Eugene Ivanescu on behalf of Anna Ivanescu v. Credit Valley Hospital, The Manufacturers Life Insurance Company and Acclaim Ability Management, 2012 HRTO 1211

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eugene Ivanescu on behalf of Anna Ivanescu

Applicant

-and-

Credit Valley Hospital, The Manufacturers Life Insurance Company

and Acclaim Ability Management

Respondents

interim decison

Adjudicator: Sheri D. Price

Date: June 19, 2012

Citation: 2012 HRTO 1211

Indexed as: Ivanescu v. Credit Valley Hospital

1In this Application, filed under s.34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), the applicant alleges that the respondents discriminated against the claimant, his wife, on the basis of disability with respect to employment. In particular, and among other things, the applicant contends that the respondent employer, Credit Valley Hospital, breached its duty to accommodate the claimant’s disability-related needs when it refused to exempt the claimant from the requirement that she work all assigned shifts, including night shifts, when she sought to return to work from disability leave in 2010. The applicant alleges that the claimant was unable to work night shifts because of her disability.

2The hearing in respect of the Application is scheduled to continue on July 13, 18, 19 and 26, 2012.

3The purpose of this Interim Decision is to determine the following preliminary issues:

a. Whether the claimant’s doctor ought to be made available for cross-examination on her medical notes regarding the applicant’s disability-related needs and/or restrictions; and/or whether the Tribunal ought not to place any weight on the claimant’s doctor’s medical notes if the doctor is not made available for cross-examination.

b. Whether the claimant’s doctor ought to be permitted to testify in this proceeding by telephone; and

c. Whether the applicant ought to be required to produce certain documents to the respondent in advance of the upcoming hearing.

4The parties were given an opportunity to make submissions on the above-noted issues at a teleconference hearing on May 30, 2012, and the opportunity to make further written submissions on certain points, following the teleconference hearing.

WHETHER CLAIMANT’S DOCTOR OUGHT TO BE MADE AVAILABLE FOR CROSS-EXAMINATION ON HER MEDICAL NOTES

5At the hearing of this matter, the applicant seeks to rely on medical reports from the claimant’s family doctor dated February 17 and February 26, 2010, as evidence of the fact that the claimant was unable to work night shifts upon her return to work with the respondent employer in 2010. The family doctor’s February 26, 2010 report, in particular, indicated, among other things, that the claimant was unable to work shifts or nights upon her return to work with the respondent employer.

6The respondent employer submits that the February 2010 medical notes/reports of the claimant’s family doctor ought not to be admitted into evidence for the truth of their contents unless the author of such reports, Dr. Raczynska, is made available for cross-examination.

7The respondent employer disputes that the claimant was unable to work nights or shifts as a result of her disability upon her return to work in 2010. It submits that it has a right to test the applicant’s evidence that the claimant had such a disability-related need by subjecting it to cross-examination. In particular, the respondent employer submits that it has the right to cross-examine the claimant’s doctor on the validity and/or necessity of the recommendations contained in her February 2010 medical reports.

8The respondent employer submits that it is particularly important that it be permitted to cross-examine Dr. Raczynska on her medical reports because they constitute the only evidence that the claimant was unable to work night shifts during the time period in question. Moreover, this evidence will be key, the respondent submits, to determining the central issue in this Application, namely whether the respondent employer breached its duty to accommodate the claimant by requiring her to work night shifts upon her return to work in 2010. The respondent employer submits that it would be fundamentally unfair for the Tribunal to allow the applicant to lead Dr. Raczynska’s February 2010 reports as evidence on this central issue without allowing the respondent to challenge such evidence through cross-examination. Thus, the respondent employer submits that the Tribunal ought to require the applicant to make the claimant’s doctor available for cross-examination on her February 2010 medical notes/reports, failing which the Tribunal ought not to admit the doctor’s reports for the truth of their contents. In support of its position, the respondent employer relies on the Tribunal’s decisions in Baber v. York Region District School Board, 2010 HRTO 538, and Baber v. York Region District School Board, 2011 HRTO 213, at paras. 132-136; as well as the decisions in Jeffers v. Canada (Citizenship and Immigration), 2008 CHRT 25, Leonardis v. Canada Post Corporation, 2002 CanLII 45935 (C.H.R.T.), and Transcom North America & Asia v Moore, 2009 HRTO 2287 at para. 7.

