Carrie Robinson v. United Steelworkers and Tony DePaulo, 2011 HRTO 1617

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 29, 2011 Citation: 2011 HRTO 1617 Indexed as: Robinson v. United Steelworkers

WRITTEN SUBMISSIONS

Carrie Robinson, Applicant ) Raj Anand, Counsel United Steelworkers, Respondent ) Brian Shell, Counsel Tony DePaulo, Respondent ) Beth Symes, Counsel

ORAL SUBMISSIONS

Carrie Robinson, Applicant ) Self-Represented United Steelworkers, Respondent ) Brian Shell, Counsel Tony DePaulo, Respondent ) Beth Symes, Counsel

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. There have been two Interim Decisions in this matter, one of which, an Interim Decision dated August 22, 2011 (2011 HRTO 1570) (the August 22 Interim Decision), addresses some of the disclosure issues in this matter, which is scheduled for hearing commencing September 12, 2011.

2The August 22 Interim Decision was written on the basis of a request for disclosure contained in materials filed by the respondent Union. Because of difficulties related to technology that affected the attempt by the personal respondent to file a Request for an Order During Proceedings dated August 8, 2011, that Request did not reached the Tribunal until August 24, 2011, and the Interim Decision did not consider that Request. Nor did the August 22 Interim Decision consider a Response to that Request for an Order, which reached the Tribunal after the Interim Decision was sent to the parties. However, it was clear that at least one party had raised a disclosure issue arising very close to the date of the hearing. As a result, after reviewing the Applicant's Response, I issued a Case Assessment Direction on August 23, 2011, directing the parties to contact the Registrar's office, giving five dates and times, prior to September 1, 2011, on which they would be available for a two-hour conference call to make submissions on the need for and the nature of any Order concerning disclosure. The Tribunal has now received the personal respondent's August 8 Request.

3This Interim Decision addresses what witnesses will appear for the applicant, the disclosure of certain medical documents, and two requests for particulars in respect of matters raised in the Application. In coming to the rulings in this Interim Decision, I have considered both written material filed by the parties and the oral submissions given by the applicant (who is now self-represented) and counsel for both respondents in a teleconference on August 26, 2011. I have also considered subsequent e-mails dated August 26, 2011, from the applicant and from counsel for the personal respondent, that were forwarded to me on August 29, 2011.

Witnesses for the applicant

4Submissions from the applicant, filed on August 8, 2011, indicated that only the applicant would be giving testimony at the hearing, and that she would testify on the basis of her very detailed Application. On August 26, 2011, shortly after the teleconference, the applicant sent an e-mail to the Tribunal, copying the respondents. The e-mail acknowledged that the applicant had indicated that only she would testify, but went on to say "[i]f the proceedings are similar to an arbitration hearing in which documents will only be given any weight by the Tribunal if they are introduced as evidence by the author of the document then I need to advise you that I will have to call my family doctor...the independent medical examiner...and my psychologist".

5Counsel for the personal respondent has responded to the applicant's August 26 e-mail indicating that her client will object to the late inclusion of the three witnesses, will be prejudiced by the lack of timely disclosure and will seek an adjournment to prepare to cross-examine them if they are permitted to testify.

6In dealing with the applicant's request, I note that it is predicated on an assumption that the Tribunal might give no weight to documentary evidence. This assumption is incorrect. However, there is also no doubt that testimony from the authors of any documents is usually considered better than the documents alone.

7If the applicant wishes to call any of the witnesses she has mentioned in her August 26 email, she must file witness statements with the Tribunal, copying the respondents, by no later than September 2, 2011. Subject to the submissions of the parties, witnesses may be allowed to testify via teleconference if necessary.

