Daniel Touseant v. The Corporation of the City of Thunder Bay, Steve Stankevicus and Darrell Matson, 2009 HRTO 1138

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daniel Touseant

Applicant

-and-

The Corporation of the City of Thunder Bay,

Steve Stankevicus and Darrell Matson

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: July 24, 2009

Citation: 2009 HRTO 1138

Indexed as: Touseant v. Thunder Bay (City)

1This is an Application dated November 12, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The underlying complaint in this matter was filed with the Ontario Human Rights Commission on May 9, 2008. This matter is proceeding to a Case Resolution Conference (hearing) on September 10 and 11, 2009 in Thunder Bay.

2The purpose of this Interim Decision is to address the Request for Order filed by the respondents on June 24, 2009, requesting an order permitting them to file documents which disclose health information relating to the applicant that was obtained from the Workplace Safety and Insurance Board. The applicant objects to this Request.

3The Application alleges discrimination in employment because of disability arising out of a workplace injury suffered by the applicant in 2003. The applicant alleges that: he returned back to work in 2005 in an accommodated position that was restricted in hours; that since then, he has not been successful in bidding for other jobs which the applicant alleges is due to the awareness of his injury by some supervisors; that he has watched over 15 people exceed him in seniority; and that he has been disadvantaged in relation to his entitlement to statutory holidays.

4The respondents deny discrimination and allege that: the applicant was returned to an accommodated position in accordance with his restrictions as communicated by the WSIB and that his hours have been increased as required by the WSIB; that the applicant has not been successful in bidding for jobs either because the successful applicant had greater seniority or because the applicant could not perform the essential duties of the position; that the applicant has continued to accumulate seniority in accordance with the collective agreement; and that the applicant has received his appropriate entitlement to statutory holidays.

5The respondents state that they need to rely upon documents disclosed to them by the WSIB which contain medical information relating to the applicant in order to support their defence to the Application. The respondents state that they relied upon the information in the documents disclosed to them by the WSIB in order to provide appropriate accommodation to the applicant.

6The respondents state that, in the absence of an order from the Tribunal, they are prohibited from filing these documents with the Tribunal as a result of ss. 59(6) and 181(3) of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A (“WSIA”) which provide as follows:

59(6) The employer and the employer’s representatives shall not disclose any health information obtained from the Board except in a form calculated to prevent the information from being identified with a particular worker or case.

181(3) No employer or employer’s representative shall disclose health information received from a health care practitioner, hospital, health facility or any other person or organization about a worker who has made a claim for benefits unless specifically permitted by the Act.

7In my view, while these provisions certainly may restrict the voluntary disclosure of such information by an employer, they cannot operate to prevent an employer from filing with a court or another administrative tribunal documents which it requires for its defence to a claim made against it. Accordingly, I find that these provisions of the WSIA do not prohibit the respondents from filing documents received from the WSIB that contain health information about the applicant upon which they need to rely in their defence.

8The applicant objects to the filing of these documents on the basis that they are not relevant, as the hearing before this Tribunal relates to alleged discrimination because of his disability as opposed to the accommodation of his workplace injury. It is not at all clear to me from the file that the accommodation of the applicant’s disability is not an issue that needs to be addressed in this case. On the face of the complaint, the applicant alleges that he returned to work in 2005 in an accommodated position that was restricted in hours, which appears quite directly to raise an issue about his accommodation. Further, the applicant raises an issue about being denied certain positions allegedly because of his disability, and the respondents’ defence is that at least in relation to one of those jobs, the applicant’s medical restrictions prevented him from performing the job’s essential duties. Health information received from the WSIB about the applicant may very well be relevant to that position being taken by the applicant.

9Accordingly, for the sake of allaying the respondents’ concern about contravening provisions of the WSIA, I make the following order:

The respondents are directed and authorized to file with the Tribunal documents upon which they intend to rely on at the Case Resolution Conference which disclose health information relating to the applicant that was obtained by them from the WSIB.