J.M. v. St. Joseph’s Health Centre, 2012 HRTO 1398

Human Rights Tribunal of Ontario

B E T W E E N:

J.M. Applicant

-and-

St. Joseph’s Health Centre Respondent

INTERIM DECISION

Adjudicator: Kathleen Martin Date: July 18, 2012 Citation: 2012 HRTO 1398 Indexed as: J.M. v. St. Joseph’s Health Centre

WRITTEN SUBMISSIONS

J.M., Applicant Self-represented

St. Joseph’s Health Centre, Respondent Michelle Warner, Counsel

Introduction

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 on the basis of disability in services.

2The Application arises out of the applicant’s interaction with various medical personnel working at or out of St. Joseph’s Health Centre, a hospital and its mobile crisis unit, on three specific occasions: September 17, 2006, June 7, 2007 and June 1, 2008. Among other things, the applicant alleges that she was discriminated against on the basis of disability when nurses with the mobile crisis unit attended at her home along with the police and refused her request to decline a mental health assessment, threatened her with criminal arrest and harassed her. The applicant also alleged that she was discriminated against by a physician at the hospital, when he reported her to the Ministry of Transportation (“MTO”) because she was suffering from a mental illness. I dismissed the Application against the physician on the basis that it has no reasonable prospect of success (See 2012 HRTO 239, Request for Reconsideration, pending).

3A hearing into the allegations commenced on February 3, 2012 and continued on February 7 and 8, 2012. The hearing resumed on May 31, 2012 to address some production issues and an adjournment request. The hearing is expected to continue on July 24, 2012.

4This Interim Decision addresses two Requests for Order During Proceeding filed by the applicant dated May 23 and July 5, 2012 respectively as well as addressing some remaining production issues that I received oral submissions on at the hearing on May 31, 2012.

Request for Order During Proceeding dated May 23, 2012

5On May 23, 2012, the applicant filed a Request for Order During Proceeding which requested an “amendment/correction” to the Application.

6In the original Application, the applicant alleged that on June 5, 2007, a crisis worker for the mobile crisis unit of the Hospital refused to honour the applicant’s request to leave her home. In addition, the applicant alleged that:

Soon after that visit I called the hospital and asked that the mobile crisis nurses never accompany the police to my home when the police respond to a call in relation to my mental health. However the hospital dismissed my complaint by simply stating that the police were giving them legal permission to attend my home.

7In her Request, the applicant states that this paragraph should follow the June 2008 occurrence set out in the Application and not the 2007 visit referenced and that this clarification is consistent with the evidence she gave. In addition, the applicant states that she should be permitted to rely on the allegation that Ms. Hickey and the respondent refused to honour her request “to have the nurse [not] come to her home or to respond to the Applicant’s concerns promptly and appropriately when the applicant complained about the crisis nurses” as this is an allegation that rose from the facts that developed as the case matured and evidence was tendered in cross-examination.

8The Hospital opposes any amendment at this late stage of the hearing process on the basis of delay and prejudice.

9In considering requests to amend, the Tribunal typically considers factors such as the nature of the amendment, the reasons for the amendment, the stage it is made and whether there would be prejudice to the respondent: Wozenilek v. Guelph 2010 HRTO 99.

10I find it is too late to amend the Application. Subject to reply, the applicant has completed her evidence and the respondent has almost completed its evidence.

11To the extent the applicant seeks a “correction” based on the evidence presented, the applicant can make submissions in closing argument (and the respondent may make any response to the same). In the absence of further direction, I will address any disputes about the scope of the allegations in the decision.

12In this Request, the applicant also outlines some of the “procedural fairness issues” to be discussed at the hearing on May 31, 2012 including the applicant’s position that she was unaware of what third party medical records the respondent was seeking to rely on. This issue was addressed at the May 31, 2012 hearing and confirmed by Case Assessment Direction of that date.

Request for Order During Proceeding filed July 5, 2012

13On July 5, 2012, the applicant made a Request that I decide whether or not I will grant the respondent’s request to file the “questionable third party medical records (medical records compiled by staff that are not affiliated with the respondent) for the truth of their contents” before the next hearing date. The applicant states that if the respondent’s request is granted, the Tribunal should order further disclosure as set out in the Request. In her submissions, the applicant states that I advised the parties on May 31, 2012 that I had not yet decided on whether or not to grant the respondent’s request.

