Ahmed Akash v. Toronto Transit Commission and Amalgamated Transit Union Local 113, 2011 HRTO 583

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ahmed Akash Applicant

-and-

Toronto Transit Commission and Amalgamated Transit Union Local 113 Respondents

INTERIM DECISION

Adjudicator: Ena Chadha Date: March 23, 2011 Citation: 2011 HRTO 583 Indexed as: Akash v. Toronto Transit Commission

1The applicant filed this Application on January 20, 2011, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and reprisal with respect to employment on the basis of disability.

2The Application relates to alleged differential treatment as to workplace accommodation following an occupational injury. The applicant alleges that, as an employee in an accommodated position, he is denied the “spread allowance” paid to regular employees who work 8 hours spread over a 12-hour day. The applicant further alleges that he was denied appropriate modified work on shifts of his preference and experienced reprisal, including harassment and unfair discipline, for raising human rights concerns. The Application appears to suggest there may be an ongoing grievance(s) about some of these matters.

3On February 17, 2011, the Tribunal issued a Notice of Application to the respondent employer and respondent union. The Notice of Application notified the respondents that they were required to file their Response (Form 2) on or before March 24, 2011.

4On February 25, 2011, the respondent employer filed Requests for Order During Proceedings (“Requests”). The respondent employer requested that the Tribunal 1) permit it to have access, use and disclosure of the applicant’s Occupational Health file and Workplace Safety and Insurance Board file (“applicant’s files”) and 2) grant an extension of the deadline to file its Response until such time as it is able to access and review the applicant’s files.

5On March 4, 2011, the respondent union wrote to the Tribunal indicating its consent to the respondent employer’s Requests and also requesting a similar extension of time to file its Response.

REQUEST TO ACCESS OCCUPATIONAL HEALTH FILE

Respondent Employer’s Position

6The respondent employer argues that all information related to the applicant’s medical restrictions and workplace accommodation is contained in the applicant’s files as maintained by a branch of its human resources department. The respondent employer submits that it is necessary for it to review these materials in order to respond to the applicant’s allegations. The respondent employer submits that it is unable to file its Response until it has had the opportunity to access and review the applicant’s files with its advisors, instructors and individuals who are potential witnesses in relation to information contained in the applicant’s files. The respondent employer asks the Tribunal to authorize its access, use, and/or disclosure of the applicant’s files for the purposes of responding to the Application.

7The respondent employer notes that it seeks the Tribunal’s authorization because there may be a conflict with respect to privacy standards required by applicable legislation. The respondent points out that the expectations and protections under the Personal Health Information Protection Act, 2004, S.O 2004, c. 3, Sched. A (“PHIPA”), for health information custodians regarding disclosure may be different from the duty imposed on employers by the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”). The respondent employer also notes that some Tribunal jurisprudence has allowed health information custodians to use or disclose personal health information for the purpose of preparing a Response to an Application. See Basic v. Royal Health Care Centre, 2009 HRTO 1834 and Hunter v. North Halton Mental Health Clinic, 2010 HRTO 750).

Applicant’s Position

8The applicant opposes the respondents’ Requests.

9The applicant submits that the respondent employer did not dispute the legitimacy of his injury or medical claim when his disability and accommodation were established and approved by the respondent employer’s occupational health department in conjunction with the Workplace Safety and Insurance Board. The applicant argues that there is no need to review his files at this stage of the proceeding, particularly since the respondent employer has not indicated whether or not it challenges his injury or medical claim. The applicant further submits that, once the respondent employer clarifies whether it disputes the legitimacy of his disability or accommodation, then the applicant would be willing to provide a standard consent form to allow the respondent employer to review any protected personal information including medical records.

DECISION

10Given the applicant’s agreement to consent to disclose his files upon clarification of the respondent employer’s position with respect to his disability, and in the interests of fairness and expeditiousness in the specific circumstances of this case, the Tribunal orders the following:

(i) All parties are required to write to the Tribunal, copied to each other, within seven days of this Interim Decision providing information as to the nature and status of the applicant’s workplace grievance(s);

(ii) Also within seven days of this Interim Decision, the respondent employer is required to write to the Tribunal, copied to the other parties, stating its position as to whether or not it disputes the applicant’s disability;

(iii) Within five days of receipt of the respondent’s correspondence regarding its position, the applicant is required to provide his written consent to the respondent employer authorizing disclosure of his files as maintained by the respondent employer’s human resources department. The applicant is required to write to the Tribunal, copied to the respondent union, confirming that he has provided consent;

(iv) The respondent employer’s advisors, instructors and potential witnesses (in relation to information contained in the applicant’s files) are the only individuals permitted to access and use the applicant’s files; and

(v) The respondents’ requests for an extension of time are granted. The respondents are required to file their Responses within 35 days from receipt of confirmation of the applicant’s consent.

11I am not seized of this matter.