Boyce v. Toronto Community Housing Corporation, 2011 HRTO 1677

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Randolph Boyce Applicant

-and-

Toronto Community Housing Corporation, Mary Richardson and Natalie Patel Respondents

INTERIM DECISION

Adjudicator: Sherry Liang Date: September 12, 2011 Citation: 2011 HRTO 1677 Indexed as: Boyce v. Toronto Community Housing Corporation

1In this Application, filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), a hearing has been scheduled for September 20 to 22, 2011.

2On July 27, 2011, the respondents Toronto Community Housing Corporation (“TCHC”), Mary Richardson and Natalie Patel filed a Request for an Order During Proceedings asking for the following orders:

• Leave to file a Supplemental Response;
• An order that either the Workplace Safety and Insurance Board (“WSIB”) or the applicant produce all or portions of his WSIB file;
• In the alternative, as this file is already in the possession of the TCHC for the purpose of ongoing proceedings before the WSIB, order the applicant to consent to the TCHC’s use of all or portions of the file for the purposes of this Application;
• In the further alternative, an order that the TCHC is allowed to use all or portions of the WSIB for the purpose of this Application.

3The applicant filed a Response to the Request asking that it be denied.

SUPPLEMENTAL RESPONSE

4This Application was filed in 2008, and has been the subject of lengthy proceedings preceding the upcoming hearing. The respondents state that the Supplemental Statement clarifies their position, corrects certain typographical errors in the initial Response, includes reference to further documentation that was not available to the respondents at the time of the initial response but which are highly relevant to the Application, and clarifies the procedural history of the claim at the WSIB and before the Tribunal. In correspondence to the applicant explaining the purpose of the Supplemental Statement, counsel for the respondent states that the document from which the Statement is derived has either already been disclosed to them by the applicant or disclosed to the applicant by them and none of it should therefore be a surprise.

5The applicant objects to the Supplemental Statement but has not referred to any specific prejudice that would arise by allowing it to be filed and relied on.

6In all the circumstances, the Tribunal grants the request to file the Supplemental Statement as an amendment to the Response.

PRODUCTION OF DOCUMENTS

7The respondents state that although the TCHC has been given access to the applicant’s WSIB file for the purposes of the ongoing litigation at the WSIB, it cannot disclose or rely on these documents at the Tribunal without the applicant’s consent.

8The applicant objects to the request on the basis that it is a “fishing expedition”. He states that he has been more than generous in the release of medical information and the amount of medical information requested is troubling.

9The Application alleges that the TCHC failed to accommodate the applicant’s disability-related needs in the workplace, in contravention of the Code, following an injury in March 2005. The respondents submit that they made reasonable offers of accommodation and the applicant refused to co-operate or participate in the accommodation process.

10The respondents refer to several decisions by WSIB Adjudicators in 2006 which found that the applicant had been offered suitable work following his injury that fell within his medical restrictions and that he had been uncooperative in the WSIB’s Early and Safe Return to Work program. Parts of these decisions were overruled by a WSIB Appeals Resolution Officer. However, a further decision by a WSIB Adjudicator in May 2008 found that the work offered by the respondents was suitable, with respect to a subsequent period of time. This decision is currently under appeal at the WSIB.

11With respect to the documents from the Long Term Disability benefits (“LTD”) provider, the respondents state that the applicant applied for and received long term disability benefits in or around November of 2005.

12The documents that the respondents wish to either have disclosed to them, or receive consent to their use in the Application, are those that relate to the applicant’s physical restrictions/functional limitations, his participation or communication with the TCHC, any difficulty the WSIB and/or the TCHC were having locating him or communicating with him and any direct statements by the applicant about his perception of why the work offered was unsuitable and his perception of what his physical restrictions were.

13I am satisfied that the documents as described are at least arguably relevant to the issues in this Application. The respondents have also been careful in describing the documents to which they seek access, or to use and disclose for the purpose of the hearing, so as not to be overly broad. I will therefore order that they be produced to the respondents. Given the short time remaining before the hearing, and given that the TCHC already has the WSIB file in its possession, the applicant may, instead of producing them, provide his consent to the respondents to use and disclose the documents in the WSIB file for the purpose of the hearing. If the respondents seek to rely on any of the documents at the hearing, any ruling as to their admissibility will be left to the adjudicator presiding at the hearing.

OTHER PRELIMINARY ISSUE – REMOVAL OF PERSONAL RESPONDENTS

14The respondents’ Supplemental Statement submits that the personal respondents should be removed as parties to the Application and describes this as a preliminary issue.

15However, in the Form 10, no specific reference was made on this issue and it is therefore not apparent that the applicant has been given the opportunity to provide submissions on it. This issue may therefore be addressed at the outset of the hearing.

ORDER

16I therefore direct as follows:

• Before 5 p.m. on Wednesday, September 14, 2011, the applicant must produce to the respondents any documents in his WSIB file or LTD file that relate to his physical restrictions/functional limitations, his participation or communication with the TCHC, any difficulty the WSIB and/or the TCHC were having locating him or communicating with him and any direct statements by the applicant about his perception of why the work offered was unsuitable and his perception of what his physical restrictions were.
• If any of these documents are already in the possession of the TCHC, the applicant may, in the alternative to producing them, provide consent to the TCHC to use and disclose these documents for the purpose of the hearing.
• The respondents are given leave to file the Supplemental Statement as an amendment to the Response.

17I am not seized of this matter.