Robinson v. United Steelworkers, 2011 HRTO 1570

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carrie Robinson

Applicant

-and-

United Steelworkers and Tony DePaulo

Respondents

INTERIM DECISION

Adjudicator: Judith Keene

Date: August 22, 2011

Citation: 2011 HRTO 1570

Indexed as: Robinson v. United Steelworkers

1The applicant filed an Application under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), on September 15, 2009. The Application alleges that the personal respondent discriminated against her on the basis of sex, and engaged in sexual solicitation and reprisal against her. She alleges that the union respondent failed to properly investigate her complaints about the personal respondent, and treated her in a differential manner.

2Pursuant to an Interim Decision dated December 16, 2010, 2010 HRTO 2498, and with no objection from the respondents, the Application was amended. The respondents were directed to file any amendments to their Responses that arose from the Interim Decision within 30 days. The Tribunal has received no amendment to the personal respondent’s original Response. The United Steelworkers (“the Union”) filed a Response to the amended Application on January 17, 2011.

3This Interim Decision addresses possible disclosure issues, which are always important and particularly so in the light of the more complicated Applications, such as this one.

4Witness statements and documents in compliance with Rules 16 and 17 of the Tribunal’s Rules of Procedure were due on July 28, 2011. The Tribunal has received packages of documents from the personal respondent and the Union. By letter of August 8, 2011, the applicant has indicated that she alone will be testifying, and has chosen to adopt her very detailed Application as her witness statement. She has also indicated that she will be relying on “all documents filed with the HRTO in her case against” the Union, and “all documents filed with the HRTO other than the excluded medical records in her case against” the personal respondent.

5The Union’s witness material does no more than identify each witness, and the topics upon which they will speak. It does not “summarize each witness’ expected evidence” as required by Rule 17. For a review of the requirements of Rule 17, see C.D. v. Wal-Mart Canada, 2010 HRTO 426. The Union is directed to file revised witness statements within ten days of the date of this Interim Decision.

6The Union filed a Request for an Order During Proceedings (“Request”) February 1, 2011, in which it requested particulars pertaining to certain named paragraphs of the amended Application. The Union has not reiterated its request subsequent to the exchange of pre-hearing documents, and unless I hear differently from the Union, I will assume that its request for particulars has been met

7On August 8, 2011, the personal respondent filed a Request for an Order requiring the applicant to comply with Rules 16 and 17. In view of the applicant’s above-referenced letter of the same date, I will assume that the respondent’s request has been met, unless I hear differently from the respondent, subject to the direction in the paragraphs below.

8On August 11, 2011, the Union filed a Response to a Request for an Order. The Response appears to encompass another Request; the Union objects to the applicant’s statement as to what documents she will rely on. I consider the Union’s position reasonable, as the applicant’s letter puts the onus on the respondents to identify all of the documents that the applicant has filed, and leaves open the possibility that the applicant might intend to rely on a document, apart from disputed medical records dealt with below, that the other parties do not have (which could occur, for example, through administrative error).

9In referring to “documents filed with” the Tribunal, the applicant is presumably referring to the bound brief of documents filed with the Tribunal on April 9, 2010, as part of a Request for an Interim Remedy. The brief was not sent to the personal respondent, and the Request was not dealt with. A Case Assessment Direction confirming the withdrawal of the Request, dated May 20, 2010, states:

I note that all parties have agreed to mediation, and it appears that the respondent De Paulo is not now requesting that the Request for Interim Remedy be provided to him or that his Request for Order be decided prior to the mediation. Accordingly, these issues will be dealt with after mediation, if necessary. The conference call, which was to deal with service and case management of the Request for Interim Remedy, is therefore cancelled.

10The Union’s August 11 Response to a Request for an Order also raises an issue about “medical documentation” in respect of the applicant that is apparently in the possession of the Union, which is the applicant’s employer, although it has not been disclosed to the personal respondent. The Union “advises that it intends to examine the applicant on such medical documentation when she takes the witness stand and the USW will then be entering those documents into evidence.” The Union requests that the medical documents be disclosed to the personal respondent.

