LeBlanc v. Toronto Transit Commission, 2011 HRTO 1538

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael LeBlanc

Applicant

• and-

Toronto Transit Commission

Respondent

INTERIM decision

Adjudicator: Douglas Sanderson

Date: August 17, 2011

Citation: 2011 HRTO 1538

Indexed as: LeBlanc v. Toronto Transit Commission

wRITTEN SUBMISSIONS BY

Michael LeBlanc, Applicant ) Self-represented

Toronto Transit Commission, Respondent ) Steve Lavender, Counsel

1This is an Application filed on December 7, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision addresses a Request for Order During Proceeding filed by the respondent on July 27, 2011 to order the applicant to comply with his disclosure obligations under the Tribunal’s Rules of Procedure (the “Rules”) and for disclosure of certain arguably relevant documents (the “Request”). The respondent also requests an order extending the time for delivery of witness statements and expert reports until 60 days following delivery of the documents and records requested in the Request. The applicant filed a Response to a Request for Order (Form 11) (“Response to Request”) on August 3, 2011.

2The Tribunal originally scheduled this matter for hearing on August 24 and 25, 2011. Based on these dates, the Tribunal also established deadlines for disclosure pursuant to Rules 16 and 17 or the Tribunal’s Rules of Procedure. On July 5, 2011, the Tribunal rescheduled the hearing for September 28 and 29, 2011, pursuant to the respondent’s Request, to which the applicant agreed. The Tribunal established new disclosure deadlines based on the new hearing dates. Pursuant to these new deadlines, the parties were to comply with Rule 16.1 requiring disclosure of all arguably relevant documents by July 26, 2011. The Tribunal granted the applicant’s request of July 22, 2011 to extend the deadline for disclosing arguably relevant documents to August 2, 2011. The Tribunal did not alter the August 15, 2011 deadline for compliance with Rules 16.2, 16.3 and Rule 17 (Disclosure and Filing of Documents to be Relied Upon, Witness Lists and Summary of Each Witness’ Evidence).

Pre-Hearing Disclosure under the Rules of Procedure:

3Rules 16 and 17 of the Rules deal with parties pre-hearing disclosure obligations as follows:

RULE 16 DISCLOSURE OF DOCUMENTS

16.1 Not later than 21 days after the Tribunal sends a Confirmation of Hearing to the parties, each party must deliver to every other party (and file a Statement of Delivery):

a) a list of all arguably relevant documents in their possession. Where a privilege is claimed over any document the party must describe the nature of the document and the reason for making the claim; and,

b) a copy of each document contained on the list, excluding any documents for which privilege is claimed.

16.2 Unless otherwise ordered by the Tribunal, not later than 45 days prior to the first scheduled day of hearing, each party must deliver to every other party (and file a Statement of Delivery):

a) a list of documents upon which the party intends to rely; and

b) a copy of each document on the list or confirmation that each document has already been provided to the other parties in accordance with Rule 16.1.

16.3 Unless otherwise ordered by the Tribunal, not later than 45 days prior to the first scheduled day of hearing, each party must file with the Tribunal:

a) a list of documents upon which the party intends to rely; and

b) a copy of each document contained on the list.

16.4 No party may rely on or present any document not included on a document list and provided to other parties in accordance with Rule 16.1 and 16.2, and filed with the Tribunal under Rule 16.3, except with the permission of the Tribunal.

RULE 17 DISCLOSURE OF WITNESSES

17.1 Unless otherwise ordered by the Tribunal, not later than 45 days prior to the first scheduled day of hearing, each party must deliver a witness list to every other party and file it with the Tribunal, along with a Statement of Delivery. The witness list must include the name of every witness, including expert witnesses, the party intends to present to the Tribunal.

17.2 The witness list must include a brief statement summarizing each witness’ expected evidence.

17.3 A copy of an expert witness’ written report, or full summary of proposed evidence, and curriculum vitae must accompany the witness list.

17.4 No party may present a witness whose name and summary of evidence was not included in a witness list and delivered and filed in accordance with Rules 17.1 and 17.2 or present an expert witness if material has not been delivered and filed in accordance with Rule 17.3, except with the permission of the Tribunal.

The respondent indicates that it complied with Rule 16.1 on or about April 21, 2011 and the Tribunal received the respondent’s disclosure pursuant to Rules 16.2, 16.3, 17.1 and 17.2 on August 15, 2011. The respondent alleges the applicant provided limited medical documentation on May 5, 2011, but has otherwise not complied with the requirements of either Rule 16.1(a) or 16.1(b). The applicant has not disclosed or filed any of the required material pursuant to Rules 16.2, 16.3, 17.1 or 17.2. Accordingly, the respondent has complied with its disclosure obligations; the applicant has not.