9For his part, the applicant submits that the Tribunal’s decision in Baber is distinguishable from the case at hand. The applicant submits that the doctor in Baber clearly overstepped his/her professional role by recommending that the applicant in that case be placed in a specific job. By contrast, the applicant submits that, in stating that the claimant was unable to work night shifts, Dr. Raczynska was merely identifying a “minimal” accommodation that was obviously necessary to allow the claimant to recuperate from cancer. The applicant further submits that there is no reason for the respondent employer to doubt the honesty of the claimant’s doctor in the case at hand. In the circumstances, the applicant submits that the claimant’s doctor’s medical notes ought to be given weight even if the applicant did not call her to testify.

10Having said that, in light of the position taken by the respondent on this issue, and in light of the Tribunal’s advice to the applicant during the May 30, 2012 teleconference that the claimant’s doctor’s evidence would assist the Tribunal in determining this matter (see Rule 1.7(o) of the Tribunal’s Rules of Procedure), the applicant indicated during the May 30, 2012 teleconference hearing that he does intend to call the claimant’s family doctor as a witness at the hearing in July 2012.

11I recognize that the claimant’s doctor has recently agreed to be a witness in this proceeding and the applicant now intends to call her to testify. However, given the initial reluctance of the applicant to call the doctor as a witness, I agree with the respondent employer that it is prudent to determine the respondent’s objection to the admissibility of and/or the weight to be given to the claimant’s doctor’s medical notes in advance of the July 2012 hearing, in the event that for some reason the claimant’s family doctor ends up not being called to testify.

12A central issue in this case is whether the requirement that the claimant work night shifts upon her return to work in 2010 following a disability leave had an adverse effect on the claimant because of her disability, such that the respondent employer had a duty to accommodate the claimant by exempting her from the requirement to work night shifts.

13The contents of the claimant’s family doctor’s reports clearly relate to this central issue and are very much in dispute. As the Tribunal stated in Baber, supra, natural justice requires that the respondent be given the opportunity to test the reliability and veracity of the applicant’s medical evidence on a central issue in the case through the process of cross-examination. I agree with the respondent employer that it would be unfair to the respondent to permit the applicant to rely on the medical reports in question without making Dr. Raczynska available for cross-examination because it would restrict and prejudice the respondent’s ability to test the case against it.

14Accordingly, unless Dr. Raczynska is made available by the applicant for cross-examination on her February 2010 medical notes/reports, the Tribunal will not admit Dr. Raczynska’s medical notes/reports into evidence for the truth of their contents or place any weight on the contents of such medical notes/reports.

WHETHER CLAIMANT’S DOCTOR OUGHT TO BE PERMITTED TO TESTIFY BY TELEPHONE

15I now turn to the applicant’s request that that the claimant’s doctor be permitted to testify in this matter by telephone. As I understand it, the claimant’s doctor seeks to testify in this proceeding by telephone because that would least interfere with her professional responsibilities to her patients.

16The general expectation is that witnesses in proceedings before the Tribunal will testify in person. However, the Tribunal may permit witnesses to testify by telephone where the nature and extent of their testimony makes this arrangement fair, just and expeditious: Pinkney v. Datex Billing Services, 2009 HRTO 1732.

17This is consistent with the Tribunal’s power, pursuant to Rule 3.5 of the Tribunal’s Rules of Procedure, to “conduct hearings in person, in writing, by telephone, or by other electronic means, as it considers appropriate.” The Tribunal’s power to conduct telephone hearings is also informed by s. 5.2(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), which states:

The tribunal shall not hold an electronic hearing if a party satisfies the tribunal that holding an electronic rather than an oral hearing is likely to cause the party significant prejudice.

18The Tribunal has held that the burden is on the party opposing an electronic hearing to show that it may be significantly prejudiced if the hearing is held by telephone: Pinkney, supra.

19In this case, the respondent employer submits that it will suffer prejudice in the event that the claimant’s physician is permitted to testify via teleconference instead of in person. Specifically, the respondent employer submits that allowing the claimant’s physician to testify via telephone would limit the Tribunal’s ability to assess the physician’s demeanour and thus interfere with the Tribunal’s assessment of the physician’s credibility. In addition, the respondent employer submits that permitting the claimant’s doctor to testify by telephone would significantly interfere with the respondent’s ability to test the case against it since the claimant’s doctor’s “non-verbal responses” to questions may provide valuable insights to the cross-examiner.

