Helen Bryer v. City of Toronto, Arthur Doug Eley, Carol Adams and Loreta Pavlou, 2010 HRTO 2389

Human Rights Tribunal of Ontario

Between:

Helen Bryer

Applicant

-and-

City of Toronto, Arthur Doug Eley, Carol Adams and Loreta Pavlou

Respondents

Interim Decision

Adjudicator: Sheri D. Price Date: December 1, 2010 Citation: 2010 HRTO 2389 Indexed as: Bryer v. (City) Toronto

1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) alleging discrimination in respect of employment on the basis of disability, sexual orientation, family status, and marital status.

2The respondents have not yet filed a Response to the Application. Rather, the respondents have filed a Request for an Order during Proceedings (“the Request”) seeking to have certain documents produced prior to the filing of a Response; an extension of the time for the filing of a Response; and the removal of the personal respondents as parties to the Application.

3The applicant did not respond to the respondents’ Request.

Production of Documents before Response Filed

4The applicant in this case alleges that the respondents discriminated against her after she returned to work with the respondent employer, City of Toronto (“the employer”) in August 2009 following a two-year leave related to the applicant’s mental disabilities, including by “forcing the applicant back on LTD (long-term disability)” in or around October 2009.

5The respondents submit that the employer has an Employee Health and Rehabilitation Unit (“EHR Unit”) which deals with issues relating to both the physical and mental health of employees and that a health consultant with that Unit interacted with the applicant on behalf of the employer after the applicant’s return to work in August 2009. The respondents submit that the health consultant expressed concern about the applicant’s ability to work at that time, which led to the employer placing the applicant on a leave of absence and to conversations with the employer’s disability insurer, Manulife (“Manulife”) regarding the applicant’s eligibility for long-term disability benefits.

6The respondents submit that they need access to records kept by the employer’s EHR Unit in respect of the applicant in order to respond fully to the allegations in the Application. Such records include the health consultant’s correspondence and notes regarding the applicant as well as medical records received by the employer with respect to the applicant.

7Although the EHR Unit is actually part of the respondent employer’s organization, because the Unit’s records contain medical information, the records are kept confidential, including from the employer’s managers and legal counsel, and can only be disclosed with consent of the applicant or as ordered or otherwise by law. The respondents request that the Tribunal order that the applicant’s Employee Health and Rehabilitation Unit file be produced in order that they may prepare and file their Response to the Application.

8The respondents also seek production of Manulife’s file which contains information related to the insurer’s initial decision to deny and to later grant the applicant’s application for long-term disability benefits. The respondents submit that Manulife’s file, like the EHR Unit’s file, contains information related to the applicant’s mental state after her return to work in August 2009, and is therefore relevant to a key issue in the case and ought to be produced.

9The documents relate to the applicant’s ability and fitness to work after August 2009 and are therefore arguably relevant to the issues in the Application.

10Rule 16 of the Tribunal’s Rules of Procedure contemplates that parties to an Application will not be required to exchange arguably relevant documents until 21 days after the Notice of Hearing is sent out by the Tribunal, which in the normal course is after the Application, Response and any Reply have been filed.

11Absent exceptional circumstances, the Tribunal will not permit a request for particulars or production of documents to delay the filing of a complete response: Glynn v. Lowe’s Companies Canada, 2009 HRTO 1180 at para 8.

12However, the Tribunal has also recognized – at least implicitly - that it may be appropriate to order an applicant to produce documents or to provide particulars at an early stage in order to ensure that the respondents are in a position to meaningfully respond to the Application, Ugolini v. Salvation Army Barrie, 2009 HRTO 1801; Juani v. Mississauga (City), 2010 HRTO 1298; Bose v. Ontario Reality Corporation, 2010 HRTO 1437 and Glynn, supra.

13In the circumstances of this case, I am persuaded that it is appropriate to order the applicant to produce the documents in her EHR Unit file to the respondents before they file their Response(s) to the Application.

14The employer has established a special unit to interact with its employees in respect of disability issues in order to ensure that employees’ medical information will be kept confidential. The fact that the employer has established a system which protects its employees’ privacy does not change the fact that the EHR Unit is part of the respondent employer’s own operations and that documents in the EHR Unit’s files are the employer’s own records regarding the applicant and its interactions with her.

15In my view, the respondents will not be in a position to meaningfully respond to all of the allegations in the Application without access to the EHR Unit’s records regarding how it treated the applicant and why it acted as it did. It is therefore appropriate to order production of arguably relevant documents in the EHR file before requiring the respondents to file their Response(s).

16By contrast, I am not persuaded that the respondents would be prevented from meaningfully responding to the allegations in the Application if Manulife’s file regarding the applicant’s eligibility for disability benefits is not produced to them before they are required to file their Response(s) to the Application.

17At issue in this case is whether the respondents discriminated against the applicant following her August 2009 return to work and by putting her off work in or around October 2009. As noted above, the EHR Unit is part of the respondent employer’s operations. It dealt directly with the applicant in respect of her ongoing employment and allegedly advised management on steps to be taken in respect of the applicant, based on confidential medical information to which it was privy. There is no allegation that Manulife played a similar role in the respondent employer’s treatment of the applicant.

18Although documents in the Manulife file may well be subject to production in accordance with Rule 16, I am not persuaded that the respondents require the Manulife file in order to meaningfully respond to the applicant’s allegations. The respondents’ Request for production of the Manulife file before filing their Response(s) to the Application is denied accordingly.

19In accordance with the above, I direct the applicant to produce the documents in her EHR file which are arguably relevant to the issues in the Application to each of the respondents within 17 days of the date of this Interim Decision.

Extension of Time

20The respondents request that they be granted an extension of time for the filing of their Response until 35 days from the date on which they receive production of the documents sought. They submit that this would be an appropriate amount of time to review the files, interview the witnesses and file their complete Response(s) to the Application.

21Having determined that it is appropriate to require the applicant to produce the arguably relevant documents in her EHR file to the respondents so that they can meaningfully respond to the Application, it is also appropriate to grant the respondents sufficient time to review the documents before filing their Response(s).

22In the ordinary course, respondents have 35 days from the date of receipt of the Application to submit their Responses.

23In the circumstances of this case, I find it appropriate to direct the respondents to file their Response(s) to the Application within 21 days of receiving production of the documents in question. This ought to be sufficient for the respondents to review the documents and to file their Responses to the Application, particularly since the respondents have had the Application for some time already and a corresponding opportunity to at least partially investigate the allegations in the Application.

24The parties’ attention is drawn to Rule 1.10 of the Tribunal’s Rules of Procedure which states that “when the time for doing an act expires on a holiday, the act may be done on the next day that is not a holiday.”

Removal of Personal Respondents

25Although the respondents are correct that the unnecessary naming of personal respondents is discouraged by the Tribunal, I am not prepared to address the respondents’ request that the personal respondents be removed as parties to the Application at this early stage, when no Response or Reply has been filed, and the nature of the personal respondents’ involvement in the events in question is less than fully clear.

26This of course is without prejudice to the respondents’ right to pursue their Request that the personal respondents be removed as parties to the Application, after their Responses and the applicant’s Reply, if any, have been filed.

27I am not seized of this matter.