4As I noted in a previous Interim Decision in this matter, 2011 HRTO 1382, the applicant’s medical condition is a central issue in this matter. The applicant states he suffers disabilities (migraine headaches and sleep apnea) that the respondent did not accommodate and the respondent terminated his employment because of these disabilities. The respondent denies the applicant suffered a disability requiring the accommodation requested and alleges the applicant was dishonest regarding his absences and ability to perform work. The respondent asserts the applicant’s alleged dishonesty was grounds for dismissal for cause and denies any discrimination. Accordingly, the respondent seeks production of documents including, in particular, medical and clinical notes from 2000 to the present regarding treatment of the applicant’s migraine headaches and sleep apnea.

5The respondent provided detailed reasons for its belief that further, arguably relevant, medical information exists regarding the applicant’s stated disabilities. The respondent states that it intends to present expert testimony regarding the nature and extent of the applicant’s disabilities and the accommodations he requested, but cannot do so without access to all of the medical information regarding the medical conditions in question. The Tribunal has ordered production of arguably relevant medical information in previous cases; see Iley v. Sault Ste. Marie Community Information and Career Centre 2010 HRTO 880 and MacDonald v. Downtown Health Club for Women 2009 HRTO 1043.

6The applicant was also obliged to mitigate his damages by seeking new employment after the respondent dismissed him. Consequently, the respondent also asserts that all documents relating to the applicant’s job search, employment and earnings following the applicant’s dismissal are also arguably relevant.

7In his Response to Request, the applicant did not oppose the request for medical documentation, but stated that he would “supply all documents” after consulting with a lawyer on August 10, 2011. The applicant did oppose the request for documents regarding his job search on the basis that “the companies I have applied to are of no concern to the Respondent since being terminated.”

8I find that documentation related to the treatment of the applicant’s sleep apnea and migraine headaches to be arguably relevant to this matter. Any documents regarding the applicant’s mitigation efforts are indeed arguably relevant. The applicant was not entitled to delay meeting his disclosure obligations until consulting with a lawyer. Therefore, I make the following order regarding the production of documents:

The applicant shall immediately comply with Rules 16.1, 16.2, 16.3, 17.1 and 17.2 and, in particular the applicant shall deliver to the respondent the following documents:

a. Complete clinical notes and records from Beach Clinic (Dr. E. Somi and any other treating physicians) regarding treatment for migraine headaches from February 2000 to the present;

b. Complete clinical notes and records from any other specialist or doctor that the applicant has consulted with or been referred to for migraine headaches;

c. Complete clinical notes and records from any other specialist or doctor that the applicant has consulted with or been referred to for sleep apnea, including but not limited to the Ellesmere Sleep Disorders Centre;

d. All documents in the applicant’s possession regarding his mitigation efforts, including correspondence (such as cover letters) with prospective employers, job advertisements to which the applicant applied or considered and records of any income earned since his dismissal (including tax returns or T4 slips).

The respondent also requested a decoded OHIP Summary from February 2000 to present. The respondent did not explain what information is contained in this document or how it is arguably relevant to this case. Consequently, I decline to order production of the applicant’s OHIP Summary.

9The respondent’s request to extend the time for delivery of witness statements and expert reports until 60 days following delivery of the production ordered in paragraph 7, above, is in effect a request to adjourn the hearing. I do not think such an extension or adjournment is warranted in these circumstances – yet. Rule 1.7(a) states as follows:

1.7. In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may:

a) lengthen or shorten any time limit in these Rules

Rule 5.2 states as follows:

5.2. The Tribunal may vary or waive the application of these Rules at any time on its own initiative or on the request of a party, with or without terms as the Tribunal considers appropriate in accordance with Rule 1.1.

10Pursuant to Rules 1.7(a) and 5.2, I extend the time for the respondent to deliver and file witness statements and experts’ reports arising out of the disclosure ordered in paragraph 8, above, to September 19, 2011. I recognize, however, that the respondent may not have time to retain and instruct its intended expert(s) if the applicant does not produce the required medical information soon. Accordingly, the Tribunal will convene a conference call with the parties to discuss the conduct of the case if the applicant does not produce the medical documentation I have ordered by August 22, 2011.