HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission Commission

-and-

Robert Davis Complainant

-and-

City of Toronto Respondent

INTERIM DECISION

Adjudicator: Mary Ross Hendriks Date: February 16, 2005 Citation: 2005 HRTO 7

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: Raj Dhir, Counsel and Richard Miller, Student-at-Law Robert Davis, Complainant: Jonathan Strug, Counsel City of Toronto, Respondent: David Mahoney, Counsel and Deputy Chief Frank Lamie

INTRODUCTION

1The Respondent’s counsel brought four motions, one heard on consent and the balance opposed by counsel for the Complainant and by counsel for the Ontario Human Rights Commission (the “Commission”), for an Order seeking production of certain medical records, related letters sent to doctors, income information, and for an Order compelling the Complainant to attend an examination of the Complainant’s knee by a doctor of the Respondent’s choosing. The motions were heard on January 14, 2005.

BACKGROUND

2On December 7, 2000, the Complainant filed a complaint with the Commission in which he alleged that the Respondent had violated his right to equal treatment with respect to employment without discrimination because of handicap, now disability, contrary to sections 5(1) and 9 of the Ontario Human Rights Code, R.S.O. 1990, c.H. 19 (the “Code”). In particular, the Complainant contends that the Respondent refused to hire him as a firefighter based on what the Respondent perceived to be a present or future disability, despite medical evidence that he suffered no functional limitation to his knee. The Complainant also alleges that he was subjected to unequal treatment in employment based on a perceived disability, which is discriminatory.

3The Respondent denied the allegations, and has pleaded that the Complainant did not truthfully answer all the questions on its standard medical history form, which was a condition of employment. In particular, the Respondent alleged that the Complainant had failed to disclose his knee injury, and that he had undergone an arthroscopy, which the Respondent contends is a form of “surgery.” Moreover, the Respondent has contended that after the arthroscopy, the Complainant was diagnosed with osteoarthritis. Thus, the Respondent has alleged in para.13 of its pleading, that the Complainant deliberately failed to disclose “known medical conditions, specifically the football injury, his osteoarthritic knee and his arthroscopic surgery,” and that his “false responses constitute a breach of trust with this prospective employer and are an independent and valid reason for withdrawing the conditional offer made on June 21, 1999.” The Respondent has also contended, in para.14 of its pleading, that Mr. Davis’ knee “is currently a significant safety concern and is not willing to accept that risk.”

4During the Pre-Hearing Conference Call, held on October 14, 2004, the Tribunal noted that the pleadings had been filed and were now closed, and asked if there were any procedural issues or motions to be dealt with prior to the onset of the hearing on the merits. Counsel for the Complainant and counsel for the Commission said that they did not anticipate bringing any motions at this time. The Respondent advised the other parties and the Tribunal that it would be bringing two motions: the first seeking production of certain medical records, and the second, seeking an Order for a mandatory examination of Mr. Davis’ knee by a doctor of the Respondent’s choosing.

5The hearing on the merits is scheduled for February 28-March 3, March 7-10, and March 14-16, 2005.

MOTIONS

6The Respondent brought the following four motions:

(1) for production of medical records, regarding: (a) the knee arthroscopy performed in 1995 by Dr. Cameron, including but not exhaustive of: (i) the pre-operative consult note by the orthopaedic surgeon who performed the surgery; (ii) the surgical note of the surgeon; (iii) the full hospital chart for Mr. Davis’ admission; and (iv) the patient questionnaire submitted by Mr. Davis; and (b) any medical records, including but not exhaustive of radiological reports, clinical notes or medical reports with regard to his left knee from the date of the original injury in 1983 to the present;

(2) for production of the following correspondence: (a) the letter written by Mr. Davis to Dr. Cameron dated December 20, 1999, as referred to in Dr. Cameron’s letter to Beth Symes dated January 7, 2000; and (b) the letter written to Beth Symes by Dr. Cameron dated December 13, 1999, which allegedly caused Mr. Davis to write to Dr. Cameron;

(3) for production of income information for the years 1999 to present, specifically any Revenue Canada T-1 income tax returns, summaries, notices of assessment, T-4 forms from employers for those years and all information with respect to employment and job searches for those years, including self-employment, for those years; and

(4) to undergo a physical examination of Mr. Davis’ left knee by a medical expert chosen by the Respondent, in this case an orthopaedic surgeon.

