Rose Johnston v. Toronto Transit Commission, 2011 HRTO 923

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rose Johnston

Applicant

-and-

Toronto Transit Commission

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: May 13, 2011

Citation: 2011 HRTO 923

Indexed as: Johnston v. Toronto Transit Commission

1The applicant filed this Application alleging discrimination in employment on the basis of disability and sex, contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”).

2The respondent has yet to file a Response, stating that before it can do so, it must have access to personal health information contained in the applicant’s Occupational Health and Claims Management file (“health file”). To that end, the respondents has filed a Request for an Order during Proceedings (“the Request”) seeking an order from the Tribunal to “access, use and/or disclose the Applicant’s personal health information” contained in her health file “for the purpose of responding to and defending the Application.”

3This Interim Decision addresses the respondent’s Request for the above order as well as its request for an extension of time to file its Response. The applicant responded to the Request stating that the request was overly broad, and that production to the requested documents should be limited to counsel for the respondent. The respondent filed a further response to the applicant’s response.

Production of Documents before Response Filed

4The applicant, who is a bus driver, alleges that the respondent discriminated against her when it failed to accept her allegation of harassment by a passenger, subjected her to a psychiatric assessment and made a finding that she was unfit to drive a bus.

5The respondent submits that they need access to the applicant’s medical file kept by the Occupational Health and Claims Management Section, which is part of the respondent’s Human Resources Department. This medical file is deemed to be personal health information. Pursuant to the Personal Health Information Protection Act, 2004, SO 2004, c 3, Sch A access to the medical file may not be permissible unless the applicant gives her consent or a court or Tribunal orders it. The respondent sought the applicant’s consent, but this request was refused.

6Rule 16 of the Tribunal’s Rules of Procedure contemplates that parties to an Application will not be required to exchange arguably relevant documents until 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.

7Absent exceptional circumstances, the Tribunal will not permit a request for particulars or production of documents to delay the filing of a complete response: Glynn v. Lowe’s Companies Canada, 2009 HRTO 1180 at para 8. However, the Tribunal has also recognized in a similar situation that it is sometimes appropriate to order access to an internal medical file at an early stage in order to ensure that the respondents are in a position to meaningfully respond to the Application: Bryer v. (City) Toronto, 2010 HRTO 2389.

8As with the employer in Bryer, above, the respondent has established a special unit to interact with its employees in respect of disability issues in order to ensure that employees’ medical information will be kept confidential. The fact that the respondent has established a system which protects its employees’ privacy does not change the fact that the medical file at issue is the respondent’s own record regarding the applicant and its interactions with her.

9In my view, the respondents will not be in a position to meaningfully respond to all of the allegations in the Application without access to the medical file regarding how it treated the applicant and why it acted as it did. It is therefore appropriate to order production of arguably relevant documents in the Occupational Health and Claims Management file before requiring the respondent to file its Response subject to the conditions set out below.

10The applicant does not oppose the production of documents, but submits that, at this stage, production should be limited to counsel for the respondent. Counsel for the applicant questions why the respondent would need to discuss the contents of the file with witnesses, and expresses concern that her private medical information will be discussed with the persons with whom she works.

11The respondent states that the only witnesses with whom it needs to review these documents are the employees at the Occupational Health and Claims Management Department who have custody of or responsibility for the applicant’s file(s). That is, individuals with whom the applicant works (including supervisors) would not be covered by any order.

Extension of Time

12The respondent’s request that it be granted an extension of time for the filing of their Response until 35 days from the date on which the Tribunal issues its decision in respect of its Request. In the ordinary course, respondents have 35 days from the date of receipt of the Application to submit their Responses. In the circumstances, the respondent’s extension request is appropriate, particularly in light of a recent illness of counsel for the respondent.

Order

13The Tribunal makes the following order:

a. Counsel for the respondent shall have access to the portion of the applicant’s Occupational Heath and Claims Management file(s) that relates to or is in issue in the Application, and may use and/or disclose such information for the purpose of responding to and defending the Application;

b. Counsel for the respondent may review the relevant documents in the Occupational Heath and Claims Management file with those employees in the Occupational Heath and Claims Management Department who have custody of or responsibility for the applicant’s file(s); and

c. The respondent must file its Response within 35 days from the date of this Interim Decision.

14I am not seized of this matter.