HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sherri Stillo

Applicant

-and-

Toronto Transit Commission

Respondent

-and-

Amalgamated Transit Union, Local 113

Intervenor

INTERIM DECISION

Adjudicator: Ena Chadha

Date: October 22, 2010

Citation: 2010 HRTO 2133

Indexed as: Stillo v. Toronto Transit Commission

1The applicant filed an Application on July 29, 2010 under section 34(1) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) alleging discrimination with respect to employment on the basis of disability.

2The Application narrative is lengthy, consisting of over eighty paragraphs, setting out the applicant’s disability, work history, and accommodation needs. Much of the narrative details the applicant’s multiple job transfers and extensive involvement with the respondent’s Occupational Health office, a division of the respondent’s Human Resources department, as part of addressing her accommodation needs.

3On September 1, 2010, the Tribunal issued a Notice of Application to the respondent and the named affected party, Amalgamated Transit Union, Local 113, the applicant’s union. The Notice of Application notified the respondent that it was required to file its Response (Form 2) on or before October 6, 2010.

4On September 30, 2010, the respondent filed Requests for Order During Proceedings (“Requests”). The respondent requested that the Tribunal 1) permit it to have access and use of the applicant’s Occupational Health file as maintained by its Occupational Health office and 2.) grant an extension of the deadline to file its Response until such time as it is able to access and review the applicant’s Occupational Health file.

5On October 5, 2010, although the Tribunal did not issue a decision with respect to the specific requests, the Tribunal granted the respondent an extension until October 26, 2010 to file its Response.

6On October 5, 2010, the applicant’s union filed a Request to Intervene.

7On October 19, 2010, the respondent filed additional submissions with respect to its Requests and a further request that the Tribunal address the Requests on an expedited basis prior to the expiration of the October 26, 2010 deadline.

REQUEST TO INTERVENE

8In its Request to Intervene, the union indicates that it has been actively involved in assisting the applicant in seeking accommodation. As stated in Bettencourt v. Peel District School Board, 2010 HRTO 1644, a union almost always has an interest in a human rights application involving a member, and unless there are exceptional circumstances, the Tribunal will grant the bargaining agent intervenor status when requested. I am satisfied that the applicant’s union has an interest in the Application and, as such, the Request to Intervene is granted and the style of cause is amended accordingly.

REQUEST TO ACCESS OCCUPATIONAL HEALTH FILE

Respondent’s Position

9The respondent argues that all information related to the applicant’s medical restrictions and accommodation provided by the respondent are contained in the Occupational Health file and it is necessary for the respondent to review these materials in order to put forward a complete and meaningful defence. The respondent points out that, although the applicant’s consent was sought, the applicant refused to provide the respondent with full access to her Occupational Health file. The respondent submits that it is unable to file its Response until it has had the opportunity to access and review the Occupational Health file with its advisors and instructors, as well as the Occupational Health placement coordinators referenced in the Application. The respondent asks the Tribunal to authorize its access, use, and/or disclosure of the applicant’s Occupational Health file for the purposes of responding to the Application.

10The respondent notes that it seeks the Tribunal’s authorization out of abundance of caution given differences of opinion regarding this issue. The respondent points out that the expectations and protections under the Personal Health Information Protection Act, 2004 S.O 2004, c. 3, Sched. A (“PHIPA”), for health information custodians regarding disclosure may be different from the duty imposed on employers by the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”). The respondent also notes that some Tribunal jurisprudence has allowed health information custodians to use or disclose personal health information for the purpose of preparing a Response to an Application (see Basic v. Royal Health Care Centre, 2009 HRTO 1834 and Hunter v. North Halton Mental Health Clinic, 2010 HRTO 750).

APPLICANT’S POSITION

11The applicant takes the position that the materials should first be reviewed and vetted by her counsel to determine which documents are arguably relevant. The applicant has requested the respondent’s Human Resources department provide her with a copy of her Occupational Health file and the applicant agrees to produce arguably relevant portions of the file once it has been received and reviewed by her counsel.

12The applicant submits that the request for production is premature and that Tribunal jurisprudence has held that respondents should file full responses even when making preliminary objections or requests (see Glynn v. Lowe’s Companies Canada, 2009 HRTO 1180).

DECISION

13Given the applicant’s agreement to provide arguably relevant portions of the Occupational Health file and in the specific circumstances of this particular case, the Tribunal considers that it is in the interests of fairness and expeditiousness to grant the respondent’s request for an extension of time to file a Response after receipt of the materials from the applicant.

14The respondent is permitted for the purposes of responding to the Application to review the Occupational Health information only with its advisors, instructors, and the Occupational Health placement coordinators referenced in the Application.

15The respondent is directed to file its Response within 30 days after receipt of the arguably relevant portions of the Occupational Health file as undertaken to be provided by the applicant. The applicant is directed to deliver copies of the arguably relevant documentation to the respondent within 21 days of receipt of the Occupational Health file and to send written confirmation to the Tribunal that this production has been made.

16I am not seized of this matter.