ISSUES

7The Tribunal has considered the following issues:

(1) Whether the documents in question are arguably relevant to the matters in issue; and

(2) Whether the Tribunal has the jurisdiction to order a physical examination of a party.

DECISION

8The motion for production of income information is granted on consent. The motion for production of the medical records for the relevant time period is granted. The motion for production of the correspondence sought is granted. The motion for a physical examination of the Complainant’s left knee by a medical expert chosen by the Respondent is dismissed.

ANALYSIS

The Duty to Disclose in the Context of the Medical Records Sought

9It is settled law that everyone owes a general duty to give evidence relevant to the matters in issue, so that the truth may be ascertained, see: M. (A.) v. Ryan 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157. The test for production is arguable relevance, which is “not a particularly high bar,” see: Biederman v. Banfai (2000), 2000 CanLII 49403 (ON HRT), 38 C.H.R.R. D/395 (Ont. Bd. Inq.) at para.14.

10The Tribunal’s Rules of Practice, dated July 2004, set out the obligation to make disclosure as between the parties, in Rules 41 to 48. In particular, the Tribunal has the discretion to direct further disclosure, under Rule 47, which states:

47. At any time in a proceeding, subject to determining any claim of privilege asserted, a panel may order any party to deliver to any other party particulars, physical or documentary evidence, expert reports, lists of witnesses and witness statements for the purpose of the hearing and anything else the panel considers appropriate for a full and satisfactory understanding of the issues in the proceeding.

11Similarly, the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, allows the Tribunal to make orders for disclosure, pursuant to section 5.4, which provides:

5.4(1) If the tribunal’s rules made under section 25.1 deal with disclosure, the tribunal may, at any stage of the proceeding before all hearings are complete, make orders for,

(a) the exchange of documents;

(b) the oral or written examination of a party;

(c) the exchange of witness statements and reports of expert witnesses;

(d) the provision of particulars;

(e) any other form of disclosure.

12Counsel for the Respondent argued that the Respondent consistently stressed the medical issues involved in this matter throughout its correspondence with counsel for the Complainant, and is not satisfied with the disclosure made. It is the Respondent’s position that arthroscopy is “a surgical procedure orthopaedic surgeons use to visualize, diagnose and treat problems inside a joint,” see: Respondent’s Book of Authorities, p. 335, citing the American Association of Orthopaedic Surgeons’ Online Service Patient Education Brochures’ definition of “Arthroscopy.” No evidence nor any submission was offered by either counsel for the Complainant or the Commission to refute the Respondent’s preliminary submission that arthroscopy involves a surgical procedure, rather than being a procedure more akin to an x-ray or ultrasound. One item on the Respondent’s medical history form under the subtitle, “PAST HISTORY” was marked “Surgery,” and the Complainant had completed it as “N/A,” see: Respondent’s Book of Documents, at p.2.

13Counsel for the Respondent argued that the nature of the medical issues involved is relevant to the Complainant’s credibility, and may ultimately go to the issue of remedy.

14Counsel for the Complainant spoke at length about the Complainant’s state of mind when completing the medical history form, and how he believed that the arthroscopy was irrelevant because he had no functional limitation in his left knee. Moreover, counsel for the Complainant said that his client has made full and complete disclosure, participated in the City’s medical and radiological examinations with Dr. Forman, Chief Medical Officer, and with Dr. MacAdam, that he has provided the Respondent with numerous medical reports from specialists who examined him in 1999, which indicate he has no functional limitation in his left knee, that he underwent a medical examination by a third party orthopaedic surgeon agreed upon by counsel, and that the Respondent is simply never satisfied with the explanation given.

