst’s decision not to proceed

On 31 January 2025, an IPC analyst issued a decision declining to proceed with Mr. Talwar’s second complaint through the IPC complaints process. The analyst determined that the creation of the 18 January 2023 progress note did not contravene PHIPA.
The analyst relied in particular on s. 19(2) of PHIPA, which provides that if an individual places a condition on consent regarding collection, use, or disclosure of personal health information, that condition is ineffective to the extent that it purports to prohibit or restrict recording of personal health information required by law or by established standards of professional or institutional practice. In other words, a lockbox cannot prevent a health professional from making chart entries mandated by law or professional standards.
The analyst reasoned that recording all patient encounters is an established professional standard for physicians, and concluded that this standard authorized Dr. Fogl to add the progress note to Mr. Talwar’s medical record on 18 January 2023. She found no breach of PHIPA on that basis.
On the allegation that the note was falsified or backdated, the analyst was not persuaded. She examined the electronic medical record system’s time stamps, which indicated the date and time when the note was signed, and found no evidence of unauthorized alterations or irregularities that would suggest creation on a different date. She concluded that expert evidence was not required to reach this view on the face of the record.
To the extent that Mr. Talwar argued the progress note was inaccurate or incomplete in substance, the analyst pointed him to the separate correction mechanism in PHIPA. Under s. 55, individuals may request that custodians correct personal health information they consider inaccurate or incomplete, with an ensuing right to complain to the IPC if a correction request is refused. The analyst viewed issues of accuracy and tone of the note as falling within that correction pathway, rather than within the scope of the privacy/access complaint before her.
The analyst further found that Mr. Talwar’s allegations about how the 18 January 2023 telephone call unfolded, and about the tone of the progress note, were outside the scope of the complaint for similar reasons. In her view, concerns about professional conduct or bedside manner were better suited to other forums, such as the CPSO complaint process, rather than a PHIPA privacy complaint at the IPC.

Procedural fairness and the IPC’s handling of the complaint

Mr. Talwar argued on judicial review that the IPC’s decision was procedurally unfair. He claimed that the analyst had not adequately considered the documentation and information he provided and that she should have contacted Constable Smith, who he said had relevant evidence about what occurred on 18 January 2023.
The Divisional Court reviewed the process followed by the analyst. Before issuing her final decision, the analyst sent Mr. Talwar a preliminary letter on 6 December 2024, expressing her tentative view that the 18 January 2023 documentation was an authorized use of personal health information under PHIPA. In that letter, she invited submissions from Mr. Talwar in response. He made submissions, and also sent several additional emails elaborating his position. Only after receiving and considering those submissions did the analyst issue her final decision declining to review the complaint.
The court held that this process afforded Mr. Talwar a full opportunity to be heard. The fact that the final outcome did not accept his position did not render the process unfair. His procedural fairness complaints largely overlapped with his argument that the analyst failed to consider all his materials, which the court rejected.

Standard of review and the IPC’s discretion

In assessing the judicial review, the Divisional Court applied the reasonableness standard to the IPC decision, consistent with Supreme Court of Canada authority in Canada (Minister of Citizenship and Immigration) v. Vavilov. The court also noted the well-established principle that the IPC enjoys a broad discretion under PHIPA to decide whether to review a complaint. Under s. 57(4) PHIPA, the Commissioner may decline to review the subject-matter of a complaint “for whatever reason the Commissioner considers proper.” Appellate guidance in Hopkins v. Kay had already emphasized that this broad discretion makes judicial review of such decisions an “expensive and uphill fight” for complainants.
The court found that this case illustrated exactly that dynamic. The IPC analyst had specific legislative support for her reasoning in s. 19(2) of PHIPA. Once she concluded that documenting patient encounters is an established professional standard, it followed that the lockbox directive could not prevent Dr. Fogl from recording the 18 January 2023 interaction in the chart. The Divisional Court held that this interpretation and application of PHIPA were reasonable.

Evidentiary assessment: time stamps, alleged falsification, and Constable Smith

A central evidentiary dispute concerned Mr. Talwar’s allegation that the 18 January 2023 progress note was falsified or backdated. The IPC analyst relied on the time stamps generated by the electronic medical record, showing when the note was signed, and observed there was no evidence of “unauthorized alterations or irregularities” suggesting the note was created on a different date. On judicial review, the Divisional Court agreed that it was open to her, on the face of the record, to reach that conclusion without expert evidence.
The court addressed Mr. Talwar’s argument that the analyst was required to contact Constable Smith. It held there were two reasons why it was reasonable for her not to do so. First, the IPC had decided not to undertake a review at all; a full review might have involved gathering additional information and evidence, but the core of the decision was that no review would be conducted, because s. 19(2) justified the chart entry. In that context, the analyst was not obliged to contact further witnesses.
Second, the alleged inaccuracy of the statements about Constable Smith in the note was properly categorized as an issue of record accuracy, not access or unauthorized use. That accuracy question falls within the PHIPA s. 55 correction process, which Mr. Talwar had not pursued. Given the availability of that specific statutory remedy, the analyst reasonably treated the accuracy complaint as outside the scope of the PHIPA privacy complaint she was assessing.

Findings on procedural fairness and reasons

The Divisional Court concluded that the IPC’s process was procedurally fair. It rejected the suggestion that the analyst had prejudged the matter or improperly indicated that she believed the physician before hearing all parties.
In particular, the court examined an email from the analyst to counsel for Dr. Fogl, where she said she had no reason to disbelieve the doctor’s account of the timing of the progress note based on their first conversation, while also indicating she was seeking further information in response to Mr. Talwar’s position. Importantly, this email was sent after she had received Mr. Talwar’s submissions and additional emails reacting to her preliminary letter. The court held that her continued efforts to obtain information from the physician demonstrated that she kept an open mind.
The court also reiterated that administrative decision-makers are not required to address every piece of evidence or argument in detail. The analyst’s written reasons stated that she had “thoroughly reviewed” all documentation, and she specifically referenced the items Mr. Talwar sought to emphasize, including alleged statements by Constable Smith and the CPSO committee decision. She explained why those materials did not persuade her that the note was created with a falsified date. The court was satisfied that she meaningfully engaged with the central issues and was not required to provide more granular commentary on each document.

Overall outcome and monetary consequences

In the result, the Ontario Divisional Court dismissed Mr. Talwar’s application for judicial review. It upheld the IPC analyst’s decision as reasonable, both in her interpretation of PHIPA s. 19(2) and in her conclusion that the lockbox directive could not stop the physician from making a chart entry required by professional standards. The court also found no breach of procedural fairness in the way the IPC handled the complaint, including its treatment of the evidentiary record and its decision not to contact additional witnesses such as Constable Smith.
The successful parties in this case were the respondents: the Information and Privacy Commissioner of Ontario and Dr. Tomas Fogl. Neither respondent sought costs, and the court ordered none. Accordingly, there was no monetary award, damages, or costs granted in favour of any party, and no total amount can be stated beyond noting that the financial consequence of the decision was effectively zero.