HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Daniel Parsons
Applicant
-and-
Simcoe County District School Board
Respondent
INTERIM DECISION
Adjudicator: Brian Cook
Indexed as: Parsons v. Simcoe County District School Board
APPEARANCES
Daniel Parsons, Applicant
Self-represented
Simcoe County District School Board, Respondent
John Paul Alexandrowicz, Counsel
Introduction
1This Interim Decision follows a case management telephone conference call hearing on August 3, 2012. The conference call was scheduled to hear oral submission on various Requests that the parties have filed since Interim Decision 2012 HRTO 985. This earlier Interim Decision ordered that a two day hearing be scheduled for this Application.
2The Application was filed on July 21, 2010. At that time, the applicant was on a medical leave since March 2010. In the Application he alleged that the respondent failed to accommodate him to allow him to return to work.
3The respondent filed a Response in which it denied the allegations and provided background information about the events prior to the applicant’s medical leave. These relate to issues that arose between the applicant and co-workers starting in 2008. The applicant alleged that two co-workers were harassing him. They alleged that the applicant was harassing them. The allegations were investigated and a discipline letter was issued to the applicant. Following this, the applicant went on the medical leave. In the Response, the respondent says that the applicant did not provide adequate medical information to allow the respondent to assess his accommodation requests. The respondent further submits that it nevertheless accommodated the applicant appropriately.
Removal of the personal respondent
4The organizational respondent asks that the personal respondent be removed as a respondent to the Application. The respondent refers to Persaud v. Toronto District School Board 2008 HRTO 31, which suggested that the following factors are among those that should be considered when determining a request to remove a personal respondent:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?
Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?
Would any prejudice be caused to any party as a result of removing the personal respondent?
5The respondent also refer to Sigrist and Carson v. London District School Board, 2008 HRTO 31, in which the Tribunal indicated that the primary focus should be on whether the actions of the personal respondent which the applicant alleges were discriminatory were done in the course of the personal respondent’s normal employment, or whether the alleged conduct is such that it would be appropriate for the Tribunal to make an order against the personal respondent if the allegations are found to be true.
6In this case, the applicant did not indicate that he was seeking an order against the personal respondent in the Application. He has subsequently indicated that he would like an order that the personal respondent undergo training so as to better understand how to manage requests for accommodation.
7If appropriate, the Tribunal can direct the organizational respondent (in this case the School Board) to ensure training of any employee of the organizational respondent, whether or not the employee is named as a personal respondent in the Application.
8Mr. Alexandrowicz confirmed that the personal respondent will be available as a witness in the hearing of this matter. He also confirmed that the organizational respondent accepts full liability for the conduct of the personal respondent.
9I find that there is no compelling reason to continue the Application as against the personal respondent. She is removed as a respondent and the style of cause is amended accordingly.
Adjournment request and request for accommodation at the hearing
10In an earlier Case Assessment Direction, I directed that the Tribunal would schedule a two-day hearing to hear evidence from the applicant.
11The Tribunal scheduled a two-day hearing for January 3 and 4, 2013. The Notice of Confirmation of Hearing was sent on May 23, 2012.
12On June 19, 2012, respondent’s counsel sent a letter to the Tribunal asking that the hearing be re-scheduled because he and the instructing representative of the respondent will both be out of the country on the scheduled dates. Mr. Alexandrowicz advised that the parties had been unable to agree on alternate dates and proposed five alternate dates in January and February 2013.
13The applicant sent a letter dated June 20, 2012, opposing the re-scheduling request. He indicated that he is concerned about further delay in a matter that has already been going on for some time. He also indicated that he will lose pay from work if he has to attend on any of the hearing dates proposed by the respondent.
14During the conference call the applicant re-iterated his objection to the re-scheduling request. He said that his primary objection is that the January 4 and 5 dates are dates when he would not be scheduled to work and so there would be no pay consequence for him. If the hearing is re-scheduled during a regular school day he will have to take an unpaid day in order to attend. The applicant advised that he had made the same objection to dates that the Tribunal proposed in November 2012.
15The Tribunal’s Notice of Confirmation of Hearing indicates that parties are to make a request for adjournment of a scheduled hearing within fourteen days of the Notice. However, it also indicates that parties are strongly encouraged to provide mutually agreeable dates with the adjournment request. The respondent’s request for re-scheduling was sent on June 19, 2012, more than fourteen days after the May 23, 2012 Notice of Confirmation of Hearing. However, it appears that Mr. Alexandrowicz promptly addressed the re-scheduling matter and that the delay was caused by unsuccessful attempts to find mutually agreeable dates.
16I appreciate the applicant’s preference that the hearing be held on dates that are not regular school days so that he will not lose pay by attending. However, in my view, the respondent have provided a legitimate reason for the adjournment request. Noting the history of this matter, I agree with the respondent that it would be difficult for other counsel and resource/instructing representatives to take over so that the hearing could proceed on January 3 and 4, 2013. I find that this constitutes exceptional circumstances that would warrant a short adjournment of the previously scheduled dates in order to reschedule them on dates where counsel is available.