15It is clear from the motion materials filed and from the able arguments of all counsel that the medical records pertaining to Mr. Davis’ left knee, met the test of arguable relevance, and should be disclosed in their entirety, up to the time when the Respondent communicated its refusal to hire him: being August 28, 2000. The details of the 1995 arthroscopy met the test of arguable relevance, since they predate his application for employment, and are relevant to the manner in which he completed the Respondent’s medical history form.

16Because the medical documents requested concern the Complainant’s left knee at the time of the arthroscopy, the Tribunal does not have to concern itself with the spectre of granting a “fishing licence” into the Complainant’s medical history, and thus directs that they be produced, as opposed to inspecting them first, see: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 at 480, cited by Madam Justice L’Heureux-Dubé in her dissent in M.(A.) v. Ryan, supra, at para.84.

17Some of the medical documents concerning the Complainant’s left knee, now being sought by the Respondent, are under the control of non-parties: assuming they still exist. The Tribunal relies on the Court of Appeal’s decision in Ontario Human Rights Commission v. Dofasco (2001), 2001 CanLII 2554 (ON CA), 57 O.R. (3d) 693 at para 51, where it held that:

It is generally agreed that if documents under the control of non-parties are important to the fair and accurate resolution of issues it is preferable that they be produced before the hearing to avoid almost inevitable adjournments if they are produced for the first time at the hearing…and to enable each side to prepare its case more effectively…

18The Tribunal is not prepared to order disclosure of medical documents that go beyond the date on which the Respondent communicated its decision not to hire the Complainant: being August 28, 2000, since they do not meet the test of arguable relevance vis-à-vis the alleged discrimination in this matter.

The Duty to Disclose in the Context of the Correspondence Sought

19None of the counsel spent much time arguing about the request for the production of correspondence between Mr. Davis and Dr. Cameron, dated December 20, 1999, or the letter from Dr. Cameron to Ms Symes, dated December 13, 1999.

20In the Respondent’s motion materials, it made the following submissions concerning the context behind these documents:

7. In a series of letters between Beth Symes and Darrel Smith, counsel for the Respondent, the issue of the Complainant’s answers on the History Form were discussed. In a letter dated January 19, 2000 which was to address the reason for the Complainant’s arthroscopy, Ms Symes enclosed a letter to her from Dr. Cameron dated January 7, 2000. Dr. Cameron writes “Mr. Davis has written to me in a letter dated December 20th 1999 with concerns regarding my note to you of the 13th December 1999 regarding the reason for his in-patient admission in September 1995”. Dr Cameron went on to write that the patient admission form states “osteoarthritis of the left knee” as the reason for admission. Dr. Cameron’s December 13, 1999 letter has not been disclosed. As well, the Complainant’s personal letter to Dr Cameron troubles the Respondent, when the December 13, 1999 report was obviously addressed to Ms. Symes. The Respondent submits that both the December 13, 1999 letter from Dr. Cameron to Ms. Symes and the December 20, 1999 letter from the Complainant to Dr. Cameron are relevant to the issue of the Complainant’s conduct in completing the Medical History form.

8. The Respondent is requesting production of documents that are relevant to the Complainant’s knowledge and information regarding 1995 surgical procedure and his knowledge of his “end-stage osteoarthritis of the lateral compartment of his knee with moderate medial and patello-femoral arthritis”.

21In the Respondent’s Book of Documents filed in support of this motion, on p.30, is a letter from Dr. Cameron to Ms Symes, dated January 7, 2000. It provides as follows:

Mr. Davis has written to me in a letter dated December 20th 1999 with concerns regarding my note to you of the 13th of December 1999 regarding the reason for his in-patient admission in September 1995. The details of this admission are on the hospital chart along with the patient questionnaire documenting the reason for admission, as submitted by the patient. There is a notation with regard to the reason for admission, which was osteoarthritis of the left knee. The rationale for the arthroscopy was to further document the extent of the osteoarthritis, to determine a prognosis based on the present pathology, and to determine whether further operative intervention would be of benefit to the patient.

