Rozana Baber v. York District School Board, 2010 HRTO 538

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rozana Baber

Applicant

-and-

York District School Board

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: March 12, 2010

Citation: 2010 HRTO 538

Indexed as: Baber v. York District School Board

1This is an Application under s. 34 of the Ontario Human Rights Code, R.S.O. c.H.19, as amended (the “Code”), alleging discrimination in respect of employment on the basis of disability. The hearing in this matter commenced in January 2010 and is scheduled to reconvene in late March 2010.

2On February 23, 2010, a conference call was held to address the respondent’s request that it be provided with certain medical documents contained in the file of its disability manager and the respondent’s objection to the admissibility of some of the applicant’s medical reports in the absence of the doctors being made available for cross-examination.

3This Interim Decision reflects the rulings I made on these issues during the call and the reasons for them.

PAULA RAYNER FILE

4The respondent seeks production of certain of the applicant’s medical documents contained in the file of Paula Rayner. Ms Rayner is responsible for disability management issues on behalf of the respondent and will be called as a witness at the hearing.

5Although she works on behalf of the respondent, Ms Rayner, for reasons of confidentiality, is not permitted to release the applicant’s medical records in the absence of the applicant’s express consent or, the respondent submits, an order from the Tribunal compelling Ms Rayner to release them.

6After the last day of hearing in this matter, in late January 2010, the applicant consented to counsel for the respondent reviewing the documents in Ms Rayner’s file, which he did. However, the applicant did not consent to the respondent taking copies of the documents, so he did not.

7During the conference call, the respondent requested that I order the applicant to consent to having Ms Rayner release copies of the relevant documents to the respondent. The respondent seeks those documents in Ms Rayner’s file which date from 2006 onwards.

8The documents in Ms Rayner’s file are arguably relevant to the issues in the Application, since they relate to the applicant’s medical condition during the time frame in which she is alleging that the respondent failed to accommodate her on the basis of disability. The applicant did not dispute the arguable relevance of the documents. The documents in Ms Rayner’s file also appear to be in the applicant’s control, if not in her direct possession.

9Accordingly, during the conference call, I directed the applicant to obtain copies of the documents in Ms Rayner’s file and to produce arguably relevant documents from the file to the respondent before the hearing reconvenes. It was not necessary to order the applicant to consent to Ms Rayner providing copies of the documents to the employer directly and I therefore declined to do so.

10Upon receipt of the documents from Ms Rayner, the applicant is to review them and to provide to the respondent those documents which are arguably relevant and which relate to the period commencing in 2006. The applicant should send the documents to counsel for the respondent as soon as possible, if she has not already done so, so that the respondent has the documents well in advance of the next hearing date.

11If there are any documents in Ms Rayner’s file which the applicant objects to producing, she should communicate this as soon as possible to the respondent and the Tribunal so that any outstanding documentary production issues may be addressed before the hearing resumes.

RESPONDENT’S OBJECTION TO THE ADMISSIBILITY OF MEDICAL DOCUMENTS IN THE ABSENCE OF THE DOCTORS BEING CALLED AS WITNESSES

12At the hearing of this matter, the applicant sought to enter a number of medical documents into evidence in which her doctors suggest that the respondent ought to place the applicant in specific job duties as a teacher/librarian or a combination of teacher/librarian and ESL teacher, due to her disability. Other medical notes submitted did not refer to that specific job assignment but also purported to address the applicant’s needs in the workplace. The applicant indicated that she did not intend to make the doctors who wrote such reports available for cross-examination, but nonetheless wished to submit the medical reports as evidence that she required accommodation in a specific job.

13During the conference call, the respondent indicated that it objected to the admissibility of the medical notes which were marked at the hearing for identification purposes as exhibits 4, 5, 11, 12, 14, and 18 unless Drs. Grant and Birbrager, who between them wrote the notes, were made available for cross-examination. The applicant indicated that she may seek to introduce a report by Dr. Rudky, which report also addresses the placement of the applicant in the specific job assignment noted above. The respondent indicated that, in that case, it would similarly object to the admissibility of Dr. Rudky’s report, unless she is made available for cross-examination.

14I heard and determined the respondent’s objection during the conference call on February 23, 2010.

