Juanita Crook v. Ontario Cancer Treatment and Research Foundation and the Ottawa Regional Cancer Centre, 1995 CanLII 18134

ONTARIO BOARD OF INQUIRY

Date: October 23, 1995
File: 93-0070

B E T W E E N:

Juanita Crook

COMPLAINANT

A N D:

Ontario Cancer Treatment and Research Foundation and the Ottawa Regional Cancer Centre

RESPONDENTS

INTERIM DECISION

Adjudicator: Professor T. Brettel Dawson

Date: October 23, 1995

Board File No.: 93-0070

Decision No.: 95-045-I

Counsel for the Commission: Ms. Geri Sanson

Counsel for the Complainant: Ms. Karen Clifford

Counsel for the Respondent: Mr. Michael Kennedy and Mr. Robert Little

Introduction

1. By letter of appointment dated May 05, 1994 (Exhibit 1), I was appointed as a Board of Inquiry to hear and decide a complaint made by Dr. Juanita Crook (the Complainant) dated March 13, 1991, against the Ontario Cancer Treatment and Research Foundation (OCTRF) and the Ottawa Regional Cancer Centre (ORCC) (the Respondents) alleging discrimination on the basis of sex by reason of denial of sick leave benefits during a period of pregnancy-related leave (Exhibit 2). The hearing commenced by way of conference call on May 31, 1994 and dates for the commencement of the hearing in person were set for June 26-30, 1995. A case conference was held on March 13, 1995 (the report of which has been filed by agreement of the parties as Exhibit 8). Notice of a constitutional question with respect to section 25(2) of the Human Rights Code, R.S.O. 1990, c. H.19 (the Code) was given by the Ontario Human Rights Commission (the Commission) to the Attorney Generals of Ontario and Canada on May 15, 1995.

2. In the period leading up to the substantive hearing, it became apparent that a number of preliminary issues could not be agreed between counsel and would require my determination. Written submissions and authorities were filed and a further conference call was convened on June 15, 1995 to permit me to hear oral argument. On June 19, 1995, I released my decisions on the preliminary matters raised. These are my written reasons.

3. In broad outline, the factual context accepted for the purposes of preliminary motions (but subject to proof in the normal fashion at the hearing) indicates that Dr. Crook is a Radiation Oncologist with the OCTRF working out of ORCC in Ottawa. She gave birth on April 10, 1990 and was on leave from her employment between the period of her delivery to the end of June 1990. In her complaint, she alleges that she indicated to her supervisor that she planned to use vacation credits and take sick leave following the birth of her child. However, in the event, she did not receive any paid sick leave. Documentation was obtained from two medical practitioners: her own physician, Dr. Cormier who provided a medical certificate dated May 07, recommending absence from work until July 01 for "medical reasons" and a letter dated June 07, stating the medical reasons (specific illness) for the recommendation for time off work. At the request and nomination of the Respondents, Dr. Crook obtained a second opinion on June 29, just prior to her return to work, from Dr. Boudreau, an M.D. and psychiatrist. Her consequent letter of July 06, 1990 indicated that Dr. Crook had "legitimate grounds for the medical leave."

The Preliminary Matters Stated and Determinations Summarized

4. In the course of correspondence and argument in the June 15 conference call, a number of preliminary matters were raised. These included the mode of appropriate service of documents on the Complainant by the Respondents (a matter agreed to be pursued between counsel and the Complainant after the conference call), the propriety of provision of a Book of Documents to me prior to the conference call, and the admissibility of five documents in that Book. The heart of the preliminary questions, though, was a motion by the Respondents that the Board order the Commission to call as witnesses, the two physicians who authored medical reports concerning the Complainant. The Commission proposed to file the reports only without calling the physicians. An underlying purpose of the Respondents' motion was to have the physicians available for cross-examination on their medical evidence. The matter of cross-examination was further pursued upon the commencement of the hearing in person and I include reasons for decision upon that matter as well. The Respondents also sought disclosure by the Commission of the complete medical files concerning the Complainant held by the physicians. At the commencement of the hearing in person, the question of disclosure of the medical file of one of the physicians, Dr. Boudreau, was again raised. The Commission countered in part, requesting that the Respondents' motions be considered an abuse of the process of the Board. The Commission also sought disclosure of the Respondents' case, including its position, the witnesses it intended to call and evidence and documents planned to be introduced, including material related to a potential argument under section l of the Canadian Charter of Rights and Freedoms (the Charter). The Commission raised, but deferred, the possibility of adding a further ground of Complaint.

