HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Michael Hatton
Applicant
-and-
Ontario Lottery and Gaming Corporation
Respondent
interiM DECISION
Adjudicator: Alison Renton
Indexed as: Hatton v. Ontario Lottery and Gaming Corporation
1The hearing in this matter is scheduled for September 7 and 8, 2011. Originally, it was scheduled for March 24 and 25, 2011, but was adjourned pursuant to an Interim Decision, 2011 HRTO 490, dated March 8, 2011. Recently, the applicant requested an adjournment of the September 2011 hearing dates, but this request was denied pursuant to an Interim Decision, 2011 HRTO 1564, dated August 19, 2011.
2In the Application, the applicant alleges discrimination on the basis of disability and reprisal in employment. There is an outstanding Request for Order During Proceedings (“RFOP”) that has been filed by the respondent and which needs to be addressed before the hearing commences.
3The respondent filed its RFOP on February 17, 2011 seeking production of the following:
Applicant’s medical documents related to his Application;
Records and documentation, including medical documentation, that the applicant provided to Medisys, the respondent’s third party disability management company, in support of his accommodation request or verification of his disability; and
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 applicant for the period February 22, 2008 until April 17, 2009, the date of the applicant’s termination, and permitting Medisys and its employees to speak about and testify regarding the confidential medical information contained in its file concerning the applicant. (The respondent had previously sent a consent form to the applicant for his signature.)
4The 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 February 2008. In keeping with the confidentiality surrounding all medical documentation and information collected by Medisys for the purposes of administering the DMP, Medisys has 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 does not and has never had access to the medical documentation and records upon which the applicant based his initial accommodation requests, and now bases his Application.
5On December 22, 2010, the respondent received a document book from the applicant’s former counsel containing fifty-five (55) tabbed documents produced in accordance with Rule 16.1 of the Tribunal’s Rules of Procedure. The respondent’s counsel wrote to the applicant on February 3, 2011 requesting production of all arguably relevant documentation, including medical documentation.
6The applicant filed a Response to the RFOP on August 19, 2011. In his Response to the RFOP, the applicant submits that he cannot provide these documents at this time. He states:
The Respondents [sic] request for my medical file in its entirety has made this case very complex for me as the file contains very personal and private consultations between several medical professionals, one being a psychiatrist whose clinical notes detail extremely private information of myself and other family members. I am very concerned that without having the opportunity to consult with a lawyer prior to making a decision to release the file would be unfair and potentially damaging to other family members, one of which is my spouse who is currently employed with the Respondent. I feel that opposing counsel is trying to use coercion to gain my consent to release medical documents. This is direct violation of the Personal Health Information Protection Act, section 18(1)(d) and I have not been able to gain legal clarification if these documents are in fact required for opposing counsel.
7The 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).
8In the Application, the applicant states “…I am filing this application because there are medical reasons why I could not continue the supervisory role and I provided OLG with extensive medical information to support the accommodation I required. OLG offered me inappropriate accommodation which I declined to accept and consequently I was terminated by OLG”. He alleges, at various points of his extensive Application, that he provided medical documentation to Medisys, and felt that he was discriminated on the basis of disability by the respondent while he was at work, and claims that one of the positions that he was offered as accommodation was unacceptable because it “would have exacerbated my medical condition”. In response to question A21 in the section about discrimination or harassment on the ground of disability, the applicant indicates that he plans to submit medical reports or documents related to his particular needs at the hearing.
9With respect to the applicant’s assertions that he does not have legal representation and he wishes a lawyer to provide him with advice on the release of these documents, I note that this issue was addressed in the Tribunal’s August 19, 2011 Interim Decision. At paras. 14 and 15, the Tribunal stated:
Even if I were to accept the applicant’s submissions that since May 2011 he has been unable to retain counsel because of the requirements of his mandatory work/co-op placement, I note that since February 2011, when the [Human Rights Legal Support Centre] no longer represented him, the applicant knew that he required new counsel if he chose to be represented. Therefore the applicant has known for approximately 6 months that he requires counsel and has not taken steps to retain counsel.
Further, the Tribunal does not require a party to be represented by a lawyer. Many parties who are self-represented appear before the Tribunal. The Tribunal’s policies and guides, which are found on its website, www.hrto.ca, provide information to self-represented parties about the Tribunal processes, including hearings. Not having counsel, or retaining counsel who is not available after the hearing date is set, are not reasons for having a hearing adjourned….
10Accordingly, since February 3, 2011 when the respondent wrote to the applicant taking the position that he was required to produce his medical documentation, the applicant has known that the production of his medical documentation has been at issue in this proceeding. Now, six month’s later, and shortly before the scheduled hearing days, the applicant is still asserting that he wants to obtain legal advice before disclosing the medical documentation. Six months, in my opinion, is more than sufficient for the applicant to have sought this advice and, at this stage of the proceedings, is not a reason for the documentation not to be produced.
11In my opinion, the medical documentation that was provided to Medisys is arguably 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 his possession or control; and
b) Copies of all documentation, including medical documentation as noted above, as well as all correspondence, including letters, e-mails, and notes in his possession or control which he provided to Medisys in support of his accommodation requests or verification of his alleged disability.
12Any information about the applicant’s family members that may be contained in (a) or (b) above that the applicant objects to producing, can be redacted by the applicant, although the Tribunal would expect that the remaining portions of the documentation be produced. If the respondent has concerns with the redacted documents after it receives them, it can notify the Tribunal and the Tribunal will hear those submissions in advance of or at the hearing.
13Further, at the hearing, the Tribunal can hear submissions from the applicant as to how to address in the Decision personal information that arises from the medical documentation.
14With respect to the applicant’s assertion that section 18(1)(d) of the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A is being violated, I note that section 18(1)(d) states that consent of disclosure “must not be obtained through deception or coercion”. I do not find those requirements have been met in these circumstances as I find the medical documentation to be arguably relevant to the issues raised in the Application.
15I 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) and because of the nature of the allegations in the Application, that documentation and information is relevant to this proceeding.
16The applicant shall be given two business days from the date of this Interim Decision to advise the respondent and the Tribunal by email whether he now consents to Medisys releasing these documents for the period February 22, 2008 to April 17, 2009 and permitting Medisys and its employees to speak about and testify regarding confidential medical information contained in its file concerning the applicant. If he consents, he can sign the consent form that was appended to the respondent’s RFOP found at Tab 1.
17If the applicant does not consent or does not respond within this time period, 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 on either Monday, August 29 or Tuesday, August 30 and hear submissions about the Tribunal ordering Medisys to provide the documentation and information requested by the respondent.
Applicant’s Documentation and Witness Statements
18Rule 16 requires that the parties deliver to each other copies of arguably relevant documentation and then deliver to each other and file with the Tribunal copies of documentation upon which it intends to rely. Rule 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 documentation under Rule 16 and filed its witness statements, but the applicant has not although it appears that some documentation was provided to the respondent in December 2010, but not to the Tribunal.
19The applicant is directed to immediately deliver to the respondent and file with the Tribunal copies of documentation upon which it intends to rely and his list of witnesses and witness statements. The Tribunal draws the applicant’s attention to Rules 5.6, 16.4, and 17.4.
Dated at Toronto, this 24th day of August, 2011.
“Signed by”
Alison Renton
Vice-chair