Human Rights Tribunal of Ontario
B E T W E E N:
Garnette Rose
Applicant
-and-
Toronto Police Services Board, William Blair, Bruce Johnson and Larry Sinclair
Respondents
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Rose v. Toronto Police Services Board
1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), on June 10, 2011, alleging discrimination with respect to employment on the basis of race, colour, place of origin and ethnic origin.
2On August 31, 2011, the respondents filed a Request for Order During Proceedings ("RFOP") asking for an extension of time to file their Response and that the Tribunal order the applicant to consent to produce his Medical Advisory Service file.
3The applicant filed submissions on September 13, 2011, objecting to both requests.
ANALYSIS
Production of Medical Advisory Service File
4The respondents submit that the applicant's narrative indicates that, because of mounting stress over the alleged workplace discrimination, the applicant twice visited the respondent's Medical Advisor. The respondents request access to the applicant's Medical Advisory Service for the purposes of completing their Response.
5The applicant opposes the request on the basis that the Application is essentially a racial discrimination case and does not turn on issues of disability or medical health. The applicant submits that access to his confidential medical files will not enable the respondents to address the race-based events alleged in the Application. The applicant submits that the respondents are seeking an opportunity to go "fishing" in his medical files.
6The Tribunal denies the respondents' request for access to the applicant's medical files at this stage of the proceedings. The allegations contained in the Application are sufficiently detailed and, in my view, the respondents are in a position to meaningfully respond to the core allegations of the Application, namely racial discrimination, without access to the applicant's confidential medical files.
7As noted in other Tribunal's decisions, absent exceptional circumstances which are not present in this case, a request for production of documents will not delay the filing of a complete response: Glynn v. Lowe’s Companies Canada, 2009 HRTO 1180, and Ugolini v. Salvation Army Barrie, 2009 HRTO 1801. The Tribunal generally requires respondents to file a completed response prior to raising preliminary issues, such as requests for particulars or disclosure: Asefa v. Can-Am Logistics, 2010 HRTO 1531.
8Rule 16 of the Tribunal's Rules of Procedure contemplates that parties to an Application will exchange arguably relevant documents 21 days after the Notice of Hearing is sent out by the Tribunal, which in the normal course is after the Application, Response and any Reply have been filed. As such, I find the respondents' request for disclosure of the applicant's medical files to be premature. It remains open to the respondents to raise preliminary issues in the Response or to file a Request for an Order during Proceedings after filing their Response.
Extension of Time
9In addition to citing their need for the medial file, the respondents' request for an extension of time was also based on the fact that a number of individuals (who would have input in the Response) had limited availability over the past two months due to family illnesses, retirement and summer vacation.
10The Tribunal grants the respondents' request for an extension of time. The Tribunal accepts that the respondents require additional time to prepare their Response because a number of individuals who would need to be consulted for that purpose, including personal respondents and witnesses referenced in the Application, have been unavailable due to family emergencies, retirement and summer holidays.
ORDER
11For the reasons stated above, the respondents' request to access the applicant's medical files is denied and the request for an extension of time is granted. The respondents are directed to file their Response on or before October 21, 2011.
12I am not seized.
Dated at Toronto, this 30th day of September, 2011.
"Signed by"
Ena Chadha
Vice-chair