5. My decisions on each of these motions were as follows and were released to the parties on June 19, 1995 [CHRR Doc. 95-220]. I ruled that the provision of the Book of Documents was not inappropriate and that the five documents placed in question during the conference call were admissible. I denied the Respondents' motion that the Commission call the physicians and their motion for complete disclosure of their medical files on the Complainant. I denied the Commissions' motion that the matters raised by the Respondents constituted an abuse of the Board's process and denied the Commission's motion for disclosure of the Respondents' case, although urging further discussion between counsel to permit orderly preparation and to avoid the potential for further delay. On matters raised at the commencement of the hearing in person, I held, first, that if the Respondents called Dr. Boudreau, they would be permitted to cross-examine her, and, second, that upon testifying, she should make available her clinical notes related to her June 29, 1990 examination of the Complainant. It is noteworthy that Dr. Boudreau was the Respondents' nominated medical examiner.

Reasons for Decision

The Book of Documents

6. The Respondents argued that the Book of Documents for the Commission had been inappropriately provided to me by the Commission and requested an Order requiring its collection from me. There was some dispute as to whether a specific indication of Commission counsel's intention to provide the documents had been given but this matter is not determinative. Commission counsel emphasized that the Book of Documents contained "Respondents documents" which she did not anticipate would be in question, and that the Respondents would have an opportunity to speak to the admission into evidence of the documents. She submitted that the documents were necessary to provide an evidentiary context or foundation for the determination of the preliminary matters, and that the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (the S.P.P.A.) permitted a broad approach to the admission of oral and documentary material. She also argued that Re City of Toronto and CUPE, Local 79 (1982), 1982 CanLII 2229 (ON CA), 35 O.R. (2d) 545, has established, for the purposes of making decisions on admissibility of reports, that a Board (in that case an arbitration board) "must give careful consideration to [documents in question — — in that case, a Report] which necessarily implies that [a] Board could peruse the report to the extent necessary for reaching its decision." The Court of Appeal concluded that this was "clearly the correct method to be followed by the Board in considering admissibility" (at p. 557). As such, in Commission counsel's submission, the Respondent's general objection lacked substance.

7. I conclude that the provision of the Book of Documents to me by the Commission in advance of the conference call was appropriate in the circumstances to permit the documents on which counsel proposed to rely to be before me in the hearing. Of importance are the breadth of potential admissibility and perusal of documents, together with the proximity of a hearing. In my June 19 ruling, I emphasized that prior to receipt into evidence or cognizance by me, documents would be subject to arguments concerning admissibility and weight; and, indeed, I heard arguments on the admissibility of the various particular documents as they were referred to and relied upon n submissions. I also assured Respondents' counsel that I did not intend generally to review documents prior to their introduction or consideration in the hearings.

Admission of Documents

8. The admissibility of five documents was raised before me. The documents in question were three medical certificates/letters and two documents authored by the Manager of Compensation and Benefits.

9. Counsel for the Respondents did not object to the admission of the medical certificates. These certificates were marked as exhibits: (Exhibit 3: Medical Certificate for Juanita Crook, dated May 07, 1990 signed by Dr. Cormier; Exhibit 4: Letter of Dr. Cormier to Dr. Evans re Juanita Crook dated June 07, 1990; Exhibit 5: Letter of Dr. Boudreau to Dr. Evans re Dr. Juanita Crook dated July 06, 1990.)

10. With respect to the remaining two documents in issue, authored by the Manager of Compensation and Benefits, much concern was expressed by counsel for the Respondents that the admission of these documents, at this time, might result in me "prejudging" issues which should be the subject of evidence and submission in the hearing. He submitted that the correct interpretation of the documents was subject to argument or clarification and that they would be better brought in through the witness. In one of these documents (Exhibit 7, infra), Ms. Brundrit indicates that she had said to Dr. Crook that she was "not disputing the legitimacy of her illness but [was saying] that it [the illness] occurred when she was on leave of absence and did not qualify for payment." This statement might well suggest that the Respondents had not raised the issue of Dr. Crook's medical condition earlier and even, that they had conceded the legitimacy of her stated illness. To this extent, they related to the Commission's argument that the Respondents could not now seek to place in question the Complainant's medical condition as a central issue for determination, and one which required oral testimony from the physicians.