The respondent’s position

15The respondent submits that where the medical reports are in any way “subjective and consequential”, the Tribunal ought not to rely on such evidence without according the respondent its right to test the evidence by way of cross-examination.

16The respondent submits that it has a right to cross-examine the applicant’s doctors about the basis for the conclusions reached in their various reports, including why they concluded that a specific job assignment was the only suitable accommodation for the applicant at the time in question and the extent to which the doctors considered other options. The respondent wishes to cross-examine the doctors with respect to whether they were advocating on behalf of the applicant when they wrote their notes or whether they were merely providing objective medical information. The respondent also wishes to probe the extent to which the opinions expressed within the reports are within the doctors’ medical purview.

17The respondent relied upon the following labour arbitration awards for the proposition that medical reports should not be admitted into evidence unless the author of such reports is made available for cross-examination: Abitibi Consolidated Inc. and International Association of Machinists and Aerospace Workers, Local 269 (2002), 2002 CanLII 78993 (ON LA), 103 L.A.C. (4th) 160; Toronto District School Board and Canadian Union of Public Employees, Local 4400 (2007), 161 L.A.C. (4th) 374; and Canada Building Materials Teamsters Union, Local 230 (1997), 1997 CanLII 25114 (ON LA), 62 L.A.C. (4th) 205.

The applicant’s position

18The applicant submits that her medical documents should be admitted into evidence for the truth of their contents in the absence of her doctors being made available for cross-examination. She submits that it would be totally inappropriate to require her doctors to testify because the respondent accommodated her in the position in question in the past. The applicant also submits that her doctors are unavailable to testify and she does not wish to summons them to appear as witnesses. She submits her doctors are very important to her and she does not wish to lose them by putting pressure on them because of the respondent. However, the applicant conceded that neither Dr. Grant nor Dr. Birbrager is her current doctor.

Decision

19A central issue in this case is whether the respondent breached its duty under the Code to accommodate the applicant on the basis of disability by not assigning her to duties as a teacher-librarian and ESL teacher. In support of the claim that she required accommodation in such a position, the applicant relies on the medical reports noted above.

20The contents of the doctors’ reports are very much in dispute and relate to a central issue in the Application. Natural justice requires that the respondent be given the opportunity to test the reliability and veracity of the applicant’s evidence by cross-examination. To permit the applicant to rely on the medical reports in question without making her doctors available for cross-examination would be unfair to the respondent because it would restrict and prejudice the respondent’s ability to test the case against it.

21Accordingly, I ruled during the conference call that I would give no weight to those portions of the medical reports regarding accommodation of the applicant unless the doctors who wrote the reports were made available for cross-examination.

22On the other hand, I was not prepared to exclude the medical reports from evidence altogether. When an applicant comes before the Tribunal alleging that the respondent breached its duty to accommodate her under the Code, she must establish that she asked the respondent for accommodation or otherwise triggered the procedural and substantive aspects of the duty to accommodate. If nothing else, the medical reports, which were submitted to the respondent at various points by or on behalf of the applicant, are relevant evidence on this issue. Accordingly, they are properly admitted into evidence for that purpose, even though I will give no weight to those portions of the reports regarding what, if any, accommodation was required by the applicant, unless she makes the doctors who wrote the reports available for cross-examination.

REQUEST TO HAVE WITNESSES TESTIFY BY TELEPHONE

Paula Rayner

23During the conference call, the respondent indicated that one of its witnesses, Ms Rayner, will be out of town on the days the hearing is scheduled to reconvene. The respondent asked that Ms Rayner be permitted to give her evidence by telephone. The applicant consented. In light of the nature of the evidence to be given and the parties’ consent, I granted the request that Ms Rayner be permitted to give her evidence in this matter by telephone.

24The respondent should ensure that Ms Rayner has the necessary documents with her so that she is able to provide her full evidence in this matter when she testifies by telephone.

Applicant’s doctors

25During the call, the applicant asked whether her doctors would be permitted to testify by telephone at the hearing of this matter if she decides to call them as witnesses or to make them available for cross-examination on their various medical reports. The respondent consented to having the applicant’s doctors testify by telephone. In light of the nature of the evidence to be given and the parties’ consent, I directed that the applicant’s doctors would be permitted to give evidence by telephone if the applicant decides to call them as witnesses or make them available for cross-examination.