HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Harry Guthrie

Applicant

-and-

Upper Grand District School Board, Cheryl Mousseau and Darryl Kirkland

Respondents

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: August 26, 2011

Citation: 2011 HRTO 1605

Indexed as: Guthrie v. Upper Grand District School Board

APPEARANCES

Harry Guthrie, Applicant ) Emily Guthrie, Representative

Upper Grand District School Board )

and Darryl Kirkland, Respondents ) Barry Brown, Counsel

Cheryl Mousseau, Respondent ) Self Represented

1This interim decision deals with preliminary matters and a request by two of the respondents, Upper Grand District School Board and Darryl Kirkland, for disclosure and production of certain medical records that they allege have been withheld by the applicant and that the respondents say are arguably relevant.

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination and harassment on the basis of disability and age. The hearing is scheduled for September 30, 2011. A conference call was held on August 17, 2011 to deal with the respondents’ request for disclosure and to address a number of preliminary issues.

Scope of the Hearing:

3At the outset of the conference call, the Tribunal sought clarification from the applicant as to the scope of the hearing.

4The applicant indicated that he did not seek to proceed with his allegations relating to discrimination on the basis of age but that he will argue that he has experienced harassment and discrimination on the basis of disability and that he has experienced reprisal or the threat of reprisal.

5The applicant also clarified that the allegations before the Tribunal are limited to the period from December 2009 forward, as matters prior to that time frame have been the subject of grievances.

Compliance by Respondent Mousseau with Disclosure and Production Obligations

6As indicated above, this Application is scheduled to be heard on September 30, 2011. The Tribunal sent out a Notice of Confirmation of Hearing, dated May 10, 2011, with the hearing date noted above. The Notice indicated that the parties were to meet the disclosure requirements set out in Rules 16 and 17 of the Tribunal’s Rules of Procedure.

7Rules 16 and 17 require the parties to send all arguably relevant documents to each other. In addition, they are to send each other as well as the Tribunal, copies of the documents they wish to rely on at the hearing, a list of proposed witnesses and statements briefly describing the witnesses’ intended testimony. Some of these requirements must be met no later than 21 days after the Confirmation of Hearing Notice is first issued; some no later than 45 days prior to the first day of hearing.

8The Tribunal received packages of materials from counsel for the respondent school board and respondent Kirkland on August 9, 2011 and a package of materials from the applicant on August 11, 2011. The Tribunal has yet to receive any materials from respondent Mousseau, who is now self-represented.

9Rule 5.6 of the Tribunal’s Rules of Procedure states that when a party fails to deliver materials to another party as required by the Tribunal’s Rules the Tribunal may refuse to consider the material or may take any other actions it considers appropriate. Rules 16 and 17, as reinforced by Rule 5.6, are meant to ensure that parties know about any documents that are relevant to their case, and also what documents and witnesses they may face at the hearing.

10If respondent Mousseau has not already done so, she is directed to disclose all arguably relevant documents to the remaining parties immediately. In addition, if she plans to introduce documents or witnesses into evidence at the hearing, she must comply with Rules 16 and 17, and forward these materials to the remaining parties and the Tribunal immediately and in any event, no later than September 9, 2011.

11Failure to comply with Rules 16 and 17 may result in the Tribunal refusing permission to introduce documents or the evidence of witnesses that have not been disclosed.

Witness Statements:

12As noted above, applicant and counsel for the respondent school board and respondent Kirkland have submitted witness statements. However, they are lacking in specificity.

13For example, the witness statement of respondent Kirkland reads as follows:

Will give evidence about his interactions with the Applicant, his observations of the Applicant’s behaviour, both in and out of the classroom, and of the concerns expressed to him about the Applicant by staff and students

14The witness statement for the applicant’s spouse is reproduced below:

Emily Guthrie, my wife, will discuss the impact of these practices on our marriage: as a secondary school teacher and a Human Rights Representative for her school in District 19, she will query the Board’s accommodation practices with reference to systemic barriers. She will be asking for a policy remedy.

15Rules 17.1 and 17.2 read as follows:

17.1 Unless otherwise ordered by the Tribunal, not later than (forty-five) 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.

16In discussing the Rule, the Tribunal held as follows in C.D. v. Wal-Mart Canada, 2010 HRTO 426:

The exchange of documents (Rule 16) and witness statements (Rule 17) 45 days prior to the hearing is a critical part of the Tribunal’s process. It ensures that each party fully understands the other side’s case and enables the Tribunal to make Case Assessment Directions to structure the hearing. In appropriate cases, adoption of the witness statements may take the place of examination-in-chief of the witness. Witness statements should therefore be detailed and set out the particular evidence that the witness will give, rather than just general topics. A witness statement should be filed for each witness, including an applicant or individual respondent. Where the Application or Response itself makes clear the proposed testimony, the witness statement may simply confirm that the summary of facts in the Application or Response is complete and reflects the evidence that will be given by the applicant or individual respondent.

17The witness statements already filed do not comply with Rule 17. They provide no detail about the particular evidence that will be given. The parties are, therefore, directed to file amended witness statements that comply with the requirements outlined in Rule 17 by September 9, 2011.

Expert Witness

18If the applicant intends to seek to have Dr. Zielonko qualified as an expert, rather than as an ordinary witness testifying to his knowledge and observations as the applicant’s treating physician, the applicant must immediately, and in any event no later than September 9, 2011, comply with the Tribunal’s Rules governing expert witnesses.