11. These two documents were respondent-originated, appeared necessary to permit an evidentiary context to be laid for the argument on the preliminary matters, and would be subject to normal considerations as to weight and contestation by other evidence in the hearing. As such, I concluded that they should be admitted. These documents were marked as exhibits (Exhibit 6: Letter from Patricia Brundrit, Manager of Compensation and Benefits, Human Resources Department, to Dr. Juanita Crook dated August 16, 1990); Exhibit 7: Notes from Telephone Conversation with Dr. Crook on October 18, 1990 signed by Patricia Brundrit on October 18, 1990)

Attendance of the Two Physicians Who Issued the Medical Certificates:

12. By motion, the Respondents requested that the Commission be required by the Board to call as witnesses, the two physicians who prepared the medical certificates/letters. Implicit in this motion, were that the Commission be responsible for arranging the physicians' attendance, and that, as Commission witnesses, they be subject to cross-examination by the Respondents. The Respondents sought to test the medical evidence in this way because, in their submission, they "dispute the assertion that the Complainant was unable to work due to an illness. Accordingly, the Complainant's medical condition will be a central issue."

13. The Board was informed that, prior to the conference call, the Respondents, out of caution in light of rapidly approaching hearing dates, had served a summons on Dr. Boudreau and had attempted to serve a summons on Dr. Cormier. The Board was further informed that Dr. Boudreau had a prior committment to be at a medical conference in British Columbia during the dates of the hearing, that her consultation with the Complainant was a single consultation conducted with the Complainant at the request of the Respondents, and that she had essentially no recollection of it beyond what had been included in the copy of her report. The Board was also informed that Dr. Cormier now resides in the U.S. but had indicated that he would be available by conference call should the Board determine that his viva voce evidence was required. I suggested in my June 19 decision, that Dr. Cormier, being out of the jurisdiction, would not seem to be compellable by the Board. The point was accepted by the Respondents (at the commencement of the hearing in person) and Dr. Cormier's attendance was not further pursued. My reasons, then, apply primarily to the situation of Dr. Boudreau.

14. Much argument was urged upon me and much ink could be spilled on the matter of the physician's attendance. Interesting legislative history and jurisprudence was raised in relation to the development in civil proceedings of provision for written (and hence hearsay) medical reports to be tendered in lieu of oral evidence and personal attendance by physicians. Cases submitted and considered by me (e.g., Kapulica v. Dumancic, 1968 CanLII 419 (ON CA), [1968] 2 O.R. 438; Briand v. Sutton (1986), 1986 CanLII 2494 (ON HCJ), 57 O.R. (2d) 629; Ferraro v. Lee (1974) 1974 CanLII 440 (ON CA), 2 O.R. (2d) 417; Harris v. Windsor Air Line Limousine (1985), 6 C.P.C. (2d) 156, explored the delicate balancing of risk and onus, type of proceeding and legal issue, and questions of election and presentation of evidence. They also explored that factors relevant to the exercise of judicial discretion in this regard, all in relation to section 52 of the Evidence Act, R.S.O. 1990, which provides that

52(1)

Any medical report obtained by or prepared for a party to an action and signed by a legally qualified medical practitioner licensed to practice in any part of Canada is, with the leave of the court and after at least seven days notice has been given to all other parties, admissible in evidence in the action.

This section applies in civil proceedings and deals with admissibility and process.

15. At the end of the day, however, it is my determination that proceedings of a Board of Inquiry are governed by the parameters and provisions of the S.P.P.A., rather than the rules of civil procedure and the Evidence Act. This was made clear in West End Construction Ltd. v. Ontario Human Rights Commission (1989), 1989 CanLII 4088 (ON CA), 62 D.L.R. (4th) 329 [10 C.H.R.R. D/6491] where the applicability of para 45(1)(h) of the Limitations Act, R.S.O. 1980 c. 240, to human rights complaints was in issue. That section limits the time for commencement of "an action for a penalty, damages or a sum of money." Findlayson J.A., for the Court of Appeal, held that "action" refers to "'civil proceedings' instituted in a variety of ways by a person seeking a remedy for a civil wrong." He continued,"[w]hat occurs under the Code is more analogous to a civil proceeding than to a penal or criminal one, but it does not invoke the machinery of the civil process . . ." (at p. 339, [C.H.R.R. para. 45733]).

