Faye Hendy v. Nartech Metal Products Ltd., 2012 HRTO 1000

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Faye Hendy

Applicant

-and-

Nartech Metal Products Ltd.

Respondent

Interim Decision

Adjudicator: David Muir Date: May 17, 2012 Citation: 2012 HRTO 1000 Indexed As: Hendy v. Nartech Metal Products Ltd.

Written Submissions

Faye Hendy, Applicant ) Chris Surowiak, Representative Nartech Metal Products Ltd., Respondent ) George W. King, Counsel

1This is 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. This Interim Decision deals with a request of the respondent that this Application be dismissed as an abuse of process and concerns the applicant’s incomplete compliance with Orders made to produce documents to the respondent.

2The parties have become involved in a protracted dispute concerning the production of medical documents; primarily, but not exclusively, the applicant’s Workplace Safety and Insurance Board (“WSIB”) file from September 24, 2009, the date of a workplace accident preceding the events giving rise to this Application, to the present. The applicant initially resisted the production of the WSIB file to the respondent and appears to continue to take issue with its right to rely on it in these proceedings, although the applicant has also provided her consent to its use in these proceedings.

3By way of background the applicant was injured in a workplace accident on September 29, 2009. As a consequence of her injuries the applicant appears to have significant restrictions on her physical function. The applicant made a claim for benefits to WSIB. The applicant’s employment was terminated by the respondent in June 2010. The respondent took the position that it could not accommodate the applicant and the contract of employment had been frustrated.

4The applicant’s health and her functional capacity after the workplace injury are at the core of this dispute. As such the applicant’s WSIB file and any other medical information related to her state of physical health, in particular the effect of her back injury or her functional capacity is clearly relevant to the key issue in dispute in this case – whether the respondent had accommodated the applicant to the point of undue hardship when the decision to end her employment was made in June 2010. The applicant’s medical condition after her dismissal from employment is also relevant, primarily in relation to any potential appropriate remedy. The applicant also claims that the termination of her employment, as opposed to the accident and the injuries she suffered, have caused her psychological harm. Consequently, any medical records related to her mental health for a period of time prior to the accident and ongoing are relevant.

5Because of the parties’ inability to resolve these issues themselves I have been required to make a number of Orders. In an Interim Decision dated March 22, 2012, I made the following Orders:

1. The applicant will deliver to the respondent within 28 days of the date of this Interim Decision all medical reports, clinical notes, x-rays, assessments and examinations from all treating physicians, chiropractors, physiotherapists, psychiatrists, psychologists, hospitals or clinics or any health care practitioners, related to her back injury dating from September 24, 2009 to present.

2. The applicant will deliver to the respondent within 28 days of the date of this Interim Decision all relevant medical or health care documents related to an alleged diagnosis of depression or anxiety from September 24, 2008 to the present.

3. The applicant will deliver to the respondent within 28 days of the date of this Interim Decision her entire Workplace Safety and Insurance Board file (Claim # 25459262) from September 24, 2009 to the present; and

4. The applicant will provide her consent to the respondent referring to materials and documents in the WSIB file in this proceeding.

6In correspondence dated April 30, 2012, the respondent requested that the Application be dismissed as an abuse of process based largely on an alleged failure on the part of the applicant to comply with the Tribunal’s Directions to produce the WSIB file to date as well as other medical documents. The respondent’s request to dismiss has been reiterated on a number of occasions because of the applicant’s continued refusal to provide the respondent with the complete WSIB file. On May 15, 2012, the respondent reiterated its position that the Application be dismissed as an abuse of process, or alternatively, that the hearing scheduled to take place on June 4, 5 and 6, 2012 be adjourned and the applicant be given a specific date for compliance, failing which the matter will be dismissed.

7The applicant has taken the position that the respondent has access to the WSIB file and on various occasions appears to suggest that the WSIB will not provide updates to her to provide to the respondent, although this is not clear. The applicant also states that she has provided “hospital records” from 1997 to date.