Disclosure of records from the applicant's doctors and psychologist

8There are two classes of records to be dealt with. The first is documents that have been copied to the Tribunal and to the respondent Union, but not to the personal respondent. The records at issue can be described as follows:

a) a note dated November 20, 2009, from Dr Peranson b) a note dated December 8, 2009, from Dr Peranson c) a note dated January 15, 2010, from Dr Peranson d) a note dated February 16, 2010, from Dr Peranson e) a note dated March 1, 2010, from Dr Peranson f) a note dated March 22, 2010, from Dr Peranson

In addition, there is a letter dated April 28, 2010, from Dr Sutton to Mr Rootes, filed by the Union in its pre-hearing disclosure of documents on which it intends to rely. As noted in the August 22 Interim Decision, this document was not among the applicant's brief of documents. In the teleconference, the applicant indicated that she thought it had been among the documents she had filed.

9In her August 22 Response to a Request for an Order During Proceedings, and in the teleconference, the applicant takes the position that her medical records are "confidential and privileged, and they are not relevant to the allegations against" the personal respondent. Her position is that the records should not be disclosed to the personal respondent, apparently because she considers them relevant only to the issue of accommodation. In addition, she states that she has had little contact with the personal respondent since September 2009. Finally, she asserts that the documents are highly sensitive and confidential.

10On the issue of relevance, I have had the benefit of reading the above-noted records, as well as the Application. In her Application (as amended by an Interim Decision, dated December 16, 2010 (2010 HRTO 2498)), the applicant has claimed a monetary remedy for, among other things, "psychological harm", as well as "special damages" for unspecified "out of pocket expenses".

11All but two of the records identified above are relatively uninformative doctor's notes concerning time off from work and return to work. Only two, the note dated November 20, 2009, and the letter dated April 28, 2010, from Dr Sutton to Mr Rootes, contain information about the applicant's then medical condition. Both documents refer to the personal respondent, and are closely focussed on facts alleged in the Application.

12The test for production of medical records is the same as for other types of documents. That is, they must be of arguable relevance; a "fishing expedition" into the applicant's medical history will not be allowed.

13It is clear that the above-noted records are relevant to the applicant's claims for remedy. The claims are made against the personal respondent, as well as the respondent Union. In making a decision concerning their disclosure I must balance the general duty to produce all relevant documents needed for a fair hearing of the issues and the applicant's privacy interests. In this case, the applicant has put the effect on her health in issue in respect of remedy, in her case against the personal respondent as well as in that against the respondent Union. Fairness to the respondent outweighs the applicant's privacy interest in this instance.

14The applicant's Response indicates that the request for disclosure should be considered premature because the relevance of the documents is disputed, and because of her assertion of privilege. The applicant cites Iley v. Sault Community Information and Career Centre, 2010 HRTO 1421, as authority for the proposition that the Tribunal "must" deal with disputes in these circumstances at the hearing. I do not read Iley as imposing any such rule, and I note that the Tribunal has in a number of decisions dealt with disputes concerning disclosure prior to a hearing. A recent example of these decisions is Hatton v. Ontario Lottery and Gaming Corporation, 2011 HRTO 1097.

15On request of counsel, I gave an oral ruling at the teleconference on August 26, 2011, that the applicant disclose the medical records identified above in paragraph 8 of this Interim Decision. While the applicant did not agree with the disclosure, there was agreement concerning the method of disclosure (the applicant will send scanned records to the personal respondent's counsel by e-mail) and in regard to the following conditions of disclosure:

a) counsel for the personal respondent will make a paper copy for the personal respondent, and forward it to him; b) the personal respondent will not copy the documents, and will discuss their contents only with his counsel and in the course of proceedings related to this Application; c) the personal respondent will return his copy of the documents to his counsel at the conclusion of the hearing of this Application, and counsel will destroy all copies of the documents in her possession after a decision is made on the merits of the Application and any remedies that might be ordered, and a final decision has been reached concerning any possible judicial review.

