De Wit v. City of Toronto, 2011 HRTO 2234

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Margaret De Wit

Applicant

• and-

City of Toronto – Toronto Public Health and Jan Fordham

Respondents

Canadian Union of Public Employees

Intervenor

Interim Decision

Adjudicator: Brian Cook

Date: December 13, 2011

Citation: 2011 HRTO 2234

Indexed as: De Wit v. City of Toronto

Introduction

1This Interim Decision concerns an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment on the basis of disability. The Application was filed on September 16, 2011 and was delivered to the respondents and the Canadian Union of Public Employees Local 79 (identified as an interested party) on October 3, 2011.

Request to intervene

2The Canadian Union of Public Employees Local 79 (the “union”) filed a Request to Intervene. The Request indicates that the union wishes to intervene to ensure that any resolution of or decision regarding this Application is consistent with the collective agreement and to assist the Tribunal and the parties.

3Neither party has filed a Response to the union’s Request to Intervene. The Request is granted. I am satisfied that the Union has the requisite interest in this Application. Should the Application proceed to a hearing, the scope of the Union’s intervention will be determined by the adjudicator hearing the matter.

The Response

4The respondents were required to file a Response to the Application by November 7, 2001.

5On October 13, 2011, counsel for the respondents wrote to the applicant asking her to sign a Direction and Authorization to allow counsel access to the files of the employer’s health unit and the files of the employer’s insurer regarding the applicant. The applicant asked the respondents to clarify why the information was being requested. The respondents’ counsel sent an email to the applicant on October 26, 2011, advising her that he required the information in order to respond to the Application.

6On November 1, 2011, the respondents filed a Request for Order During Proceedings asking for an order from the Tribunal directing the applicant to consent to the disclosure of the requested documents. The respondents also asked for an extension of the time by which they are required to file a Response. The Tribunal Registrar granted an extension to November 21, 2011.

7On November 21, 2011, counsel for the respondents filed another Request for Order During Proceedings, reiterating the previous request for disclosure of the requested documents, and asking for a further time extension of 35 days from the date that the respondents receive the requested documents.

8The Tribunal has not received any communication from the applicant in response to the Requests for Order During Proceedings filed by the respondent.

Decision

9As noted by the respondents, an applicant is required to disclose documents that are arguably relevant to the issues raised in the Application. In the Application, the applicant alleges that the respondents failed to accommodate her disability at various times during her employment. Documents in the files of the employer’s insurer and health unit that relate to the disability at issue in the Application are likely arguably relevant to the issues raised in the Application. However, the respondents’ request for documents may be broader than is appropriate for the purposes of this Application as it relates to all documents in the employer’s health unit and the files of the employer’s insurer regarding the applicant, whether or not they relate to the issues in this Application. In other words, there may be documents in the employer’s health unit and insurer files that are not arguably relevant to this Application.

10While the applicant will have to disclose arguably relevant documents or give the respondents consent to access the documents, the Tribunal’s Rules do not require the applicant to do so at this stage in the processing of the Application.

11The Tribunal’s rules regarding disclosure of documents are set out in Rule 16 of the Tribunal’s Rules of Procedure:

16.1 Not later than 21 days after the Tribunal sends a Confirmation of Hearing to the parties, each party must deliver to every other party (and file a Statement of Delivery):

a) a list of all arguably relevant documents in their possession. Where a privilege is claimed over any document the party must describe the nature of the document and the reason for making the claim; and,

b) a copy of each document contained on the list, excluding any documents for which privilege is claimed.

16.2 Unless otherwise ordered by the Tribunal, not later than 45 days prior to the first scheduled day of hearing, each party must deliver to every other party (and file a Statement of Delivery):

a) a list of documents upon which the party intends to rely; and

b) a copy of each document on the list or confirmation that each document has already been provided to the other parties in accordance with Rule 16.1.

16.3 Unless otherwise ordered by the Tribunal, not later than 45 days prior to the first scheduled day of hearing, each party must file with the Tribunal:

a) a list of documents upon which the party intends to rely; and

b) a copy of each document contained on the list.

16.4 No party may rely on or present any document not included on a document list and provided to other parties in accordance with Rule 16.1 and 16.2, and filed with the Tribunal under Rule 16.3, except with the permission of the Tribunal.

12A Notice of Confirmation of Hearing has not been sent in this case.

13The respondents suggest that they cannot file a Response in the absence of the requested information. They refer to previous decisions of the Tribunal that have confirmed that the Tribunal may vary or waive the application of its Rules, including the requirement to file a full response. However, the Tribunal has held that absent exceptional circumstances, a request for particulars or production of documents will not justify delay in filing a Response.

14One of the cases referred to by the respondents, Bryer v. (City) Toronto, 2010 HRTO 2389, is somewhat similar to the present case. It involved the same respondent as in this matter. In Bryer, the Tribunal agreed that the health unit records were necessary to allow the respondent to file a Response but that the insurance records were not.

15In the present case, it is not clear to me that the respondents require any of the requested documents in order to file a Response. The documents already filed by the respondent in support of the Requests for Order During Proceedings include a detailed history of the matter.

16I find that an order of the Tribunal directing the applicant to give the respondents access to her insurance records and records at the employer’s health unit is not appropriate at this time. The respondents must file a Response within 35 days of this Interim Decision.

17Having made this ruling, I note that the applicant may nevertheless choose to give the respondent access to further information. As noted, she will be required to disclose documents that are arguably relevant at a later stage. Documents in the files of the employer’s insurer and health unit that relate to the disability to which the Application relates may be arguably relevant to the issues raised in the Application.