8In a Case Assessment Direction issued on May 11, 2012, I indicated to the parties that I was not prepared to determine the respondent’s Request based on the submissions. Given that it was the failure of applicant to provide a copy of the WSIB file to the respondent that was at the heart of the respondent’s request the uncertainty around that issue needed clarification. I directed the parties as follows:

a. The applicant will confirm or not in writing before the end of the day May 14, 2012, that she did or did not object to the release of the WSIB file to the respondent in response to the January 25, 2011 letter to her from the WSIB;

b. The applicant will also confirm or not in writing before the end of the day May 14, 2012, that she has otherwise complied with the Orders made on March 22, 2012;

c. The respondent will confirm or not in writing before the end of the day Monday, May 14, 2012, that it did not receive the WSIB file in early 2011, or at any time in preparation for the objection to the WSIB’s SEIF determination;

d. Upon receipt of these submissions the Tribunal may make further Directions.

9The issue of the respondent’s access to the WSIB file has been clarified. The applicant is correct that the respondent has had access to the file up to January 2011. The respondent does not disagree. It follows that the respondent has had no access to the file since then. The respondent submits that these documents are arguably relevant to remedy. I agree.

10Beyond the certainty that the respondent has the WSIB file to January 2011, it is not clear what other extant medical information that I ordered produced on March 22, 2012, has been produced. The applicant indicates that she has provided all of her “hospital records” from 1997 to present and then refers to her psychological health prior to these events. The applicant also makes reference to the fact that the respondent has access to all of the medical records related to the workplace injury. As I have previously indicated the workplace injury as such is not particularly relevant to the issues in this case, rather it is what followed the accident, and the evidence related to the applicant’s functional capacity and the respondent’s efforts to accommodate her that is relevant.

11The applicant essentially takes the position that nothing after January 2011 (when the respondent last had access to the WSIB file) is relevant. This is not necessarily so. In this regard the respondent states amongst other things that it is its belief that the applicant has taken the position in the WSIB proceeding that the psychological issues she now experiences flow from the workplace accident and not the termination of her employment. If correct, this would be highly relevant to the issue of remedy in this case. Similarly, if the medical evidence in the WSIB file indicates that the applicant was unable to perform any work at all after January 2011, that would also have an impact on the potential remedies that might be awarded.

12I am not satisfied that it would be fair just or expeditious to dismiss this Application as an abuse of process. I do share the respondent’s concern that it may still not have all of the applicant’s arguably relevant documents. It is also seems clear that the applicant has not fully complied with the March 22, 2012 Orders. Despite the difficulties in the respondent getting any kind of production from the applicant, I am not satisfied that the situation has reached the state that the only remedy is to dismiss the entire Application. Despite the applicant’s various responses to the respondent’s request for documentation the applicant does appear to be making some effort in that regard – in one instance going well beyond what my Order required and providing medical information to the respondent going back to 1997 – much of which is likely completely irrelevant. I am not satisfied as of yet that the applicant is ungovernable as suggested by the respondent.

13It also seems to me that the applicant’s failures to produce only really go to the question of the appropriate remedy should a violation of the Code be found. The respondent made a decision to end the applicant’s employment based on information that it had at the time. As I have already suggested, it seems to me that a respondent’s decision must be evaluated based on the information available to it at the time the decision was made. As such, medical information which was not known to the respondent at the time, which would presumably include medical information that did not exist at the time, will in most cases be entirely irrelevant to an assessment of a respondent’s decision to terminate a disabled employee. Therefore, I find that the applicant’s failures to date have not substantially prejudiced the respondent’s right to respond to the central issue in this case.

14I do agree with the respondent that the applicant has not completely complied with my Orders and that this could prejudice its ability to answer the applicant’s remedial claim. However in my view that is an issue that can be addressed in other ways. While the applicant’s limited production of post-termination materials may well have consequences for any remedial relief she may be entitled to seek, in all of the circumstances it does not appear to me that the applicant’s failures to date to constitute an abuse of process.

15I am not seized of this case.