16The second category of records at issue in this Interim Decision is documents that, while arguably relevant, have been disclosed to neither of the respondents. Both the note dated November 20, 2009, from Dr Peranson and the letter dated April 28, 2010, from Dr Sutton to Mr Rootes refer to other treatment (by a psychologist) being received by the applicant. From the context, it is possible that records relating to this treatment may be relevant to the Application. During the course of the teleconference on August 26, 2011, in addition to confirming that she was seeing a psychologist during the relevant time, the applicant indicated that she had consulted one or more other family physicians in the same practice, prior to seeing Dr Peranson.

17After hearing the parties' submissions, I conclude that records of both the applicant's family physicians and her psychologist from May 30, 2004, to the date of this Interim Decision may contain material relevant to the Application. As noted above, while the general rule is for disclosure of any "arguably relevant" documents, this does not end the question where issues of privacy or privilege are raised. The applicant pointed out that there may be material in these records that is not even "arguably" relevant to the Application.

18In some cases, the Tribunal has ordered the disclosure of medical records to itself, so as to review the documents and, if arguably relevant, order them disclosed. See McEwan v. Commercial Bakeries Corporation, 2004 HRTO 13. However, in this instance, the failure of the applicant to address the disclosure obligations set out in the Rules has left insufficient time for any similar procedure.

19The applicant is ordered immediately to obtain all records concerning her treatment by both her family physicians and her psychologist from May 30, 2004, to the date of this Interim Decision, and make copies of these records for the respondents and for the Tribunal. If there is material in those records that the applicant can fairly assert is not even arguably relevant to the Application, she may make separate copies, clearly marked, for the personal respondent, the Union and for their counsel (two copies for each respondent), and redact that information only in the copies that go to the Union itself and the personal respondent himself, leaving copies for the two counsel unredacted. As well, if the applicant intends to provide redacted versions to the personal respondent and the Union, the applicant is directed to provide both redacted and unredacted versions to the Tribunal. In this eventuality, counsel for the respondents are directed not to disclose the redacted information to their clients. I will deal with any disputes regarding any redacted information at the start of the hearing.

20If the applicant concludes that all of the material in the above-noted records is arguably relevant to the substance of the Application, she must make three copies, sending one to the Tribunal and one each to the respondents.

21In fairness to the applicant, as well as the respondents, the applicant is reminded that negative inferences can be drawn from failure to disclose arguably relevant documentary information. It is in all parties' interest that arguably relevant information be disclosed.

22In respect of all of the medical documents dealt with in this Interim Decision, counsel may disclose the documents to any medical specialist they wish to consult prior to the hearing, with the usual conditions of confidentiality.

Particulars of allegations in the Application

23Counsel for the respondents have indicated that, although the Application requests "special damages for out of pocket expenses", they have received no indication from the applicant as to what these might be. Both counsel for the respondents have requested particulars of the applicant's claim for special damages, and disclosure of any documents to be given in evidence in respect of this claim.

24The applicant is ordered immediately to send the Tribunal, copying the respondents, a description of the nature and amount of any claim for out-of-pocket expenses, together with any documentary evidence that might support this claim, such as receipts.

25During the teleconference, counsel for the Union referred me to paragraph 33 of the amended Application in which the applicant referred to "other situations" in which an accommodation sought by her had been arranged, and indicated that the Union has received no particulars that would allow it to confirm or rebut that suggestion. If the applicant wishes the Tribunal to place any weight on the suggestion made in paragraph 33, she must disclose identifying information, such as dates and names, to the respondents immediately.

Further case management

26It is clear that the applicant is very late with disclosure. It is not at this point clear whether the applicant will call any witnesses, and what might be the volume and nature of the further documentary disclosure referenced above. I will hear from all parties on the first day set aside for hearing as to the implications of the situation at that time. If the applicant decides to call witnesses, those witnesses need not be available for the first day of hearing.

27The applicant, who is not represented at this point, should consult the Guide to Hearings before the Tribunal, as well as the Rules. These materials are available on the Tribunal's website, www.hrto.ca, or from the Registrar.