Iley v. Sault Ste. Marie Community Information and Career Centre, 2010 HRTO 880

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tom Iley Applicant

-and-

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

INTERIM DECISION

Adjudicator: Mark Hart Date: April 22, 2010 Citation: 2010 HRTO 880 Indexed as: Iley v. Sault Ste. Marie Community Information and Career Centre

1This is an Application made under s. 53(5) of the Ontario Human Rights 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 is scheduled to commence in Sault Ste. Marie on May 11, 2010.

4The purpose of this Interim Decision is to address the respondents’ Request for Order seeking production of certain information and documents from the applicant. While this Request is dated March 3, 2010, it did not appear to have been properly served on the applicant. As a result, the Tribunal sent a letter to the parties dated March 29, 2010 raising the issue of service and forwarding a copy of the respondents’ Request to the applicant, and requesting a Response to be filed by the applicant by April 12, 2010.

5On April 8, 2010, the applicant provided materials in partial response to the respondents’ request. In these materials, the applicant also disclosed a report dated April 1, 2010 from his current neurologist, Dr. Mathew, stating that the applicant “could have been accommodated in the workplace with appropriate equipment and a lower workload, allowing him to continue to work at a slower pace”.

6On April 15, 2010, respondents’ counsel wrote to the Tribunal expressing concern that the applicant had not fully complied with the requested production, and raising a further concern about the recent letter from Dr. Mathew. The respondents take the position that this letter sets out new and different information about the applicant that they had never received before, and that they require an adjournment of the May 11, 2010 hearing date in order to obtain an independent medical assessment and a functional abilities evaluation. In this decision, I will also address the issues raised by the disclosure of Dr. Mathew’s letter and the respondents’ request for an adjournment.

7The respondents first request is for “a complete list of all physicians and other healthcare professional and facilities that have provided [the applicant] with any diagnosis, treatment or other services since January 1, 2006”. In my view, this request is overbroad, as it is not restricted to the medical issue for which workplace accommodation was sought or which forms the basis for the applicant’s disability leave. Accordingly, this request is denied.

8The respondents’ next request is for “a complete copy of all clinical notes, charts and records of all of the above-noted physicians and healthcare professionals”. Once again, this request is overbroad. However, the applicant has disclosed certain letters and reports from at least three doctors who were involved in diagnosing and treating his Parkinson’s disease: Dr. Wacker, the applicant’s family physician; Dr. Bruni, the first neurologist seen by the applicant; and Dr. Mathew, who is the neurologist who has seen the applicant since June 2008. While certain letters and reports from these doctors have been provided, I find that the respondents are entitled to disclosure of the underlying clinical notes, charts and records maintained by these doctors, at least for the relevant period, as these documents are arguably relevant to the matters at issue in this proceeding. In my view, the relevant period of time dates from when the applicant first was diagnosed with Parkinson’s disease in March 2007. Accordingly, I order the applicant to obtain from these doctors and disclose to the respondents and file with the Tribunal a copy of all clinical notes, charts and records for Dr. Wacker, Dr. Bruni and Dr. Mathew for the period from and after March 2007. The respondents have indicated that they will honour the reasonable costs charged by these doctors for production of these documents upon submission of invoices by the applicant.

9The respondents also request “all forms, correspondence and records related to [the applicant’s] Canada Pension Plan disability application and outcome”. In response, the applicant has provided a copy of the application that he filed with CPP and a copy of the doctor’s report filed as part of his application. The applicant has not, however, provided correspondence received from CPP regarding the approval of his claim and the effective date of total disability or regarding the amount of benefits he has received. Further, the applicant has not disclosed any further materials that may have been submitted to CPP by the applicant or his doctors, or any further correspondence that may have been received from CPP regarding the ongoing status of his entitlement to CPP disability benefits. In this regard, I note that in Dr. Mathew’s April 1, 2010 letter it is stated that the applicant is employed as a cab driver. This, of course, raises the issue as to whether the applicant’s current employment has resulted in any change to his CPP entitlement. I find that all of these documents are arguably relevant to the matters at issue in this proceeding, and order that they be produced to the respondents and filed with the Tribunal.

10The respondents request production of “any other documents or records upon which [the applicant intends] to rely in support of [his] complaint to the Human Rights Tribunal”. Pursuant to the Tribunal’s letter dated January 29, 2010, the parties were required to file with the Tribunal all documents that they intend to rely upon at the hearing by no later than April 21, 2010. As this deadline has now passed, the applicant should already have disclosed and filed all such documents in accordance with the Tribunal’s Rules and there is no necessity for an order in this regard.

11The respondents also request “the identity of any witnesses other than [the applicant] and a detailed summary of the facts or opinions that they are expected to state in their evidence at the hearing”. Once again, pursuant to the Tribunal’s Rules, the applicant was required to advise as to his witnesses and to provide a brief statement of their anticipated evidence by April 21, 2010. While the applicant has filed a letter from Dr. Mathew, it is not clear whether he intends to call this individual as a witness at the hearing. If the applicant does intend to call Dr. Mathew as a witness at the hearing, he shall so confirm with the respondents and the Tribunal by no later than April 29, 2010.

12Some of the material that I have ordered to be produced and filed, namely the material relating to the applicant’s CPP application, should already be in the applicant’s possession and should be capable of being disclosed and filed by April 29, 2010 and I so order. With regard to the clinical notes, records and charts of Dr. Wacker, Dr. Bruni and Dr. Mathew, the applicant shall use his best efforts to obtain and disclose and file these materials as soon as possible, and in any event by no later than May 6, 2010.

13This leaves me with the issue of the respondents’ request for an adjournment of the May 11, 2010 hearing date. In my view, an adjournment of this hearing date is not warranted in the circumstances. It is highly unlikely that this hearing will be completed in one day, given the nature of the issues raised. At a minimum, the Tribunal should be able to hear the applicant’s evidence in support of the Application and respondents’ counsel should be able to conduct cross-examination of the applicant. The Tribunal also may be able to hear evidence from the respondents’ non-expert witnesses. What witnesses the Tribunal decides to hear from is a matter best left for the adjudicator who will be conducting the hearing on May 11, 2010.

14If the respondents do retain an expert witness to counter Dr. Mathew’s recent opinion, and if there are further questions to be directed to the applicant in cross-examination arising out of any such expert’s opinion or this expert’s review of the medical records disclosed by the applicant, then cross-examination of the applicant on such matters could continue on the next hearing day. Further, the next hearing day can be scheduled so as to permit the respondents sufficient opportunity to retain and receive a report from any such expert witness. If the respondents are seeking an opportunity to have their expert examine the applicant for the purpose of conducting an independent medical assessment and functional abilities evaluation, then this issue can be raised before the Tribunal at the May 11, 2010 hearing.

The May 11, 2010 hearing day also can be used to address any outstanding case management issues. As a result, the respondents’ request for an adjournment is denied.