Iley v. Sault Community Information and Career Centre, 2010 HRTO 1421

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tom Iley

Applicant

-and-

Sault Community Information and Career Centre Inc., Karol Rains, Robert Kerr and John Meadows

Respondents

INTERIM DECISION

Adjudicator: David Shannon

Date: July 8, 2010

Citation: 2010 HRTO 1421

Indexed as: Iley v. Sault Community Information and Career Centre

APPEARANCES BY

Tom Iley, Applicant ) Self-represented

Sault Community Information and Career Centre Inc., Karol Rains, Robert Kerr and John Meadows, Respondents ) Hugh N. MacDonald, Counsel

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) dated June 26, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on December 20, 2007.

2The Application alleges that the applicant experienced discrimination in employment because of disability due to an alleged failure to receive appropriate workplace accommodation following his diagnosis with Parkinson’s disease in March 2007 and further alleges that he was forced to go off work on disability leave.

3The hearing in this matter commenced in Sault Saint Marie on May 11, 2010.

4In an earlier Interim Decision, 2010 HRTO 880 issued April 22, 2010, the Tribunal ordered the applicant to produce certain documents including all clinical records, notes and reports from Dr. C. Mathew, one of the applicant’s treating neurologists.

5The applicant requested the medical records on April 29, 2010. They arrived late on May 5 and were faxed to the respondents by May 6 as directed in the Interim Decision.

6Counsel for the respondents noted that significant portions of the documents were redacted with what appears to be white-out. None of the documents were organized by index and it was difficult to determine the author. Without being able to know the content of the redacted documents, counsel indicated that he would be highly prejudiced in proceeding before the Tribunal. Furthermore, it would be necessary to receive these documents in order to determine whether the respondents wished to have the applicant undergo a functional assessment evaluation and/or neurological exam by their own expert witness.

7The respondents also asked that Dr. Mathew be called as a witness. He took the position that Dr. Mathew should be cross-examined respecting her letter dated April 10, 2010 that indicates the applicant could have worked for the respondents in a modified workplace. Counsel submitted that the letter lacked analysis as it was structured because it lacked particulars.

8The applicant’s representative raised a further concern that, if her client was unable to complete his oral evidence because all parties were to await further production of documents, then she would be prejudiced by the fact that her client could not provide instructions until his testimony was complete.

Disclosure of Medical Records

9The Tribunal is not bound by any particular rule that mandates the production of medical records. However, the test for production of medical records is the same as for other types of documents. That is, they must be of arguable relevance, as long as there is no fishing expedition into the applicant’s medical history. The Tribunal can order disclosure of medical records to itself, then may review the documents and, if arguably relevant, can order them disclosed. See: McEwan v. Commercial Bakeries Corporation, 2004 HRTO 13.

10Privilege with respect to medical records is decided on a case by case basis, balancing the general duty to produce all relevant documents and the invasion of the applicant’s privacy. If the medical records are arguably relevant, the Tribunal will order the applicant to provide the medical records for inspection by the Tribunal at the hearing in order to assess their relevance to the proceedings. See: McEwan supra; Davis v. Toronto (City), 2005 HRTO 7.

11Where the existence or severity of a disability is itself very much in issue, the Tribunal must engage in a balancing exercise. In such cases, the Tribunal must balance the general duty to require production of all arguably relevant material in disability cases so that respondents have sufficient opportunity to advance their case, versus the invasion of the applicant’s privacy vis-à-vis his confidential conversations and private records with his physicians. See: McEwan, supra.

12In the circumstances I adjourned the hearing. I direct the parties as follows:

• The applicant shall within 30 days of the date of this Interim Decision, produce to the respondents and file with the Tribunal, Dr. Mathew’s clinical notes, charts, and records that relate to why she believes the applicant can work at a modified workplace.
• The applicant shall index and number the documents he produces to the respondents.
• The applicant shall request a full consultation report from Dr. Mathew that provides an analysis of why she is of the opinion that the applicant could work in an accommodated workplace. Dr. Mathew may make specific reference to the respondents’ workplace requirements should she feel competent to do so.
• The applicant will produce unredacted documents to the respondents. Shall he wish to withhold medical documents based on a concern for his privacy, he may raise that issue by way of a Request For Order During Proceedings at the outset of the hearing when it re-commences. A determination as to relevance in accordance with the test and considerations outlined above shall be made, and the applicant further directed as to medical documents relevant for production should the question of privacy be raised.
• The respondents shall have until August 31, 2010 to make arrangements for the applicant to undergo a functional assessment evaluation, and or neurological assessment should they wish to do so based on the additional evidence produced.

13The Tribunal may make further case management directions. The Registrar-Transition will be in contact with the parties to schedule a further hearing date.