17The request for an adjournment is therefore granted.
18The applicant has asked that the hearings not be scheduled on consecutive days and that consideration be given to shorter hearing times. He indicates that this will allow him to better concentrate on the proceedings and to fully participate. The applicant notes that it will take him several hours to get to the hearing location in Toronto. The respondent do not object to the applicant’s request.
19During the telephone conference call both parties confirmed that they are available on January 17 and 24, 2013. They also mutually agreed to a start time of 10:30 am. It was also agreed that any concerns about the applicant’s ability to fully engage in the process will be monitored and that it is not necessary to agree on an end time for the hearing days at this time.
Events and Allegations prior to March 2010
20Documents and submissions filed by both parties refer to events and allegations prior to March 2010. This is understandable as the events prior to March 2010 are the background to the events and allegations post-March 2010. Both parties have raised objections about each other’s documents as they relate to pre-March 2010 events.
21Earlier in the processing of this Application, the applicant had indicated that he wanted to put the pre-March 2010 events into issue in this Application and to add allegations of harassment and discrimination with respect to those events. However, he subsequently withdrew the request to amend the Application to include pre-March 2010 events.
22During the telephone conference call both parties confirmed that the issue in this case is whether the respondent discriminated against the applicant contrary to the Code by failing to provide reasonable accommodation subsequent to March 2010.
23On this basis, I find that it is not necessary at this time to make any further direction about documents already filed by the parties as they relate to the pre-March 2010 events or to consider any order about production of further documents relating to those events.
Request for Disclosure of Medical Records
24The respondent filed a Request for Order During Proceedings on July 18, 2012 seeking, among other things, disclosure of medical records. The respondent seeks disclosure of medical records regarding a number of medical conditions.
25The respondent seeks such documentation from a number of healthcare practitioner and support workers who the applicant consulted during the period from January 2006 to present.
26The applicant opposes the request for disclosure of his medical records. He submits that the respondent’s request for disclosure it far too wide. He is also concerned about what might happen to the records if they are disclosed, given that because he has an ongoing employment relationship with the respondent.
27In the conference call Mr. Alexandrowicz advised that the respondent would not object to any appropriate order from the Tribunal to ensure that the documents are kept confidential and used only for the purpose of the hearing in this matter.
28Documents about a person’s medical condition are inherently personal in nature and may contain sensitive information. Disclosure to a respondent of an applicant’s medical history can be particularly problematic where, as in this case, there is an going employment relationship between the parties. This Tribunal has generally tried to balance this with the respondent’s right to access relevant documents that may be important in preparing the respondent’s response to the applicant’s allegations (see, for example, G.A. v. York Region District School Board, 2011 HRTO 2110; McEwan v. Commercial Bakeries Corporation, 2004 HRTO 13; Lampi v. Princess House Products Canada Inc., 2008 HRTO 1).
29As discussed during the telephone conference call and as noted below, there are a number of procedural issues raised by the parties which are difficult for me to assess at this stage of the proceedings when I have not heard any evidence.
30The issue in this case is whether the respondent discriminated against the applicant because of disability contrary to the Code by failing to provide reasonable accommodation subsequent to March 2010. The focus will be on whether the parties each acted reasonably and appropriately in regard to their mutual accommodation obligations.
31At this stage of the proceedings, I am not convinced that the disclosure of the medical records sought by the respondent is necessary. It has been determined that the hearing will proceed in January with the applicant’s evidence. After I have heard the applicant’s evidence, I will be in a better position to determine whether further disclosure of medical records is necessary, and what restrictions may be appropriate in regard to that disclosure. As discussed during the conference call, the respondent will have the right to ask that the applicant be recalled to cross-examine him further in the event that medical reports are later disclosed.
Audio Recordings
32The applicant wishes to rely on audio recordings he made of two meetings that occurred in January 2011 and June 2010 respectively. He submits that the recordings will provide proof of discrimination. The respondent objects, alleging that the recordings were made surreptitiously and without consent. The respondent suggest that the meetings may have been privileged as the meeting in January 2011 included discussions with the applicant’s union representatives.
33The determination of the admissibility of the audio recordings is another issue that I intend to defer until I have heard at least the evidence of the applicant.
ORDERS
34The respondent’s request for an adjournment is granted. The hearing scheduled for January 3 and 4, 2013, is cancelled. The Tribunal will schedule a hearing for January 17, 2013, commencing at 10:30 am and a second day of hearing for January 24, 2013, also at 10:30 am.
35The respondent’s request for further disclosure of the applicant’s medical records is denied at this time. The request may be renewed at a later stage in the proceedings. The respondent may request that the applicant be recalled to testify if relevant medical records are disclosed after the applicant gives his evidence on January 17 and 24, 2013.
36The respondent’s request to remove the personal respondent is granted. The style of cause is accordingly amended.
37A determination of the admissibility of audio recordings and pre-March 2010 documents is deferred to the hearing of the Application.
38I am seized of this matter.
Dated at Toronto, this 9^th^ day of August, 2012.
“Signed by”
Brian Cook
Vice-chair