16. The S.P.P.A. gives Boards wide, discretionary lattitude to admit hearsay documents into evidence and without personal attendance of their authors. Section 15 of the S.P.P.A. gives an administrative tribunal the discretion to admit into evidence any oral testimony or documents or other things (including hearsay evidence) whether or not it would be admissible in a court of law provided that it is "relevant to the subject matter of the proceeding." (see e.g., Ellis and Ministry of Community and Social Services (1980), 1980 CanLII 1883 (ON HCJ), 28 O.R. (2d) 385; Re Merrick (1985) 1985 CanLII 2099 (ON HCJ), 49 O.R. (2d) 675, on this point and a related point that the scope can vary according to constituting legislation). Section 16 permits a tribunal to take notice of a wide variety of facts and opinions. At the heart of the process is a discretionary assessment against the backdrop of the need to safeguard a fair hearing with relevant evidence. (See further Re Girvan and Consumers Gas Company (1973), 1973 CanLII 706 (ON HCJDC), 40 D.L.R. (3d) 509.)

17. In Re Municipality of Metropolitan Toronto and CUPE, Local 79 (1992), 1992 CanLII 14555 (ON LA), 25 L.A.C. (4th) 73, the admissibility of certain medical reports in the absence of the physician was in issue in a labour arbitration. The Chairman of the Board (Springate) reviewed a number of arbitration award decisions on the matter ultimately holding (at p. 80) that "the general arbitral practice is to accept a medical report into evidence without requiring that the doctor who prepared it be called as a witness." In support, he referred to the reasoning on this point in Re Petro-Canada Products (Clarkson Refinery), August 3, 1989. There, the arbitrator reviewed a number of decisions under section 52 of the Evidence Act and other arbitral decisions and concluded that whether or not the author of a medical report is to be directed to provide oral testimony is properly a matter within the discretion of the trier of fact and law. In the judicial exercise of that discretion, the fundamental issue is the significance or weight that is to be attached to the medical reports. The absence of the author can mitigate against relying on the contents. However, the circumstances in which the reports were made and their content may satisfy the arbitrator that the authors are not required to give viva voce evidence. A cogent dissent was given in CUPE, Local 79 by Ms. Bowlby. However, while emphasizing the central concerns of natural justice, which in her view mitigated in favour of oral attendance in that case, she accepted the existence of a discretion in the decisionmaker (citing Briand) and she interpreted Petro Canada as positing that reports may be admitted "without requiring the authors to give oral testimony if there are reasons for doing so" (at p. 83).

18. In this case, where I have already admitted the reports into evidence and the question is whether their authors should also be called by the Commission in order to be available for cross-examination, the matter falls to be considered in the exercise of discretion: assessing the reasons. I have considered the S.P.P.A. and the various authorities cited to me. In note that in the case before me, the written reports are clear and straightforward and there is no reason to doubt their authenticity. They do not appear to have a bearing on credibility issues, and were prepared at the request of the Respondents who have had knowledge of them throughout. The reports were prepared contemporaneously to matters subject to the Complaint. The reports are in agreement, or at least, do not contradict each other. Counsel for the Respondents indicated that he does not intend to call further or different medical evidence at the hearing in person, which suggests that they will stand uncontradicted on medical evidence. I have concluded that the medical certificates are appropriately admitted in this case without the additional (or alternative) requirement that the Commission call the physician(s) who authored them give oral testimony.

19. I will add that I am mindful of comments made by another Board considering an issue of discrimination related to pregnancy, in the case of Emrick Plastics v. OHRC (1992), 1992 CanLII 8545 (ON CTGDDC), 16 C.H.R.R. D/300 that:

It is paternalistic, patronizing and unreasonable for a lay employer, without objective medical evidence, to sit in judgement of the reasonable, informed medical opinion a woman receives from her own medical specialist. It is unreasonable for an employer to say that it simply will not accept the opinion of a woman's medical specialist, even though the employer has no objective evidence or medical opinion to the contrary (at p. D/303).