It was determined at the time of the arthroscopy that further operative intervention was not indicated, given the level of his function and the degree of his osteoarthritis.

I trust that this is the information that Mr. Davis request that I convey to you.

22The Tribunal is thus satisfied on the evidence before it that Mr. Davis did write to Dr. Cameron on December 20, 1999, and that Dr. Cameron wrote to Ms Symes on December 13, 1999, both with respect to the 1999 arthroscopy performed on Mr. Davis’ left knee.

23Counsel for the Complainant has not claimed privilege over the correspondence from Ms Symes to Dr. Cameron. Rather, counsel for the Complainant has maintained that these documents are not relevant to the proceedings, and to the key issues of discrimination involved. Counsel for the Complainant asserted that his client believed the radiological evidence was irrelevant because he had no functional limitation in his left knee. In other words, his client simply viewed the matter as an old “football injury” that resulted in no loss of function, and so his client had no “reason” to relate his left knee to the Respondent’s medical history form.

24At this juncture, the Tribunal has considered the relevant provisions of its Rules of Practice, the SPPA, supra, and the test of arguable relevance, with respect to the motion for production of these two letters. The Tribunal has concluded that these two letters meet this low threshold for production, since they are closely linked to the medical information that has been produced by Dr. Cameron with respect to the arthroscopy performed on the Complainant’s left knee.

Production of the Complainant’s Income Information

25Counsel for the Complainant stated in his motion materials and in his submissions that he agrees this information ought to be produced.

26Thus, the Tribunal directs that this information shall be produced to all parties.

The Respondent’s Request for a Medical Examination

27Counsel for the Respondent spent a considerable amount of time arguing quite insistently that the duty of fairness demands that the Respondent be allowed to have its own “expert” examine the Complainant, which in this instance, means that the Respondent be permitted to choose an orthopaedic surgeon to examine Mr. Davis’ left knee. He contends that since the Complainant has raised the issue of his medical status, and asserts that he has the physical ability to perform the tasks of a firefighter, that the Respondent must assert the Complainant’s inability to do the job based on medical issues.

28Counsel for the Respondent provided the Tribunal with an extensive Book of Authorities. He made lengthy submissions, vis-à-vis the issue of whether the Tribunal has the jurisdiction to order a medical examination conducted by a physician of the Respondent’s choosing, based on an analogy to the combined effect of Rule 33 – Motion for Medical Examination of the Rules of Civil Procedure and section 105 – Physical and mental examinations of the Courts of Justice Act, R.S.O. 1990, c.C. 43; some labour arbitration decisions where such orders have been made in the absence of clear statutory authority; some human rights panel decisions from other jurisdictions where this issue has been considered and in some instances granted; a few human rights decisions from this jurisdiction that indicate that “the board is master of its own process,” see: Samuel Nimako v. CN Hotels (1985), 1985 CanLII 5248 (ON HRT), 6 C.H R.R. D/2894 (Ont. Bd. Inq.) at para 23567, and a divorce proceeding in which a party claimed that her physical and emotional condition rendered her unable to support herself and the court exercised its discretion to expand discovery to include a right of psychiatric and medical examination, see: Proctor v. Proctor (1979), 1979 CanLII 2736 (ON HCJDC), 103 D.L.R.(3d) 538 (Ont. Div. Ct.) and 1980 CanLII 1731 (ON CA), 112 D.L.R. (3d) 370 (Ont.C.A). He maintains that a party’s “quaint Victorian reluctance” to submit to a medical examination should not override the principle of fairness, see: Respondent’s Book of Authorities, at p.67, citing Homested and Watson, Ontario Civil Procedure, Thomson-Carswell: 2004, at p.33-8, in turn, citing James & Hazard, Civil Procedure (2nd ed.) 197.

