HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Cindy Graham
Applicant
-and-
Children’s Hospital of Eastern Ontario
Respondent
-and-
Ontario Federation of Health Care Workers
Intervenor
INTERIM DECISION
Adjudicator: Jay Sengupta
Indexed as: Graham v. Children’s Hospital of Eastern Ontario
1This is an Application filed on October 25, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The Application alleges discrimination in employment on the basis of disability; specifically, the applicant alleges that the respondent employer denied her necessary accommodations in the workplace despite being made aware of a disability, and that she was disciplined and ultimately terminated because of absences related to her disability. No response has yet been filed by the respondent.
2This Interim Decision deals with two preliminary matters: a request by the Ontario Federation of Health Care Workers (the “union”) to intervene, and a request for disclosure of the file maintained by the Occupational Health and Safety Department (the “OHS department”) of the respondent hospital for the applicant in order that it can file its Response.
Union’s Request to Intervene
3The union is the certified bargaining agent for the applicant’s workplace. The Request to Intervene was delivered to the applicant as well as the respondent. It takes the position that it has an interest in the outcome of the litigation. The respondent has indicated it takes no position on the intervention request. The applicant has not responded and her deadline for doing so has now passed.
4In the circumstances, I am satisfied that the union should be granted intervenor status.
Request for Disclosure of Records
5The respondent hospital has submitted a Request for Order during Proceedings. It submits that a department within the hospital, the OHS department, has primary responsibility for accepting requests for accommodation, receiving relevant medical information, assessing limitations, and co-ordinating the search for accommodations for employees of the hospital. The OHS department and the medical staff within it are required, as a result of professional rules of conduct, as well as the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Schedule A (“PHIPA”), to maintain the confidentiality of the information provided to them.
6The respondent hospital asserts that OHS has not disclosed its files relating to the applicant to anyone in management, the labour relations department, or legal counsel.
7The respondent hospital takes the position that in order to respond to an allegation that it did not accommodate the applicant’s disability, it needs to have access to the OHS files pertaining to Ms. Graham.
8The respondent hospital sent a letter to the applicant on November 24, 2010 seeking her consent. There has been no response from the applicant. However, the applicant has responded to this Request for Order and takes the position that there is no basis for granting the Request, that the lawyers for the hospital have enough information, and that her “medical information should remain personal and confidential”.
9The respondent hospital, for its part, points out that the information it seeks is arguably relevant to the applicant’s contention that she sought and was entitled to accommodation of a disability, that the respondent failed in its duty to accommodate her. and to the respondent’s position that no accommodation was requested or required for the absenteeism that eventually led to the applicant’s dismissal.
10Consent is generally required pursuant to s. 29(a) of PHIPA. However, s. 29(b) also authorizes disclosure where “permitted or required by this Act”. In this regard, pursuant to s. 41(1)(d) of PHIPA, disclosure of personal health information is permitted under that Act for the purpose of complying with an order to compel production or with a procedural rule that relates to production of information in a proceeding. Section 41(1)(d) of PHIPA provides as follows:
41(1) A health information custodian may disclose personal health information about an individual,
(d) for the purpose of complying with,
(i) a summons, order or similar requirement issued in a proceeding by a person having jurisdiction to compel the production of information, or
(ii) a procedural rule that relates to the production of information in a proceeding.
11In this case, as a Vice-chair of this Tribunal with authority to do so, I am being asked for an order requiring disclosure and production of the records relating to the applicant held by the OHS department of the respondent hospital. As a result, disclosure of these records is authorized and permitted under sections 29(b) and 41(1)(d)(i) of PHIPA without any requirement to first obtain the consent of the patient: in this case, the applicant.
12Under the Tribunal’s process, the parties’ obligation to disclose arguably relevant documents does not arise until 21 days after a Notice of Confirmation of Hearing is issued. Absent special circumstances, the Tribunal will generally not make production orders in the early stages of the process.
13Given the special circumstances in this case, the fair, just and expeditious resolution of this Application warrants making an order for disclosure at an early stage. The argument the respondent is advancing is that this information would ultimately have to be disclosed by the applicant pursuant to Rule 16 of the Tribunal’s Rules of Procedure and that it is unable to prepare a proper Response without access to the OHS file because of its obligations under the PHIPA.
14If it is required to wait for the Rule 16 disclosure, the respondent argues it would then have to seek to amend its pleadings late in the process, thereby delaying the matter further. It is also not clear that the parties would have a useful mediation experience, should both parties opt to engage in mediation, without knowing the case more fully.
15The respondent hospital seeks an order for disclosure of the full OHS file to the hospital’s legal counsel and an order permitting the hospital’s legal counsel to further disclose the information on a “need to know” basis for the purpose of preparing the Response and participating in mediation and the hearing into this Application.
16The applicant was employed by the hospital for 17 years. The problems she identifies in her Application relate only to the period between February 2006 and her termination in September 2010. There are no allegations of discrimination relating to the first 13 years of employment and the order sought is overly broad.
17In my view, February, 2006 through to September 2010 is the relevant time frame for which disclosure of the contents of the OHS file is required in order to permit the respondent to file a complete Response. The materials will be made available to hospital counsel within a week of the date of this Interim Decision and through him or her to others on a need to know basis for the purposes of preparing a Response and participating in mediation and the hearing process.
18The respondent will have a further week after counsel receives the material to file its Response to the Application. The applicant will then have an opportunity to file a Reply in accordance with the Rules.
Order
19The Ontario Federation of Health Care Workers is added to this Application as an intervenor. The Registrar will provide the union with copies of the materials filed by the parties to date. The parties are instructed to copy the union with any subsequent materials in this matter.
20The extent of the union’s participation in the hearing will be determined by the presiding Vice-chair or Member.
21The contents of the applicant’s OHS file for the period encompassing February 2006 through to September 2010 will be made available to the respondent hospital’s counsel within one week of the date of this Interim Decision, and counsel may disclose contents of the file on a need to know basis for the purpose of preparing a Response to this Application and to participate in mediation and the hearing of this Application.
22The respondent is directed to file a Response within two weeks of the date of this Interim Decision and the applicant may file a Response in accordance with the Rules.
23I am not seized of this matter.
Dated at Toronto this 30th day of December, 2010.
”signed by”__________
Jay Sengupta
Vice-chair