14In fact, I have previously addressed the manner in which the admissibility of medical records will be determined. By Case Assessment Direction dated May 4, 2012, I stated that:

At this stage of the hearing, I see no reason to depart from the approach that has been used from the outset of the hearing. While it has been helpful to clarify the parties” respective positions, I prefer to assess the admission of the additional documents in the course of the evidence still to be given. It would appear from the witness statements of the witnesses still to be called, that it is anticipated that some of the additional records may be referred to in the course of their evidence. I find it preferable to address relevance in the context of the oral evidence being given.

If after the respondent has called its remaining witnesses, hospital records remain which have not been admitted through a witness, the respondent may renew its request and I will consider, after hearing from the parties, whether any further documents are to be admitted.

Any objections to the admission of documents through the remaining witness [sic] will be addressed in the normal course.

15The applicant’s request that I decide the issue now is denied.

16As the applicant has indicated that her request for additional disclosure set out in the Request is premised on the medical documentation being admitted, she may renew her request for additional disclosure if she wishes if the material is admitted.

Requests For Disclosure/Production dated May 14, 2012

17On May 14, 2012, in the course of providing submissions clarifying the applicant’s position on the medical records issue, the applicant requested further disclosure.

18At the hearing on May 31, 2012, the respondent stated that it had produced all existing documentation and/or without conceding relevance, there was no existing documentation that it could produce in respect of the following requested items:

• Dr. Harmantas, Chief of Staff, Notes
• Dr. Duic’s notes, investigative reports and emails in relation to October 8, 2008 meeting,
• Donna Hess’s Notes, investigative reports or emails in regards to discussions she had on Sept 19, 2006
• Dr. Gotlib, Dr. Duic, Nicole Nichoson and Donna Hess’s notes in relation to discussions concerning the Applicant’s future care
• Donna Hess’s notes of April 29, 2008
• Employment record of Dr. Rhee, or any crisis worker that was ever involved with the applicant

19Having regard to the respondent counsel’s representation, the applicant raised no objection in respect of these items and I made no order for production.

20This left two remaining items: CPIC File in relation to the Applicant; and minutes of June 19, 2008 meeting between Ms. Hickey and the Toronto Police. The applicant asks that the Tribunal order that the “Toronto police” (or the Royal Canadian Mounted Police (“RCMP”) in the case of the CPIC file) disclose the information to the applicant. The applicant did not provide notice of her request to the Toronto police or the RCMP.

21With respect to applicant’s rationale, the applicant states that she wants a written affidavit of the information found on CPIC about her so that she can “cross-reference the information with that of Ms. Gove”, who the applicant states testified that she gleaned certain information about the applicant from her review of CPIC. The applicant states that it is important for the Tribunal to determine whether the information was provided by CPIC search or was known already by the nurse at the time she visited the applicant’s home. Similarly, the applicant states that she wants the police to disclose any minutes that they have about a meeting on June 19th because Ms. Hickey, the manager of the mobile crisis intervention team, testified that she discussed the applicant’s concerns at a team meeting with police officers but had no notes of the meeting. The applicant states that the notes “will provide information in regards to what Mrs. Hickey discussed or was told about at the June 1, 2008 allegation…”

22The respondent objects for several reasons including the lateness of the request and its “speculative relevance”.

23As noted above the applicant did not provide notice to the Toronto police or RCMP, which is required prior to considering such a request. However, I do not find it necessary to direct that notice be provided since even if the Toronto police and/or RCMP consented to these requests, I would deny the applicant’s request.

24The applicant appears to be requesting the information to impeach the credibility of witnesses who have already testified on matters that are collateral to the main issues in the Application. At this stage of the hearing it is too late to bring a request of this nature because the witnesses, Ms. Hickey and Ms. Gove, have already testified. I agree with the respondent that to now permit the applicant to adduce additional evidence is prejudicial to the respondent given that the documents now being sought were not put to their witnesses who could comment on those documents should they exist in cross-examination. Further and in any event, given the speculative nature of the requests it is not apparent that either would assist in any material way in determining whether the applicant was discriminated against in the incident that occurred on June 1, 2008. In all the circumstances, the applicant’s request is therefore denied.

25Any other issues raised by the parties prior to the hearing will be addressed orally at the hearing.