29The Tribunal appreciates the effort that Respondent’s counsel made to provide it with these authorities, and has reviewed them carefully. The Tribunal notes, however, that none of these authorities are binding on this Tribunal.

30Counsel for the Complainant and for the Commission were equally insistent that the Tribunal lacks the jurisdiction to order a Complainant to submit to a physical examination. Moreover, they argued strenuously that even if the Tribunal does have such jurisdiction, the facts of this case do not warrant such an order.

31Counsel for the Complainant and for the Commission each made submissions that there is nothing in the Code, the SPPA, or the Tribunal’s Rules of Practice that allow the Tribunal to order a medical examination of a party. Moreover, they highlighted that the Tribunal, unlike the courts, lacks the inherent jurisdiction to make an order of such a physically intrusive nature where the Tribunal lacks the express authority. They noted that the Tribunal, unlike the courts, also lacks the express power to make such an order flowing from the Rules of Civil Procedure and the Courts of Justice Act, supra.

32Similarly, they argue, labour arbitrators derive their power from sources quite distinct from human rights law and jurisprudence. By way of contrast, counsel for the Commission referred to the Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16, Sched. A, sections 35 and 36, which specifically empower the Workplace Safety and Insurance Board to order workers to submit to a health examination by a health professional selected and paid for by the Board or the employer.

33There is no question that courts have greater jurisdiction than the Tribunal. However, it is clear to the Tribunal that when courts order medical examinations, they are relying heavily on the substantive power they derive expressly from section 105 of the Courts of Justice Act, rather than Rule 33 of the Rules of Civil Procedure, which gives them the requisite procedural mechanisms to achieve that result. See: the Respondent’s Book of Authorities, p. 67, Holmested and Watson, Ontario Civil Procedure, Thomson-Carswell: 2004, p.33-7, where it states:

SCOPE AND PURPOSE OF SECTION 105 AND RULE 33

[1] Scope

Rule 33 has to be read together with the Courts of Justice Act, s.105. Indeed, it is s.105 that is the source of the court’s power to order medical examinations, and as to the ordering and the conduct of the examination Rule 33 is largely procedural. However, it is the Rule which sets forth the important provisions with respect to the pre-trial disclosure of medical reports: see rules 33.04 and 33.06.

34While the Tribunal agrees that it is “master of its own process,” neither the Code, the SPPA nor the Tribunal’s Rules of Practice specifically empower the Tribunal to make an order requiring a party to undergo a medical examination, and the Tribunal declines to do so.

35The Rules of Civil Procedure are regularly reviewed by the Civil Rules Committee, a blue-ribbon panel of legal experts headed by the Chief Justice and Associate Chief Justice of Ontario, and are subject to the approval of the Lieutenant Governor in Council, see: section 65 and 66 of the Courts of Justice Act, supra. The Courts of Justice Act, supra, and the Code, supra, were also promulgated by the Ontario Legislature and may be reviewed and amended by it from time to time.

36Thus, medical examinations of parties that are ordered by the courts because the parties themselves did not consent to such examinations fall within well-established, clear legal authorities, which are not only procedural but also substantive in nature, see: Rule 33 of the Rules of Civil Procedure and section 105 of the Courts of Justice Act, supra. There are no such well-established legal authorities before the Tribunal, and the Tribunal declines to create them by way of analogy in this matter, for several reasons.

37First, the Tribunal is of the view that if such orders requiring medical examinations of parties without their consent are to be made as part of the regular discovery process, they should be made within clear legal parameters established by the Legislature, that balance the needs of the parties while maintaining the dignity of the individual. The Preamble to the Code speaks to the public policy mandate to “recognize the dignity and worth of every person.” Although the Code does not define “dignity,” it was defined by the Supreme Court of Canada in Law v. Canada (Ministry of Employment and Immigration) (1999), 1999 CanLII 675 (SCC), 170 D.L.R. (4th) 1 at para.53, as follows:

Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with the physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities or merits…Human dignity is harmed when individuals and groups are marginalized, ignored or devalued, and is enhanced when laws recognize the full place of all individuals and groups within society. [emphasis added]

38Secondly, on the facts of this case, the Respondent has already had the benefit of three other medical examinations of this Complainant by doctors of its own choosing, and such an order is not necessary in order to have a fair hearing in any event.

