Hatton v. Ontario Lottery and Gaming Corporation, 2011 HRTO 1097

Human Rights Tribunal of Ontario

B E T W E E N:

Meredith Hatton

Applicant

-and-

Ontario Lottery and Gaming Corporation

Respondents

INTERIM DECISION

Adjudicator: Alison Renton

Date: June 7, 2011

Citation: 2011 HRTO 1097

Indexed as: Hatton v. Ontario Lottery and Gaming Corporation

1The hearing in this matter is scheduled for June 28 and 29, 2011. In the Application, the applicant alleges discrimination on the basis of disability and marital status. There are several outstanding Requests for Order During Proceedings (RFOP) that have been filed by both parties and which need to be addressed before the hearing commences.

Applicant’s August 11, 2009 RFOP

2The applicant filed a RFOP dated August 11, 2009 in which she seeks to amend her Application. Specifically, she requests that the respondent discontinue from disclosing private and confidential information about her employment to unauthorized persons and seeks to add to her Application an allegation that the respondent disclosed private information to another person. She filed her RFOP before the respondent filed its Response.

3The respondent filed a Response to the RFOP. Although it denies the new allegation, it does not object to the applicant seeking to her amend her Application. It also notes that the Tribunal does not have the jurisdiction to award the remedy that the applicant seeks.

4The Tribunal will permit the applicant to amend her Application based upon the information in the RFOP. The Tribunal will leave the issue of the requested remedy to be addressed by the parties during the hearing and during their final submissions.

Applicant’s April 6, 2010 RFOP

5The applicant filed a RFOP dated April 6, 2010 in which she seeks to amend her Application by relying upon new allegations and to remove Medisys as a respondent. She also seeks a copy of “all employees who worked at OLG Slots at Woodbine who went on a leave of absence for health reasons and their continous [sic] service dates” and a copy of the respondent’s leave of absence policy.

6The new allegations pertain to the alleged failure of the respondent to continue the applicant’s employee benefits and pension plan benefits from October 1, 2009 to January 31, 2010 and its alleged failure to fairly apply its leave of absence policy pertaining to sickness. The applicant alleges that Sandra Paiva told her that the benefits for some employees were maintained while they were on an unpaid leave of absence. The applicant also seeks to add an allegation relating to a medical note she was required to produce before returning to work in January 2010.

7In the applicant’s index of her documents for hearing which she provided to the Tribunal in December 2010 (which on its face does not appear to have been sent to the respondent) (“the December 2010 documents”), the applicant requests that the respondent produce:

A list of all employees at OLG Slots at Woodbine who have had leave of absences of 30 days or greater from 2000 to present. The list must have the time they started their leave and when they returned from leave as if their continuous service dates where [sic] reduced as well as if benefits were maintained. The names can be blanked out for privacy.

8The respondent did not file a Response to the RFOP and the time for doing so has now elapsed. The respondent has, however, produced documents to the applicant and the Tribunal in anticipation of the June hearing dates.

9The Tribunal will permit the applicant to amend her Application by including the new allegations as set out in her April 2010 RFOP. Medisys is not removed as a respondent because it was never named as a respondent. It appears to the Tribunal that the respondent has produced various policies pertaining to leaves of absence and benefit entitlements, including one at tab 23 of its materials and accordingly the Tribunal will not order production of such policies.

10The Tribunal finds that the applicant’s request in the RFOP for the respondent to produce “a copy of all employees who went on a leave of absence for health reasons and their continuous service dates” to be relevant, although too broadly worded. Similarly, the Tribunal finds that the applicant’s request on her December 2010 material to the Tribunal for production of all employees from 2000 onwards, and on which the respondent was not copied, to be too broad. The issues in the applicant’s Application appear to be related solely to an absence for medical reasons that commenced in March 2009 until her return to work in January 2010, and an unpaid absence from October 2009 until January 2010.

11Accordingly, the Tribunal orders the respondent to produce to the applicant a list of employees who were on an unpaid leave of absence of medical reasons and whose service date was not adjusted for the time period January 2009 to January 2010. As the applicant has indicated that the names could be blank, the Tribunal does not order the respondent to identify the names of such employees.