Request for Order seeking Disclosure and Production:

19It is well-established that the basic principle in determining a production request is whether the requested documents are “arguably relevant” to the issues in dispute in the proceeding.

20In paragraphs 12 and 13 of McKay v. the Tribunal held as follows:

The threshold test for disclosure at the pre-hearing stage of a human rights proceeding is “arguable relevance”, which requires that there be some relevance between the sought-after material(s) and the subject matter of the complaint. The party seeking production must demonstrate a nexus between the information or document sought and the facts or issues in dispute before the Tribunal: Neusch v. Ontario (Ministry of Transportation), 2002 CanLii 46508.

The first step in determining what is relevant is the identification of the cause of action’s facts and the surrounding substantive law: Neusch, supra. A nexus may be established if the sought-after information goes to prove or disprove a fact or issue in dispute or provides an inferential link to support a theory of the case or line of defence. If the materials sought meet this threshold standard of “arguable relevance”, the Tribunal must next consider whether there any other issues or concerns, such as privilege or privacy, which may require a determination of terms and conditions upon which production may be ordered. Further, a finding that a document is arguably relevant for production does not mean that such information will necessarily be admissible as evidence at the hearing on the merits.

21As noted in Nassiah v. Peel Regional Police Services Board, 2006 HRTO 18 at paragraph 8, this is a relatively low threshold for the requesting party to meet. However, as the Tribunal stated in Lampi v. Princess House Products Inc., 2008 HRTO 1 at paragraph 10:

Documents which are arguably relevant may nevertheless not be ordered disclosed if they are privileged, the probative value is outweighed by potential prejudice to the party producing them, or if the timing of the request risks derailing a just and expeditious hearing.

22The Tribunal in Lampi (supra) also went on to point out that:

The Tribunal is also sensitive to privacy issues, particularly in relation to the production of medical records. Even where such records are arguably relevant, compelling privacy interests can be protected through such techniques as limiting the documents ordered to be produced, restricting the individuals who may view the documents, or ordering production to the Tribunal for inspection or redaction before disclosure: see, for instance, McEwan v. Commercial Bakeries Corporation, 2004 HRTO 13. The Tribunal may also order production without screening. It is, of course, understood that parties may not use material disclosed to them through the Tribunal’s processes for purposes other than its proceedings.

23I find that medical documentation relating to the applicant’s disabling conditions which are the subject of this Application and that relate to the material time as defined by the applicant (December, 2009 forward) fall within the meaning of what is arguably relevant to the factual and legal issues raised by the Application. This would include clinical notes and reports prepared during that time frame and would include the IME, prepared in the spring of 2010. I order production of all those records immediately, and in any event, no later than September 2, 2011 and address the question of the IME in particular below.

24Although the applicant argues that the pages of the IME already disclosed cover the issues at hand, one party to a proceeding cannot normally produce only those portions of a document they deem to be relevant. Arguably relevant documentation should be produced in its entirety unless there are exceptional circumstances, such as claims of privilege which preclude disclosure in the normal course.

25Having viewed only pages 18 to 21 of the IME, it seems to me that the balance of the report is likely to meet the standard of arguable relevance with respect to the factual and legal issues raised in the Application, specifically the nature of the applicant’s disability, his ability to return to the workplace and the types of accommodations necessary to facilitate such a return. Given the importance of understanding the context of the recommendations made by the author of the IME, I find that the respondents are thus entitled to full disclosure and not merely to only portions of the document selected for viewing by the applicant.

26I have heard and understand the applicant’s concerns relating to the privacy issues he has raised. He and his wife argued that the IME report contains his reporting of personal, private and highly sensitive feelings concerning his family members and relationships; information that they do not wish to be disclosed to his employer.

27I agree that while the applicant’s conversations reporting his feelings about personal relationships with his family members may be relevant in the health care context, this information is unlikely to be relevant to these proceedings and of little assistance to me in determining whether a breach of the Code has occurred.

28I, therefore, direct the applicant to provide a copy of all pages of the IME to the parties and the Tribunal, having redacted only those portions containing his reporting of feelings about personal relationships with family members.

29The applicant is also directed to bring an unredacted copy of the IME to the first hearing date, at which time I will hear from the parties if the respondents wish to request that I view and compare the redacted and original documents to ensure compliance with this order.

30The parties are, of course, reminded of their obligation to treat sensitive medical information with the utmost care and to be mindful of their responsibility to ensure that the material that is produced is not used for any purpose other than this proceeding.

31Finally, if the respondents take the view that the redacted material is arguably relevant to issues not canvassed to date, it is open to them to raise the issue during the course of the hearing.

ORDER:

32If respondent Mousseau has not already done so, she is directed to disclose all arguably relevant documents to the remaining parties immediately. In addition, if she plans to introduce documents or witnesses into evidence at the hearing, she must comply with Rules 16 and 17, and forward these materials to the remaining parties and the Tribunal immediately and in any event, no later than September 9, 2011.

33The remaining parties are directed to serve and file amended witness statements that comply with Rule 17 by September 9, 2011.

34The applicant is directed to disclose and provide to the respondents, with a copy to the Tribunal, copies of all clinical notes and reports prepared from December, 2009 forward by September 2, 2011. The applicant may redact only those portions of the IME report containing his reporting of feelings about personal relationships with family members.

35The applicant is directed to bring to the hearing on September 30, 2011 an original, unredacted copy of the IME report.