20Having carefully considered the matter, I find it to be most fair, just and expeditious to permit the claimant’s doctor to give her evidence in this matter by telephone.

21The thrust of the respondent employer’s submission is that it will be significantly prejudiced if the claimant’s doctor is permitted to testify by telephone because neither it nor the Tribunal will be in a position to observe the witness’ demeanour when she testifies. In my view, this is not a compelling reason to require the physician to testify in person. First of all, demeanour is a notoriously unreliable predictor of the accuracy of evidence given by a witness: Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, and the cases cited therein. Moreover, although the Tribunal and the respondent will not be able to observe the witness’ physical demeanour when she testifies, it will still have an opportunity to observe the witness’ verbal demeanour.

22The most significant factor in my decision to permit the physician to testify by telephone, however, is the nature of her evidence. I agree with the respondent employer that the claimant’s doctor’s evidence relates to a key issue in this case, namely, the nature of the accommodations required by the claimant because of her disability upon returning to work in 2010. In my view, however, the credibility and reliability of the doctor’s evidence on this point will turn on what the doctor says when she testifies as to the medical basis for her conclusions about the claimant’s disability-related needs. I am not persuaded that how the claimant’s doctor physically comports herself during her testimony will assist me in determining the credibility and reliability of her medical evidence. Nor am I persuaded that the respondent employer’s counsel will be impeded in her ability to conduct an effective cross-examination of the claimant’s doctor if she is unable to see her when she testifies.

23In sum, the respondent employer has not satisfied me that permitting the claimant’s doctor to testify by telephone would cause significant prejudice to the respondent employer. Moreover, I am satisfied that, given the nature and extent of the claimant’s doctor’s anticipated testimony, permitting her to testify by telephone is a fair, just and expeditious arrangement in this case.

24The claimant’s doctor will therefore be permitted to testify by telephone at the hearing of this matter. It is anticipated that the claimant’s doctor’s evidence will be heard on July 18 and/or 19, 2012, and will take a couple of hours. However, there is no guarantee that the claimant’s doctor’s evidence will be completed on the above-noted dates or in the anticipated time frame.

25The respondent employer and the applicant should correspond with one another as soon as possible with a view to determining more precisely when the claimant’s doctor ought to be available to give evidence in this matter. If the parties do not object, the Tribunal would be amenable to having other witnesses’ testimony interrupted in order to allow the claimant’s doctor to testify at a set time. In the event that the parties are unable to come to a mutually agreeable arrangement in this regard, either or both of them may write to the Tribunal seeking further direction.

PRODUCTION OF DOCUMENTS

26During the May 30, 2012 teleconference hearing, the respondent employer sought an order from the Tribunal requiring the applicant to produce the following documents:

Medical documents

Any and all documents the claimant’s family doctor intends to refer to or rely upon to provide evidence in this matter, including but not necessarily limited to:

1. any notes of the appointments and/or discussions during which the doctor’s February 2010 notes/medical reports were written;

2. any documents that gave rise to the doctor’s conclusions about the claimant’s work restrictions; and

3. a list of appointments with the family doctor in February 2010, including any telephone appointments/consultations.

Documents relating to mitigation efforts/remedy

1. Ms. Ivanescu’s earnings from July 2010 to the present date.

2. Documentation supporting the Ms. Ivanescu’s search for an alternative position/income from July 2010 to the present date.

3. Documentation outlining the expenses incurred and the purpose of the expenses underlying the assertion on Page 17 of the Application that Ms. Ivanescu was “forced to spend” as a result of the Respondents’ conduct.

4. Documentation supporting Mr. Ivanescu’s claim that he was required to visit an emergency room as a result of the Respondents’ alleged conduct, as outlined at Page 17 of the Application.

5. Documentation supporting Mr. Ivanescu’s assertion that his professional life has been impacted by the Respondents’ conduct, as outlined at Page 17 of the Application.

27In accordance with the agreement of the parties during the teleconference hearing, the applicant had until June 8, 2012 to make written submissions indicating whether he consented to producing the above-noted documents and/or explaining the basis upon which he objects to producing such documents.

28In his June 6, 2012 submissions, the applicant submits that the above-noted documents are not relevant to the issues before me. However, the applicant does not explain the basis for that submission, with one exception. Specifically, the applicant submits that documents relating to the claimant’s earnings from July 2010 onwards may not be relevant because they include documents relating to earnings made in a job that the claimant obtained with another employer in the fall of 2008.