20. I have concern about the potential damage of testing these kinds of reports through oral evidence and cross-examination. Other avenues for medical assessment were open at the time and at least some of the agents of the Respondent appear to have accepted the validity of the medical reports. I find persuasive Commission submissions that going behind such reports in these circumstances risks interfering with a core value of professional relationships and responsibilities in the context of an ongoing employment relationship.

21. My conclusion not to require the Commission to call the physician(s), does not preclude the Respondents from calling and arranging for the attendance of the physician(s) should they wish to pursue the matter further.

Cross-Examination

22. As noted, at the commencement of the hearing in person on June 26, 1995, when the Respondents indicated their intention to call Dr. Boudreau as a witness, I heard further argument on the range of examination that would be permitted. The Respondents submitted that they should have the right of cross-examination, while the Commissions argued that the right of cross-examination would not apply because the physician should be regarded as the Respondents' own witness.

23. Upon considering the submissions and examining the cases, I ruled that the Respondents would be permitted the right of cross-examination should they indeed call Dr. Boudreau. The logic of the matter was well put in the civil case of Kapulica, supra. In that case, the exercise of judicial discretion to admit medical records in lieu of personal attendance pursuant to section 52 of the Evidence Act was in issue. The Court of Appeal noted that the tendering of a medical report in lieu of personal attendance constituted the physician as the witness of the party tendering the report,"as if he had produced him in court and examined him under oath" and "if in the same trial [the witness] is brought into Court and placed in the witness box, he continues to be the witness of the party who tendered his report. He is subject to cross-examination upon evidence given orally but also on the evidence given by means of the medical report" (at 442). A right to cross-examination was also accepted in Re Municipality of Metropolitan Toronto and CUPE, Local 79 (1992), 1992 CanLII 14555 (ON LA), 25 L.A.C. (4th) 73 and Briand. (Elks and Merrick, supra, are distinguishable, given the express statutory authorization for written reports and implicit limitations on the compellability of the authors.) The right of cross-examination has, on occasion, been referred to as a "paramount right" (e.g., Briand, at 630). Although I have exercised my discretion against requiring the Commission to produce Dr. Boudreau as a witness, her written report is evidence lead by the Commission in lieu of her oral testimony. As such, a right of cross-examination should be given to the Respondents should they "put her in the witness box" at sometime in the hearing. The Commission would also have a right of re-examination.

Disclosure of the Complainant's Medical Records

24. Relatedly, the Respondents renewed their earlier request for disclosure of Dr. Boudreau's medical file/clinical notes. I address this motion, made at the commencement of the hearing in person, before moving on to discuss my reasons for decision in denying the Respondents preliminary motion for complete disclosure of both physicians medical records.

1. Dr. Boudreau's Clinical Notes

25. In the context of Dr. Boudreau being called as a witness by the Respondents and being subject to cross-examination on the medical certificate/letter which she wrote in relation to the Complainant, I ruled that Dr. Boudreau produce her clinical notes and records made in conjunction with her June 29, 1990 examination of the Complainant and that I would not review or assess the notes prior to their release to the parties (cp. V. v. R. (1994), 1994 CanLII 7569 (BC CA), 118 D.L.R. (4th) 699; R. v. K.A.D. (Ont. Prov. Ct, Brockville, Masse P.C.J., July 29, 1994); R. v. O'Connor (1994), 1994 CanLII 8746 (BC CA), 90 C.C.C. (3d) 257). I indicated that, pursuant to section 12 of the S.P.P.A., these documents should be produced by the witness upon her attendance at the hearing. That section does not permit advance discovery, and it has been held that if, upon production, consideration is necessary, an adjourment -may be granted. Of relevance is the decision in Joe v. University of Toronto Library Department, (Board of Inquiry, November 4 ,1994) [reported 1995 CanLII 18192 (ON HRT), 25 C.H.R.R. D/472 at para. 120], where, after a review of the case law, the Board concluded, at p. 53,"what is important under section 12(1) . . . is the timing of the summons — it must be when the evidence is to be produced at the hearing not beforehand. Production beforehand has been viewed as a form of prehearing discovery for which there is no authority under the [ S.P.P] Act." Of course, with the passage of Bill 175 amending the S.P.P.A., the Board of Inquiry may make rules to govern mutual disclosure and this has in fact occurred.

