Those of us in the field of professional regulation tend (perhaps wrongly) to place more importance on court-level judgments than on tribunal decisions. While court-level pronouncements have greater precedential value, tribunal decisions can still provide meaningful learning for regulators. The decision of the Health Professions Appeal and Review Board of Ontario (HPARB) in Drake v Mueller, 2025 CanLII 1101 (ON HPARB), illustrates this point.
Mr. Mueller was a tenant and a patient of Dr. Drake, a dentist. When Mr. Mueller fell behind on his rent, Dr. Drake negotiated with Mr. Mueller to have him provide certain IT services to Dr. Drake, including installing cameras in Dr. Drake’s office. The relationship deteriorated. In part this was because Mr. Mueller overheard a conversation between a dental office staff member and her husband that was derogatory of Mr. Mueller. Mr. Mueller made various complaints about Dr. Drake including to the regulatory College and the Information and Privacy Commissioner of Ontario. In turn, Dr. Drake made a report to the police about Mr. Mueller that resulted in criminal charges, including for extortion, and a restraining order.
There was disputed information about the cameras. It appears that the cameras were intended to be both for the waiting area and the treatment operatories. Mr. Mueller says that the cameras were operational before the relationship ended, that they recorded both audio and video, and that the information was stored, at least in part, at Mr. Mueller’s business, thus creating a privacy breach. Dr. Drake says that the cameras in the treatment operatories were never operational and that he had no knowledge about their capabilities and storage.
The regulator imposed a remedial order requiring Dr. Drake to receive educational measures about his patient privacy obligations and to have monthly onsite monitoring for two years. Dr. Drake appealed. HPARB upheld the remedial order as being reasonable, particularly since Dr. Drake had previously been the subject of a complaint about patient informed consent issues.
Four lessons that other regulators can glean from this decision are as follows:
- Drake’s assertion that the complaint was made in bad faith, because of the breakdown of the relationship and in retaliation for the police complaint, was given little weight. The issue was whether Dr. Drake’s conduct was appropriate and not the motivation of the complainant.
- That the regulator had published articles on the use of video surveillance systems by dentists was accorded significant weight. Even though these articles were not formal “requirements” and had been issued years previously, that did not prevent HPARB from finding them helpful. At the complaints screening level, such guidance is useful in discerning what type of remedial measures might best protect the public.
- A sign in the waiting area that says: “These premises are under 24-hour video surveillance” is entirely inadequate when recording professional health services. One might view such a sign, if prominent, as creating implied consent for cameras in a reception area. However, for cameras in a treatment room, informed consent should be much more extensive, including perhaps the following:
- disclosure of the type of recording,
- disclosure of who can access the recording,
- disclosure of how the recording is stored and for how long,
- disclosure of the security protections in place to ensure the privacy of the recording, and
- documentation of the express consent in the patient’s chart.
- Monitoring whether the educational measures have been effective is remedial and not punitive. HPARB found that, in the circumstances, monthly monitoring visits were reasonable as “… the monitoring of the Applicant’s practice required by the Committee is directly related to concerns identified by the Committee, and finds that this monitoring will serve to provide additional remedial support and protection to the public.”
Other regulators may find this decision instructive.