29The applicant submits that dealing with requests for additional documents that “might not be relevant” to this case in advance of the July hearing would shorten the time available to him to prepare for the hearing and thereby decrease his chances of preparing a coherent case. The applicant thus requests that the Tribunal put off dealing with the respondent employer’s production requests until the July hearing, after the applicant has presented his case.

30The exchange of documents prior to the hearing is a critical part of the Tribunal’s process. It ensures that each party fully understands the case to be met and also enables the Tribunal to ensure that the Application may be resolved in a fair, just and expeditious manner. The applicant’s proposal that he be permitted to present his case before the respondents have been provided with all arguably relevant documents is simply not feasible. Among other things, delaying the production of documents until after the applicant has presented his case would prevent the respondents from having timely access to documents that they may need in order to cross-examine the applicant’s witnesses. The respondent employer is entitled to receive arguably relevant documents in advance of the hearing so that it may be prepared to test the applicant’s case when he presents it.

31The issue then is whether the documents sought are arguably relevant to the issues to be determined. The applicant submits that some of the documents might not be relevant to the issues to be determined. That may be. However, the threshold for the production of documents is not actual but arguable relevance. In other words, the documents sought must relate to some fact or issue to be determined by the Tribunal. All of the documents sought by the respondent employer (including documents relating to the claimant’s earnings during the period in respect of which she seeks to be compensated for lost earnings) meet the relatively low threshold of arguable relevance and must be produced by the applicant. Determinations as to any document’s actual relevance will be left to the hearing.

32As for the applicant’s submission that the production of documents ought to be put off so that the applicant can concentrate on preparing his case, I note that the hearing in this matter commenced in April 2012. Moreover, the applicant received notice of the hearing in a letter from the Tribunal dated November 14, 2011. The applicant has therefore already had ample opportunity to prepare his case. In the circumstances, I am not persuaded that delaying the production of arguably relevant documents is warranted in order to give the applicant additional time in which to prepare for the hearing.

33For all of the above reasons, the applicant is directed to produce a copy of the documents sought by the respondent employer to the other parties to the proceeding within 14 days of the date of this Interim Decision.

DECISION REGARDING REMOVAL OF RESPONDENTS AND BIFURCATION

34On May 30, 2012, the Tribunal heard submissions from the parties with respect to whether The Manufacturers Life Insurance Company and/or Acclaim Ability Management ought to be removed as parties to the proceeding, and with respect to whether the hearing ought to be bifurcated. The Tribunal’s decision on those issues will follow separately.

ORDERS

35The Tribunal makes the following orders:

1. Within 14 days of the date of this Interim Decision, the applicant will produce to the respondents and the Tribunal the following documents:

(1) Any and all documents the claimant’s family doctor intends to refer to or rely upon to provide evidence in this matter, including but not necessarily limited to:

(a) any notes of the appointments and/or discussions during which the doctor’s February 2010 notes/medical reports were written;

(b) any documents that gave rise to the doctor’s conclusions about the claimant’s work restrictions; and

(c) a list of appointments with the family doctor in February 2010, including any telephone appointments/consultations.

(2) Ms. Ivanescu’s earnings from July 2010 to the present date.

(3) Documentation supporting the Ms. Ivanescu’s search for an alternative position/income from July 2010 to the present date.

(4) Documentation outlining the expenses incurred and the purpose of the expenses underlying the assertion on Page 17 of the Application that Ms. Ivanescu was “forced to spend” as a result of the Respondents’ conduct.

(5) Documentation supporting Mr. Ivanescu’s claim that he was required to visit an emergency room as a result of the respondents’ alleged conduct, as outlined at Page 17 of the Application.

(6) Documentation supporting Mr. Ivanescu’s assertion that his professional life has been impacted by the Respondents’ conduct, as outlined at Page 17 of the Application.

2. In the event that the applicant wishes to rely on Dr. Raczynska’s February 2010 medical notes/reports as evidence of the applicant’s disability-related need(s) for accommodation, he is required to make Dr. Raczynska available for cross-examination by the respondents. In the event that Dr. Raczynska is not made available for cross-examination, I will not admit her reports into evidence for the truth of their contents or place any weight on their contents.

3. Dr. Raczynska will be permitted to testify by telephone at the hearing of this matter.