11On November 24, 2010, the personal respondent filed a Request for production of “the medical records of the Applicant.” The wording of the Request suggested that the personal respondent might have been requesting only those records that are relevant to the applicant’s claim of damages, against the personal respondent, for “infliction of humiliation and psychological harm.” The Union took no position at that time with respect to the Request. In an Interim Decision dated December 16, 2010, the request was dismissed as premature (2010 HRTO 2498).

12Neither of the respondents has clearly indicated the scope of their request for disclosure of medical records, but it is inferable from the inclusion of certain documents in a disclosure package sent by the Union that the Union intends to rely only on the following:

a) a note dated November 20, 2009 from Dr Peranson (listed by the Union as Tab 4 but in fact found at Tab 52)

b) a note dated December 8, 2009 from Dr Peranson (listed by the Union as Tab 9 but in fact found at Tab 58)

c) a note dated January 15, 2010 from Dr Peranson (listed by the Union as Tab 13 but in fact found at Tab 64)

d) a note dated February 16, 2010 from Dr Peranson (listed by the Union as Tab 16 but in fact found at Tab 72)

e) a note dated March 1, 2010 from Dr Peranson (listed by the Union as Tab 28 but in fact found at Tab 87)

f) a note dated March 22, 2010 from Dr Peranson (listed by the Union as Tab 30 but in fact found at Tab 89)

g) an unsigned letter dated April 28, 2010 from Dr Sutton to Mr Rootes (listed by the Union as Tab 35 but in fact found at Tab 94).

13The applicant’s letter of August 8 2011 seems to imply that all of the medical records on which she intends to rely in her case against the Union are among the documents that have been “filed with the HRTO.” All of the medical documents included in the applicant’s brief in support of her Request for an Interim Remedy are included in the Union’s brief of documents. However, the document identified above as an unsigned letter dated April 28, 2010 from Dr Sutton to Mr Rootes is not among the applicant’s brief of documents. As this letter has been filed without a signature page, it is unclear whether the letter was copied to the applicant.

14The applicant is reminded that Rules 16 and 17 indicate that she has a duty to disclose arguably relevant documents for which privilege is not claimed, and that, if she intends to rely on a document, she must produce it to all parties and to the Tribunal. If a party maintains that any document is privileged or otherwise immune from disclosure, s/he has a responsibility to bring this matter to the attention of the other parties and to the Tribunal.

15The Tribunal is not bound by any particular rule that mandates the production of medical records. However, the test for production of medical records is the same as for other types of documents. That is, they must be of arguable relevance, as long as there is no fishing expedition into the applicant’s medical history. The Tribunal may order disclosure of medical records to itself, then may review the documents and, if arguably relevant, can order them disclosed. See McEwan v. Commercial Bakeries Corporation, 2004 HRTO 13 and Lampi v. Princess House Products Canada Inc., 2008 HRTO 1.

16Privilege with respect to medical records is decided on a case by case basis, balancing the general duty to produce all relevant documents, the applicant’s privacy interests, and any arguments in respect to privilege If the medical records are arguably relevant, the Tribunal may order the applicant to provide the medical records for inspection by the Tribunal at the hearing in order to assess their relevance to the proceedings. See McEwan and Lampi (above); Davis v. Toronto (City), 2005 HRTO 7 and Washington v. Toronto Police Services Board, 2009 HRTO 217 at para 34.

17The applicant is directed to send a list identifying precisely what documents, other than the Application, she will rely upon at the hearing, to both of the respondents within ten days of the date of this Interim Decision.

18If the applicant claims a right not to disclose any document to either one of the respondents, she is directed to file an appropriate Request for an Order within five days of the date of this Interim Decision, together with a letter copied to both respondents and to the Registrar, giving five dates and times prior to September 1, 2011, on which she will be available for a two-hour conference call to make submissions on the need for and the nature of any Order concerning disclosure. If the applicant does not choose to file a Request for an order that she need not disclose, the applicant is directed to send copies of all arguably relevant documents to both respondents. If the applicant claims a right not to disclose any document to either one of the respondents, she may withhold it until the issue is dealt with.

19If the applicant elects to file a Request to withhold any arguably relevant document, the respondents are ordered immediately to contact the Registrar’s office with five dates and times prior to September 1, 2011, on which they will be available for a two-hour conference call to make submissions on the need for and the nature of any Order concerning disclosure.