Humphrey v. Toronto Rehabilitation Institute, 2012 HRTO 1494

Human Rights Tribunal of Ontario

BETWEEN:

John K. Humphrey Applicant

-and-

Toronto Rehabilitation Institute Respondent

INTERIM DECISION

Adjudicator: Alan G. Smith Date: July 31, 2012 Citation: 2012 HRTO 1494 Indexed as: Humphrey v. Toronto Rehabilitation Institute

Written Submissions

John K. Humphrey, Applicant Self Represented

Toronto Rehabilitation Institute, Respondent Michele M. Warner, Counsel

Background

1This is an Application filed August 14, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of age and disability. The respondent filed a Response on December 16, 2009, denying any Code-related discrimination.

2This Interim Decision addresses a Request for an Order during Proceedings (“Request”) from the respondent seeking production of documents from the applicant pursuant to Tribunal Rule 16. In particular the respondent asks the applicant to provide:

1. A copy of the document that was submitted as an attachment to the “Request for Service” that was submitted to the respondent on July 1, 2008;
2. A copy of the application that was submitted on the applicant’s behalf to the Ministry of Health and Long Term Care (“MOHLTC”) in May 2008 requesting funding for out-of-province service, including the attached medical documentation;
3. A copy of the letter from the MOHLTC to the applicant’s doctor dated May 13, 2008, denying the applicant’s request for out-of-province funding;
4. A copy of the second application submitted by the applicant to the MOHLTC on July 31, 2008, after being denied treatment by the respondent;
5. A copy of any application for appeal made by the applicant to the Health Services Appeal and Review Board regarding the MOHLTC’s decision to deny funding for the rehabilitation services the applicant sought;
6. A copy of any decision rendered with regard to the applicant by the Health Services Appeal and Review Board with regard to the denial of funding for the rehabilitation services the applicant sought;
7. A copy of the application submitted to the Assistive Device Program of the MOHLTC by the applicant with regard to the orthotic device the applicant sought;
8. Any other documentation regarding funding requests to other organizations with regard to the rehabilitative treatment sought by the applicant.

3In support of the Request, the respondent notes that the Application contains the key allegation that the respondent was providing the particular rehabilitative service sought by the applicant at the time in question. This assertion is denied by the respondent. In his Application, the applicant appears to at least partially rely upon his correspondence with the MOHLTC as proof of his allegation. The respondent therefore argues that:

The hospital submits that a full understanding of Mr. Humphrey’s communications with the MOHLTC, including what the MOHLTC conveyed about its requirements for out-of-country funding (in particular, what if anything it needed to see from Toronto Rehab), is therefore relevant to Mr. Humphrey’s allegations.

4On July 16, 2012, the applicant filed a Response to the Request contesting the Order requested. In his submissions the applicant advised that:

The applicant, John Humphrey, is not in possession of the documents requested by the respondent in this Order, and Mr. Humphrey further contends that the documents requested are not relevant to this application…

This application…is not about OHIP and their decision to deny the application of John Humphrey for out-of-province coverage for therapy at the Rehabilitation Institute of Michigan in Detroit, Michigan. This application is about the denying of therapy services for Mr. Humphrey by the Toronto Rehabilitation Institute.

Analysis

5Rule 16 of the Tribunal's Rules of Procedure states as follows:

16.1 Not later than 21 days after the Tribunal sends a Confirmation of Hearing to the parties, each party must deliver to every other party (and file a Statement of Delivery):

a) a list of all arguably relevant documents in their possession. Where a privilege is claimed over any document the party must describe the nature of the document and the reason for making the claim; and,

b) a copy of each document contained on the list, excluding any documents for which privilege is claimed.

16.2 Unless otherwise ordered by the Tribunal, not later than (forty-five) 45 days prior to the first scheduled day of hearing, each party must deliver to every other party (and file a Statement of Delivery):

a) a list of documents upon which the party intends to rely; and

b) a copy of each document on the list or confirmation that each document has already been provided to the other parties in accordance with Rule 16.1.

16.3 Unless otherwise ordered by the Tribunal, not later than (forty-five) 45 days prior to the first scheduled day of hearing, each party must file with the Tribunal:

a) a list of documents upon which the party intends to rely; and

b) a copy of each document contained on the list.

16.4 No party may rely on or present any document not included on a document list and provided to other parties in accordance with Rule 16.1 and 16.2, and filed with the Tribunal under Rule 16.3, except with the permission of the Tribunal.

Rule 5.6 states:

Where a party fails to deliver material to another party or person as required by these Rules, the Tribunal may refuse to consider the material, or may take any other action it considers appropriate.

6The standard for disclosure of documents in a human rights proceeding is “arguable relevance”. It has been stated that this is not a particularly high bar, although there must be some relevance and the party seeking production must demonstrate a “nexus” or connection between the information or document sought and issues in dispute before the Tribunal. See Goodale v. Assured Parkway Collision, 2010 HRTO 1814.

7I agree with the respondent that the requested documents appear to be relevant to the issue of whether or not the respondent offered the services requested by the applicant. I also note that the reasons for denial of funding by the MOHLTC (especially with regard to the Rehabilitation Institute of Michigan) appear to be clearly relevant to the issue of the compensation sought by the applicant.

8With regard to the applicant’s assertion that he is not in possession of the documents requested by the respondent, I note that his original list of arguably relevant documents filed on April 16, 2012, included at least partial copies of many of the documents requested by the respondent.

Order

9Accordingly, the Tribunal orders as follows:

a. The documents sought in the Request are arguably relevant to this proceedings;

b. the applicant, within seven calendar days of the date of this Interim Decision, is to make a diligent search of his records and to provide copies of any documents requested by the respondent in the Request, which is in his possession. Copies of the documents, along with a Statement of Delivery (Form 23) should also be provided to the Tribunal;

c. The parties should be prepared to address any outstanding production issues at the commencement of the hearing.