26. The factors supporting this ruling include that the notes are short, there is a strong presumption that they relate to the single consultation rather than an ongoing physician/patient relationship, and they relate to a matter sought to be placed in issue as of direct relevance: Dr. Crook's medical condition at the time. The consultation appears to have been arranged as a second opinion at the request of the employer. It can be implied that the purpose of the consultation was to seek confirmation of illness and it took place at a time when the Complainant knew that her employer was in dispute with her about coverage under the sick leave policy. As such, an expectation of privacy may have been more limited. I have noted that Dr. Boudreau has indicated that she has a limited recollection of matters beyond those contained in her report, and, I would presume, notes she took at the time. Unlike evidence of Dr. Cormier (both a brief certificate and letter with fuller findings), hers is a brief letter which contains conclusions only and not the factual underpinnings on which they were based. While this was not a problem in terms of my initial order not to require her to attend in person to give evidence, it becomes relevant in light of her being called by the defendant and my ruling to permit cross-examination.

2. The Preliminary Motion for Complete Disclosure of Medical Files

27. A different range of considerations attach to the Respondents preliminary motion seeking an order that "the Commission make its best efforts to obtain the production of the doctors' complete medical files with respect to the Complainant. In order to provide the Respondents with an opportunity to review those files, production should be made forthwith," and any refusal to produce the documents reported. The Respondents submitted that a party is entitled to the production of all documents that are "arguably relevant", that the test for production is lower than the test for admissibility in the hearing, and that policy reasons support full disclosure in Boards of Inquiry. The Respondents submit that the Court of Appeal has held that all pertinent medical records should be produced during the civil discovery process and that to permit full cross-examination, all clinical notes should be produced. The matter is placed as one of fairness and the entitlement of respondents to fully challenge the evidence.

28. I do not propose to overly extend these already lengthy reasons by an exhaustive discussion of the law in this area, but instead will outline why I do not consider it correct to order disclosure before the hearing of the complete medical files of Dr. Crook with the two physicians who prepared the medical certificates. In brief, I consider the request to be untimely, overbroad and without sufficient evidentiary basis.

29. A Board of Inquiry is empowered by section 12 of the S.P.P.A. to "require any person, including a party, by summons (b) to produce in evidence at an oral or electronic hearing documents or things specified by the tribunal". As noted, jurisprudence had established that a Board did not have an ability to order prehearing production. Section 12 itself confers "a summons power akin to the issuance of a subpoena duces tecum by which a witness is compelled to attend the hearing and produce documents into evidence": Johnson v. East York-Board of Education (1988), 1988 CanLII 8872 (ON HRT) at D/4792. (See also Joe v. University of Toronto Library Department, supra). Section 8 of the S.P.P.A. does not authorize full disclosure prior to the hearing but rather the provision of particulars, of "reasonable information of any allegations" with respect to any allegations of good character, propriety of conduct or competence. Particulars must be given in order that the case to be met is known (see also Joe, supra, January 3, 1995). The House decision ( Christian v. Northwestern General Hospital (No. 2) (1993), 1993 CanLII 16511 (ON HRT), 20 C.H.R.R. D/492) has expanded the disclosure obligation of the Commission by requiring the fruits of the Commission's investigation to be disclosed to the respondent(s) but it does not, in my view, extend to matters not within the scope of Commission investigation and documents not held as part of the file. In light of the governing legislation and the established jurisprudence, at the time of hearing argument and reaching my decision in June 1995, I conclude that the Respondents' request is untimely. With the introduction of the Board of Inquiry Rules made under the S.P.P.A., effective August 1995, mutual disclosure is now required.

30. The respondents seek:

"every document the doctors have that might cast light on the Complainant's medical condition. This includes documents that precede and follow the summer of 1990. The documents might explain the basis of the doctors' conclusions. The documents may indicate that there was an insufficient or improper basis for the doctors' conclusions. The presence or absence of previous or subsequent complaints of stress may cast doubt on the validity of the alleged illness" (Respondents written submisssions at p. 6).

31. In support, they cite several cases, all of which arose in the context of civil litigation for damages for personal injury. In Cook v. Ip (1985), 1985 CanLII 163 (ON CA), 52 O.R. (2d) 289 (C.A.), release of plaintiff medical reports was sought from the Ontario Health Insurance Plan (OHIP) and was ordered because, as Mr. Justice Cory made clear,"the production of the medical records [was] fundamental to a court's determination of the nature, extent and effect of the injuries which may have been suffered and the appropriate damages flowing from them" (at p. 292). In his view:

No doubt medical reports are private and confidential in nature. Nevertheless when damages are sought for personal injuries, the medical condition of the plaintiff both before and after the accidents is relevant. In this case, it is the very issue in question. The plaintiff himself has raised the issue and placed it before the court. In these circumstances there can no longer be any privacy or confidentiality attaching to the plaintiff's medical records.

