Elizabeth Lewis v. Markham Stouffville Hospital, 2009 HRTO 207

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Lewis

Applicant

-and-

Markham Stouffville Hospital, Barb Bitter, Helen Couperthwaite, Jennifer Wellman and Sharon Moore

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: February 26, 2009

Citation: 2009 HRTO 207

Indexed as: Lewis v. Markham Stouffville Hospital

1This is an Application filed November 10, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The purpose of this Interim Decision is to address a Request for Orders During Proceeding filed by the respondents on January 30, 2009 which follow:

1. directing the applicant to sign a consent for release of the medical portion of the applicant’s file from the Markham Stouffville Hospital’s (the “Hospital”) Occupational Health and Safety Department (“OHS Department”);

2. directing the applicant to sign a consent for release of her medical files from her treating physicians from June 13, 2006 to the present;

3. directing the applicant to sign consents for release of hospital admission records from all hospitals to which she was admitted from June 13, 2006 to the present;

4. requiring the applicant to disclose her tax records for 2006, 2007, 2008 and 2009 and her pay stubs for 2008 and 2009;

5. requiring the applicant to provide particulars of the incidents alleged at paragraphs 14, 19 and 37 of her statement of additional facts;

6. striking paragraphs 1 to 14 of the applicant’s statement of additional facts.

3The applicant was afforded an opportunity to respond to the respondents’ Request and she did so on February 9, 2009. The respondents filed their submissions in reply on February 20, 2009.

Cancellation of March 31, 2009 hearing date

4The Case Resolution Conference in this matter is scheduled to proceed on March 30 and 31, 2009. Due to a conflict in scheduling at the Tribunal, the hearing date currently scheduled for March 31, 2009 is hereby cancelled.

Bifurcation of the hearing

5The Tribunal proposes that the hearing in this matter be bifurcated, so that the Tribunal will first deal with issues of alleged liability and then subsequently, and only if a violation of the Code is found, deal with any issues of remedy. The parties are invited to make any written submissions regarding this proposal by no later than March 4, 2009. Pending receipt and consideration of the parties’ submissions on this issue, I will not at this time determine any requests made by the respondents that relate solely to issues of remedy, which includes item 4 above in its entirety and portions of items 1, 2 and 3.

OHS Department File

6The respondents’ request for access to the applicant’s entire OHS Department file is over-broad and not necessary for the proper adjudication of this matter. At the same time, if this file does contain records relating to the applicant’s request for modified duties due to pregnancy in 2007, including not only the documents submitted by the applicant but also any other relevant records in the file including any notes of discussions about the requested accommodation, such material is clearly relevant and should be disclosed. However, I am not prepared to compel the applicant to sign the consent filed by the respondents, which as currently drafted is over-broad. Rather, I am issuing an order that the relevant material from these files be disclosed. If there is any difficulty in obtaining compliance with this order, the respondents may raise that with the Tribunal.

The applicant’s medical records

7Once again, in my view, the request for access to the applicant’s medical files is over-broad. Most of the basis for the respondents’ request relates to issues of remedy, which are not being addressed at this time. The only two paragraphs from the applicant’s statement of additional facts that are cited in support of the respondents’ request and that do not relate to remedy are the excerpts from paragraphs 5 and 9. With regard to paragraph 5, there is nothing cited to indicate that the applicant consulted a doctor in relation to the symptoms alleged. With regard to paragraph 9, the applicant states that this was the last shift that she worked before being admitted to hospital, and therefore no issue of accommodation arises in relation to this allegation. Accordingly, this request is denied at this time.

The applicant’s hospital records

8For the same reasons as stated above, this request is over-broad and not relevant to the issue of liability and is therefore denied at this time.

Request for particulars

9With regard to paragraph 14 of the applicant’s statement of additional facts, the applicant alleges that a “staff” shared with her that during her pregnancy, she had been given a heavy patient load and had a miscarriage. The only potential relevance of this allegation to this proceeding is if the applicant is proposing to rely upon this evidence as “similar fact” evidence to support her claim that she was denied accommodation during her pregnancy. If the applicant intends to attempt to rely upon this evidence as similar fact evidence, and without expressing any view as to whether such evidence would be admissible in this proceeding, the applicant needs to provide particulars regarding the name of the staff member to which she is referring and the date upon which it is alleged that this staff member spoke to the applicant, and it is so ordered.

10With regard to paragraph 19 of the applicant’s statement of additional facts, this alleged incident bears directly upon the matters at issue in this proceeding. Accordingly, the applicant is required to provide the names of all individuals referenced in this paragraph.

11With regard to paragraph 37 of the applicant’s statement of additional facts, the issue of whether the applicant’s rights under the Code have been violated is a matter for determination by this Tribunal. While not necessarily precluding the applicant from giving evidence as to how and when she became aware of her rights under the Code, I do not believe it is relevant as to whom the staff member was who alerted her to the hospital website. Accordingly, the applicant is not required to disclose this staff member’s name.

Request to strike paragraphs 1 to 14

12The respondents seek to strike paragraphs 1 to 14 of the applicant’s statement of additional facts on the basis that they significantly expand the scope of the original complaint and refer to several incidents of alleged harassment and discrimination that were not mentioned in the original complaint.

13Having reviewed these paragraphs, and with one exception, I see these more as providing background regarding the applicant’s employment history as opposed to raising any new allegations of harassment or discrimination. The one exception is the allegation in paragraph 9 regarding a specific patient assignment. The applicant alleges that she was told by the Floor Nurse, who is a personal respondent, that she had heard that the applicant did not want this patient assignment and that the applicant needed to organize herself better. The applicant states that the Floor Nurse was saying that the applicant was unable to handle the patient because she wasn’t organized as opposed to because of her pregnancy. However, there is no indication that the applicant had requested accommodation for her pregnancy at this time, or expressly raised her concern with the Floor Nurse. In fact, the applicant expressly states that she “did not say a word” to the Floor Nurse on the occasion in question. So in the end, there is no basis upon the face of this allegation to support any finding of a Code violation.

14In addition, as discussed above, while paragraph 14 raises alleged similar fact evidence, this is not an expansion of the scope of the complaint but merely the assertion of alleged evidence that the applicant may seek to rely upon in support of her allegations. As stated above, if the applicant is seeking to rely upon this evidence, she needs to disclose the name of the “staff” referenced in paragraph 14.

15As a result, I do not find that paragraphs 1 to 14 of the applicant’s statement of additional facts improperly seeks to expand the scope of the complaint which forms the subject-matter of this Application, and the respondents’ request to strike these paragraphs is denied.

16For all of the foregoing reasons, I hereby make the following order:

1. the hearing date currently scheduled for March 31, 2009 is hereby cancelled and the Case Resolution Conference will proceed only on March 30, 2009;

2. the parties are to make submissions regarding the potential bifurcation of the hearing by no later than March 4, 2009;

3. the Hospital’s OHS Department is required forthwith to disclose to the parties any records relating to the applicant’s request for modified duties due to pregnancy in 2007, including not only the documents submitted by the applicant but also any other relevant records in the file including any notes of discussions about the requested accommodation;

4. the respondents’ remaining requests for disclosure and production are denied at this time, pending consideration of the bifurcation issue;

5. by no later than March 4, 2009, the applicant is required to disclose the names of all individuals referenced in paragraph 19 of her statement of additional facts and, if she intends to seek to rely upon this allegation as similar fact evidence, the name of the “staff” referenced in paragraph 14;

6. the respondents’ request to strike paragraphs 1 to 14 of the applicant’s statement of additional facts is denied.