Respondent’s May 3, 2011 RFOP

12The respondent filed a RFOP dated May 3, 2011 seeking production of: the applicant’s medical records and documentation pertaining to her Application; copies of all documentation including medical documentation as well as correspondence which the applicant provided to Medisys in support of her leave of absence and for verification of her disability; and the applicant’s consent to waive confidentiality of all documents in the possession of Medisys, requiring Medisys to release all documents in its possession relating to the Application for the period March 23, 2009 to October 26, 2009 and permitting Medisys and its employees to speak about and testify regarding confidential medical information contained in its file concerning the applicant. The respondent had previously sent a consent form to the applicant for her signature.

13The respondent submits that Medisys was its third-party disability management company which was used to administer the respondent’s disability management program (DMP) in which the applicant was enrolled. In keeping with the confidentiality surrounding all medical documentation and information collected by Medisys for the purposes of administering the DMP, Medisys did not and cannot release such information to the respondent or otherwise without the applicant’s consent, or an order from the Tribunal or another judicial body. The respondent claims that as a result it has never had access to the totality of the medical documentation and records upon which the applicant based her requests for leaves of absence from work. The applicant has not subsequently provided copies of this medical documentation to the respondent; when she produced her productions as required by the Tribunal’s Rules of Procedure, she asserted privileged “due to confidential medical information” over a number of medical documents

14The applicant did not file a Response to the RFOP and the time for doing so has elapsed.

15In her December 2010 documents, the applicant provided an index of 35 documents, which included a number of medical documents, and produced copies of all those documents. Attached to the respondent’s RFOP was essentially the same list that the respondent says was provided to it by the applicant. However, on the respondent’s list, the applicant wrote “privilege[d] due to confidential medical information” beside a number of the listed documents and did not provide those to the respondent.

16The test for disclosure of documentation is arguable relevance, which is not a particularly high threshold (see Lampi v. Princess House Products Canada Inc. 2008 HRTO 1 at para. 8). In the Application, the applicant states “…I have continuously provided detailed medical reports stating that I am unable to return [to] work and OLG continues to not [accept] this documentation” and based upon this she alleges the respondent discriminated against her on the basis of disability. Further, in the December 2010 documents, the applicant provided a list of the same documents that she provided to the respondent. However, whereas she wrote “privilege[d] due to confidential medical information” beside most of the medical documentation listed on the respondent’s copy she did not do this on the Tribunal’s copy and she provided a copy of such medical documentation to the Tribunal.

17In my opinion, the medical documentation that was provided to Medisys is relevant because of the allegations contained in the Application. Accordingly, the applicant is required to produce immediately to the respondent and the Tribunal:

a) copies of all medical documents, including but not limited to, all medical notes, medical letters, medical reports, functional abilities forms, and/or disability-related documents in her possession or control which relate to her Application.

b) Copies of all documentation, including medical documentation as noted above, as well as all correspondence, including letters, e-mails, and notes in her possession or control which she provided to Medisys for the purposes of verifying her alleged disability and substantiating her need to be absent from work.

18I accept the respondent’s position that Medisys, as a third-party disability management company, is restricted from releasing medical documentation and information to the respondent, (see Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A.), and because of the nature of the allegations in the Application, that documentation and information is relevant to this proceeding.

19The applicant shall be given two business days from the date of this Interim Decision to advise the respondent and the Tribunal by email whether she now consents to Medisys releasing these documents for the period March 23, 2009 to October 26, 2009 and permitting Medisys and its employee to speak about and testify regarding confidential medical information contained in its file concerning the applicant. If she consents, she can sign the consent form that was appended to the respondent’s RFOP found at Tab 1.

20If the applicant does not consent or does not respond within this time period, then the respondent should send a copy of this Interim Decision and its RFOP to Medisys and the Tribunal will schedule a conference call with the parties and Medisys and hear submissions about the Tribunal ordering Medisys to provide the documentation and information requested by the respondent.

Applicant’s Witness Statements

21Rule 17 requires the parties to deliver a witness list and a brief statement summarizing each witness’ expected evidence to the other party and file it with the Tribunal not later than 45 days prior to the first scheduled hearing date. The respondent has filed its witness statements, but the applicant has not.

22The applicant is directed to immediately deliver its witness information to the respondent and the Tribunal. The Tribunal draws the applicant’s attention to Rule 17.4 of the Tribunal’s Rules about the consequences of failing to comply with Rule 17.

Filing and Delivery

23In view of the possibility of regular mail delivery being disrupted by a postal strike, the Tribunal will deliver this Interim Decision to the parties by e-mail, fax or courier. The parties’ attention is directed to the fact that materials may be filed with the Tribunal and delivered to the other party by e-mail, fax, courier, or hand delivery.