32. In that case, the plaintiff himself sought release of the medical records and the reasoning suggests that the type of proceeding implied a kind of waiver to the normal confidentiality and privacy rights which protect such records from routine disclosure. As will be clear, the circumstances in this case vary significantly. The role of the medical evidence has been discussed earlier in relation to the personal attendance of the physicians. Determination of the nature, extent and effect of injuries or the Complainant's medical condition is not the central inquiry in this human rights proceeding. It is noteworthy that in another civil case, Kaptsis v. Macias (1990), 1990 CanLII 6675 (ON HCJ), 74 O.R. (2d) 189, where clinical notes and records were ordered disclosed prior to the trial of an action for damages for personal injury, Moldaver J. commented,"if a party chooses to simply file and rely upon an expert report at trial then there would be no requirement to produce the clinical notes and records" (at 190). (see also Wilton v. Brown (1993), 22 C.P.C. (3d) 249.)

33. The policy factor of confidentiality is of great importance. If the Complainant's good faith (bona fides) in alleging the illness is to be placed in issue, this need not hinge on what is in the records, and I would not reach into the compendious medical files and the heart of the confidential medical relationship in order to offer the Respondents the chance of finding such intimations. Respondents/defendants are not permitted to conduct a "fishing expedition" in the hopes of finding something that might be useful to their cases. The privacy interests inhering in medical records particularly mitigates against such an occurrence.

34. Statements which capture the quality of the sensitivity of medical records include that of the Supreme Court in McInerney v. MacDonald, [1992] S.C.R. 138 at 148, 153: "Of primary significance is the fact that the records consist of information that is highly private and personal to the individual. It is information that goes to the personal integrity and autonomy of the patient . . . The duty of confidentiality that arises from the doctor-patient relationship is meant to encourage disclosure of information and communication between the doctor and patient.". The right to maintenance of that confidentiality was then referred to as being "absolute unless there is some paramount reason that overrides it" (at p. 154). I am mindful of the caution contained in Madam Justice L'Heureux-Dube in R. v. Osolin (1993), 1993 CanLII 54 (SCC), 86 C.C.C. (3d) 481 at 498-99,"routine disclose of medical records and unrestricted cross-examination upon disclosure threaten to function very unfairly against anyone who has undergone mental or psychiatric therapy whatever the precipitating event or nature of the treatment."

35. The circumstances indicated to date, in my opinion, simply do not support a wholesale opening of the Complainant's medical records to the Respondents. Nor would it be an appropriate policy development to require public agencies, such as the Commission, to obtain such information from complainants or their physicians in order to disclose it to respondents. The information is not within their possession, would not normally be part of their investigation, and, in my view the House decision does not go this far as to dictate that the Commission should obtain or disclose this information.

Abuse of the Process of the Board:

36. Under section 23 of the S.P.P.A., a Board of Inquiry has the power to "make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes."While the Commission argues that the Respondents are seeking to raise the issue of the Complainant's medical condition on the "eve of the hearing", it is the Respondent's position that they have disputed the matter for some two years. I do not think that, on the material before me, an abuse of the Board's process arises per se and at this time from the Respondents' requests for the attendance of the physicians and the related request for disclosure and production of medical records.

Provision of Notice of Respondent's case

37. In light of my conclusions with respect to pre-hearing disclosure at the time of the hearing and decision in June 1995, discussed in connection with disclosure of the medical records, it will be apparent that I do not consider that I had the authority at that time to order mutual disclosure on the Respondents (see esp. Joe, supra, and cases discussed therein; also Lewis v. York Region Board of Education, Board of Inquiry, Interim Decision 21 Sept. 1994, Gorsky [CHRR Doc. 94-151]). It is obviously desirable that certain information be exchanged to permit the orderly preparation of the hearing and to avoid possible requirements for adjournment. In that context, submissions on the law and on the practical situation were entertained and direction was given and accepted at the hearing.