Power v. Toronto Transit Commission, 2011 HRTO 1462

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Randolf G. Power

Applicant

-and-

Toronto Transit Commission

Respondent

INTERIM DECISION

Adjudicator: Alan G. Smith

Date: August 3, 2011

Citation: 2011 HRTO 1462

Indexed as: Power v. Toronto Transit Commission

WRITTEN SUBMISSIONS BY:

Toronto Transit Commission, ) Lucy Siraco, Counsel

Respondent )

INTRODUCTION

1This is an Application filed April 29, 2011, alleging discrimination in employment on the basis of disability, contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”).

2The respondent employer has yet to file a Response, stating that before it can do so, it must have access to personal health information contained in the applicant’s Occupational Health and Claims Management file (“health file”) and Workers Safety and Insurance Board (“WSIB) files. To that end, the respondent filed a Request for an Order during Proceedings (“the Request”) on July 11, 2011, seeking an order from the Tribunal to “access, use and/or disclose the Applicant’s personal health information” contained in his health and WSIB files “for the purpose of responding to and defending the Application.”

3The applicant has not responded to the Request.

4This Interim Decision addresses the respondent’s Request for access to the applicant’s health and WSIB files.

PRODUCTION OF DOCUMENTS BEFORE RESPONSE FILED

5The applicant, who is a transit special constable, alleges that the respondent discriminated against him when it failed to accommodate his disability.

6The respondent submits that it needs access to the applicant’s medical files kept by the Occupational Health and Claims Management Section, which is part of the respondent’s Human Resources Department. This medical file is deemed to be personal health information. Pursuant to the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A, access to the medical files may not be permissible unless the applicant gives his consent or a Court or Tribunal orders it.

7Rule 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.

8Absent 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. However, the Tribunal has also recognized in a similar situation that it is sometimes appropriate to order access to an internal medical file at an early stage in order to ensure that the respondents are in a position to meaningfully respond to the Application, see Bryer v. (City) Toronto, 2010 HRTO 2389 and Johnston v. Toronto Transit Commission 2011 HRTO 923.

9As noted in Johnston above, the respondent 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 respondent has established a system which protects its employees’ privacy does not change the fact that the medical files at issue are the respondent’s own records regarding the applicant and its interactions with him.

10In my view, the respondent will not be in a position to meaningfully respond to all of the allegations in the Application without access to the medical files 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 applicant’s Occupational Health and Claims Management and WSIB files before requiring the respondent to file its Response subject to the conditions set out below.

EXTENSION OF TIME

11By correspondence July 28, 2011, the Tribunal Registrar granted the respondent’s request for an extension of time for the filing of its Response. A full Response (Form 2) must now be filed with the Tribunal by September 2, 2011. I therefore need not address that portion of the Request. I do however draw the respondent’s attention to Tribunal Rule 5.5 which authorizes various sanctions against a respondent if a full Response is not delivered in accordance with the Tribunal’s directions.

ORDER

12Counsel for the respondent shall have access to the portion of the applicant’s Occupational Heath and Claims Management and WSIB file(s) that relates to or is in issue in the Application, and may use and/or disclose such information for the purpose of responding to and defending the Application.

13Counsel for the respondent may review the relevant documents in the Occupational Heath and Claims Management and WSIB file(s) with those employees in the Occupational Heath and Claims Management Department who have custody of or responsibility for the applicant’s file(s).

14This Order should not be construed as in any way authorizing the discussion or disclosure of information or documents in the applicant’s Occupational Heath and Claims Management or WSIB file(s) with individuals with whom the applicant carries out his day-to-day employment duties (including supervisors).

15I find that the applicant’s bargaining agent, the Canadian Union of Public Employees (“CUPE”), is potentially affected by this proceeding and as such is entitled to receive notice of the proceeding. As per the Tribunal Registrar’s correspondence of July 25, 2011, the applicant is directed to provide the Tribunal with a contact address for CUPE. The respondent is also directed to provide the Tribunal with a contact address for CUPE. Once received, the Tribunal Registrar shall send a copy of the Application to CUPE.

16I am not seized of this matter.