39The Complainant submitted to a physical examination by Dr. Noah Forman, Chief Medical Officer of the Respondent, which was a term of the Respondent’s conditional offer of employment. This included a further radiological examination conducted by Dr. MacAdam, who sent Dr. Forman a report, dated June 22, 1999. See: the Respondent’s Book of Documents, pp. 1-7.

40The Complainant, disappointed with Dr. Forman’s negative recommendation, wrote to him on August 13, 1999, and attached four medical diagnoses from his own specialists. See: the Respondent’s Book of Documents, p. 7.

41As a result of an exchange of correspondence between counsel for the Respondent and counsel for the Complainant, which included more medical reports prepared at the behest of the Complainant, counsel agreed that the Complainant ought to be reviewed by a “third party orthopaedic surgeon,” who was Dr. Ogilvie-Harris, although the Respondent stated that it would not be bound by Dr. Ogilvie-Harris’ report. See: Respondent’s Book of Documents, p. 20-23.

42Dr. Ogilvie-Harris examined the Complainant on June 6, 2000, as agreed to by all counsel. On June 2, 2000, counsel for the Respondent sent Dr. Ogilvie-Harris a copy of its job demands analysis for the position of firefighter, a training synopsis, the x-rays and report of June 22, 1999 sent to Dr. Forman, and the four medical reports obtained by the Complainant, from Drs. Zeldin, Saunders, Cameron and Carette, and consents from the Complainant to speak to these four doctors and his family physician, Dr. Tse. In his June 6, 2000 correspondence, Dr. Ogilvie-Harris was specifically asked by counsel for the Respondent for an opinion on the following two questions (see: Respondent’s Book of Documents, pp. 47-57):

(1) Is Mr. Davis medically capable of performing the tasks of a fire fighter. In particular, we require your opinion with respect to his left knee, and

(2) Does Mr. Davis’ knee pose a health and safety risk to him or others, should he undergo the training for, or become a fire fighter? We ask that your opinion consider the degree of the risk of injury to the left knee, the type of potential knee injury, and under what circumstances it may occur.

43Thus, the Tribunal is satisfied that the Respondent has had three medical examinations conducted by physicians of its choosing during the time of the Complainant’s application for employment. Furthermore, there is no evidence before the Tribunal that the Respondent sought any further medical examination of the Complainant at that time, but there is evidence that the Respondent communicated its decision not to hire the Complainant then. See: Respondent’s Book of Documents, p. 77, letter of January 12, 2001, confirming its August 28, 2000 decision not to hire the Complainant.

44The Tribunal is prepared to entertain a discussion of the current state of Mr. Davis’ health, only in terms of remedy, if and when that time arrives.

ORDER

45The Tribunal orders the following:

(1) The production of medical records regarding: (a) the knee arthroscopy performed in 1995 by Dr. Cameron; (b) the pre-operative consult note by the orthopaedic surgeon who performed the arthroscopy; (c) the full hospital chart for Mr. Davis’ admission for the arthroscopy; (d) the patient questionnaire submitted by Mr. Davis for the arthroscopy; and (e) any other medical records, radiological reports, clinical notes or medical reports with regard to Mr. Davis’ left knee from the time of his football injury in 1983 until August 28, 2000, when the Respondent communicated its decision not to hire him;

(2) The production of the letter written by Mr. Davis to Dr. Cameron dated December 20, 1999; and the letter written by Dr. Cameron to Beth Symes, dated December 13, 1999; and

(3) The production of income information from 1999 to present, as consented to by the parties.

