HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Stephanie Murchie, a.k.a. Stephanie McIntyre

Complainant

-and-

JB’s Mongolian Grill, Andrea Conyers, Angela McQueen and Nic Odd

Respondents

INTERIM DECISION

Adjudicator: Mary Ross Hendriks

Date: October 5, 2005

Citation: 2005 HRTO 38

Human Rights Tribunal of Ontario 400 University Avenue, 7th Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@jus.gov.on.ca Website www.hrto.ca

APPEARANCES

Ontario Human Rights Commission ) Eddie Taylor, Counsel

Stephanie Murchie, a.k.a. Stephanie McIntyre, ) Complainant ) On her own behalf

JB’s Mongolian Grill, Corporate Respondent ) Andrew Camman, Counsel

Andrea Conyers, Personal Respondent ) On her own behalf

Angela McQueen, Personal Respondent ) On her own behalf

Nic Odd, Personal Respondent ) On her own behalf

INTRODUCTION

1The Complaint before the Human Rights Tribunal of Ontario (the “Tribunal”), dated August 9, 2002, involves a woman who claims that her right to equal treatment with respect to employment without discrimination on the basis of sex has been violated, and states that she was sexually harassed in the workplace. She further claims to have suffered reprisal, contrary to sections 5(1), 7(2), 8 and 9 of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”).

2The Complainant, Ms Stephanie Murchie, has apparently changed her surname to McIntyre since her Complaint was filed, and so until there is a motion to amend the title of proceeding, the Tribunal will refer to her as “Stephanie Murchie, also known as Stephanie McIntyre.”

MOTION

3This is a motion brought by the Corporate Respondent for an Order that the Complainant produce copies of “all clinical notes and records with respect to her mental/psychological stability, and any such treatments she has undergone.” In the affidavit filed in support of the motion, the Corporate Respondent alleges that the Complainant has “behaved erratically in the workplace prior to the alleged harassment incident,” gave particulars of the event alleged, and suggested that such behaviour suggests “psychological impairment,” which goes to the root of her credibility. It therefore requests production of her medical documentation for use during her cross-examination.

4Counsel for the Commission filed a response, opposing this motion. In it, the Commission states that it has made full disclosure, that the Complainant has not made any reference to any medical treatment, that such documents do not exist in any event, and that the request lacks a logical basis because the Complaint “involves allegations of sexual harassment, not discrimination based on disability.”

5The motion was heard on September 8, 2005, by teleconference, with all parties present, and oral submissions were made.

DECISION

6The Tribunal hereby confirms the ruling made at the conclusion of the hearing of the motion on the merits on September 8, 2005, that the motion is dismissed.

ANALYSIS

7There is no nexus between the Complaint, which is based on allegations involving sexual harassment and reprisal, and this request. At no time has the Complainant put the issue of her psychological state in issue in these proceedings. As such, her clinical notes and records, if any exist, are irrelevant to these proceedings.

8The Tribunal routinely assesses the credibility of parties and the reliability of their testimony. There is nothing particularly unique about this case that would compel the Tribunal to depart from its normal adjudicative practice. The allegations made by the Corporate Respondent about the Complainant’s behaviour in the workplace can be entered into evidence at the appropriate time, and then subject to cross-examination and reply. The Tribunal will assess what weight to give those allegations in due course, along with all the other evidence heard.

9In McEwan v. Commercial Bakeries Corp. (No.1) (2004), CHRR Doc. 04-290, 2004 HRTO 13, this Tribunal had to balance the competing interests of a Complainant’s right to privacy versus the Respondents’ right to have sufficient opportunity to advance their case, where the key issue in dispute was whether or not the Complainant was disabled, as claimed. The Tribunal found that the Complainant’s medical records in that case more than met the test of arguable relevance, and directed the Complainant to sign a release so that the Tribunal could inspect those medical documents and then determine if they were of actual relevance to that proceeding. Once it had done so, the Tribunal found that the medical documents had met the test of arguable relevance and ordered its Registrar to provide copies of them in their entirety to all parties. See: McEwan v. Commercial Bakeries Corp. (No.2) (2005), CHRR Doc. 05-142, 2005 HRTO 2.

10Thus, McEwan (No.1), supra, is distinguishable on its facts from this case because the test of arguable relevance has not been met.

11While the facts are distinguishable, the law remains constant. As in McEwan (No.1), supra, at paragraph 26, the Tribunal finds the reasoning of the majority in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 at 480, cited by (then) Madam Justice L’Heureux-Dubé in her dissent M. (A.) v. Ryan 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157 at paragraph 84, illuminating:

There is no question that the right to make full answer and defence cannot be so broad as to grant the defence a fishing licence into the personal and private lives of others.

ORDER

12In accordance with these reasons, the Tribunal confirms that it has made the following order:

(1) The motion for production of the Complainant’s clinical notes and records is hereby dismissed.