Dated at Toronto, this 16th day of February, 2005.

“Mary Ross Hendriks”

Mary Ross Hendriks (Acting) Chair

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission Commission

-and-

Robert Davis Complainant

-and-

City of Toronto Respondent

ADDENDUM TO INTERIM DECISION

EXPLANATORY NOTE

Adjudicator: Mary Ross Hendriks Date: February 22, 2005 Citation: Addendum to 2005 HRTO 7

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: Raj Dhir, Counsel Robert Davis, Complainant: Jonathan Strug, Counsel City of Toronto, Respondent: David Mahoney, Counsel

INTRODUCTION

1On February 16, 2005, the Tribunal issued its Interim Decision, 2005 HRTO 7, with respect to four motions brought by the Respondent, which were heard by the Tribunal on January 14, 2005. Three of these motions were contested before the Tribunal.

2The Tribunal granted the motion for production of income information on consent. It also granted the motion for production of the medical records for the relevant time period, and the motion for the production of the correspondence sought. The Tribunal dismissed the motion for a physical examination of the Complainant’s left knee by a medical expert chosen by the Respondent.

3The Tribunal received a letter from counsel for the Ontario Human Rights Commission (the “Commission”) on February 18, 2005, asking that the Tribunal amend its Interim Decision, since the Commission had stated for the record that it only opposed one of the four motions, being the motion to require the Complainant to undergo a medical examination. The Commission had taken no position on the other two contested motions.

4The Tribunal also received a letter from counsel for the Complainant, dated February 18, 2005, asking for a conference call to discuss the timing of the hearing, in light of the time it may take to produce these additional documents.

5The Tribunal held a pre-hearing conference call on February 21, 2005, and all counsel were present.

DECISION

6The correction of the Commission’s position as stated its motion record is granted, although it has no effect whatsoever on the results reached by the Tribunal in its Interim Decision. The dates scheduled for the hearing on the merits are adjourned on the consent of all parties.

ANALYSIS

The Tribunal’s Review of the Commission’s Motion Record

7The Tribunal has reviewed the Commission’s motion record, and counsel for the Commission is correct that he took no position on the Respondent’s motions for production of medical records and for production of certain correspondence. Counsel for the Commission only contested the Respondent’s motion for a medical examination of the Complainant, which was also contested by counsel for the Complainant. The Tribunal apologizes for this oversight. However, the Tribunal notes that it was correct that the two motions for production of medical records and certain correspondence were contested by counsel for the Complainant. Despite the error with respect to the Commission’s position, the Tribunal’s Interim Decision is not impacted in any way.

8Clearly, the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22, allows the Tribunal to correct errors, pursuant to section 21.1, which provides:

21.1 A tribunal may at any time correct a typographical error, error of calculation or similar error made in its decision or order. [emphasis added]

9The Tribunal finds that this is an appropriate correction to make to its Interim Decision so that the record with respect to these two motions is accurate.

10In terms of the timing of the hearing on the merits, due to the anticipated time it will take to make further production, the parties have all consented to an adjournment of the scheduled dates, and have agreed to participate in a further pre-hearing conference call on March 16, 2005, at 10:00 a.m. (E.S.T.), to set new dates.

ORDER

11The Tribunal orders the following:

(1) This Explanatory Note shall be appended to the Interim Decision of February 16, 2005, 2005 HRTO 7, to reflect the fact that the Commission took no position on the Respondent’s motions for production of certain medical records and for production of certain correspondence, which motions were contested by counsel for the Complainant;

(2) On consent of all parties, the hearing on the merits scheduled for February 28–March 3, March 7–10, and March 14-16, 2005, is hereby adjourned; and

(3) On consent of all parties, a further pre-hearing conference call will be held on March 16, 2005, at 10:00 a.m. (EST), to set new dates for the hearing on the merits.

Dated at Toronto this 22nd day of February, 2005.

“Mary Ross Hendriks”

Mary Ross Hendriks (Acting) Chair