HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joanne O’Brien Applicant

-and-

Toronto Transit Commission and Katherine Castillo Respondents

INTERIM DECISION

Adjudicator: Ena Chadha Date: January 23, 2012 Citation: 2012 HRTO 170 Indexed as: O’Brien v. Toronto Transit Commission

INTRODUCTION

1The applicant filed this Application on August 3, 2011, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and reprisal with respect to employment on the basis of disability.

2The Application alleges that the personal respondent, a disability management specialist working for the respondent employer overseeing the applicant’s transitional work program, subjected the applicant to harassment and treated her differently compared to others on modified duties. The applicant alleges that the personal respondent abused her authority by suspending the applicant’s pay, terminating the applicant’s transitional work duties, harassed the applicant while the applicant was on a leave of absence, suggested the applicant take certain medications, made false allegations against about the applicant, spoke to the applicant in a degrading fashion and solicited information about the applicant’s work performance. The Application appears to suggest there may be on-going grievance(s) about some of these matters.

3On December 7, 2011, the Tribunal issued a Notice of Application to the respondent employer and personal respondent. The Notice of Application notified the respondents that they were required to file their Response (Form 2) on or before January 13, 2012.

4On December 19, 2011, counsel for the respondents filed Requests for Order During Proceedings (“Requests”). The respondents request that the Tribunal 1.) permit the respondents to have access, use and disclosure of the applicant’s Occupational Health and Claims Management file (“applicant’s health files”) as maintained by the respondent employer, 2.) permit the respondents to review and/or disclose the applicant’s health files with individuals who will provide instruction for purposes of responding to the Application and individuals who are anticipated to be witnesses, and 3.) grant an extension of the deadline to file their Response of at least 35 days from the date the Tribunal issues its order with respect to these Requests.

Respondents’ Position

5The respondents state that the applicant’s allegations pertain to her disability accommodation and the manner in which she was treated by the respondents in handling her accommodation. The respondents argue that the majority of the documents relating to these matters are contained in the applicant’s health files and that it is necessary to review these materials in order to respond to the applicant’s allegations. The respondents submit that counsel, instructing parties and witnesses must be able to review the applicant’s health files and, therefore, ask the Tribunal to authorize access, use, and/or disclosure of the applicant’s health files for the purposes of responding to the Application.

6The respondents submit that Tribunal authorization is necessary because there may be a conflict with respect to privacy standards required by applicable legislation. The respondents indicate that the expectations and protections under the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A (“PHIPA”), for health information custodians regarding disclosure may be different from the duty imposed on employers by the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”).

7The respondents reference some Tribunal jurisprudence that has allowed health information custodians to use or disclose personal health information for the purpose of preparing a Response to an Application. See Basic v. Royal Health Care Centre, 2009 HRTO 1834, and Hunter v. North Halton Mental Health Clinic, 2010 HRTO 750. The respondents also point out that similar orders as requested in the present case have been issued by the Tribunal in other applications. See Johnston v. Toronto Transit Commission, 2011 HRTO 923, and Power v. Toronto Transit Commission, 2011 HRTO 1462.

Applicant’s Position

8The applicant opposes the respondents’ requests. The applicant asks that the Requests be dealt with through an in-person hearing because, from the applicant’s perspective, the respondents have a tendency to use written documents to confuse and delay proceedings.

Process

9While I understand the applicant’s desire for an in-person hearing in order to ensure that issues are not obfuscated, I note that the Tribunal’s Rules of Procedure provides the Tribunal with discretion to determine how a matter will be dealt with. In my view, an in-person hearing is not necessary to deal with this preliminary issue and a written process is the speedier way of addressing the Requests. Previous Tribunal decisions have determined issues of this nature based only on parties’ written submissions.

ANALYSIS OF REQUEST TO ACCESS APPLICANT’S HEALTH FILES

10It is well-established that a party seeking production of information must demonstrate that information is “arguably relevant” to the proceeding. In McKay v. Toronto Police Service Board, 2009 HRTO 1220, the Tribunal held that in order to establish “arguable relevance” there must be a nexus between the sought-after material(s) and the subject-matter of the application. The Tribunal described the analytical approach to assessing “arguable relevance” as follows, at paragraph 13:

The first step in determining what is relevant is the identification of the cause of action’s facts and the surrounding substantive law: Neusch, supra. A nexus may be established if the sought-after information goes to prove or disprove a fact or issue in dispute or provides an inferential link to support a theory of the case or line of defence. If the materials sought meet this threshold standard of “arguable relevance”, the Tribunal must next consider whether there any other issues or concerns, such as privilege or privacy, which may require a determination of terms and conditions upon which production may be ordered. Further, a finding that a document is arguably relevant for production does not mean that such information will necessarily be admissible as evidence at the hearing on the merits.

11With respect to the first step, it would appear that the applicant does not dispute arguable relevance. The applicant seems to acknowledge that her health conditions and accommodation needs are relevant to the allegations and issues raised in the Application. In response to Questions 16 and 17 of the Application Form 1, which inquire about important documents possessed by the parties, the applicant expressly indicates that her “medical notes substantiate [her] complaint” and that her medical files have information regarding the alleged interactions. Furthermore, the applicant’s narrative identifies her physician and indicates that this doctor has corroborating information.

12Although “arguable relevance” is not a high onus for the requesting party to satisfy, documents that meet the “arguable relevance” threshold may not be disclosed or may be subjected to limited disclosure if there are extenuating circumstances, such as privilege claims or privacy concerns that need reconciliation or protection. As stated by the Tribunal in Lampi v. Princess House Products Inc., 2008 HRTO 1, “(d)ocuments which are arguably relevant may nevertheless not be ordered disclosed if they are privileged, the probative value is outweighed by potential prejudice to the party producing them, or if the timing of the request risks derailing a just and expeditious hearing” at paragraph 10. The Tribunal must consider, as recognized in McKay, whether fairness in the circumstances requires that production be subject to certain limitations, terms or conditions, in particular to address such matters as privilege or confidentiality.

13I find that the applicant’s health files which underlie the events described in the Application are arguably relevant to the factual and legal issues in dispute, namely the nature of the applicant’s accommodation and the propriety of the personal respondent’s interactions with the applicant and the applicant’s physician. Although I accept the applicant’s health files have some probative value to the facts and issues in this case, given the absence of any specific timeline for the documents being requested, I am concerned that the respondents are seeking access to all of the applicant’s health files. The applicant indicates that she has been employed by the respondent organization for over six years. The temporal scope of the health files maintained by the occupational health and claims management office is unclear and, in light of the applicant’s length of employment, it is possible that the applicant’s health files could potentially reference health and claims issues unconnected to the events alleged in this Application.

14I find that a fair, just and expeditious resolution of the issues favours limited disclosure at this stage of the proceeding. I determine that the information in the applicant’s health files that pertain only to the specific period of time identified in the applicant’s narrative (January 2009 and onwards) is arguably relevant and necessary for the purposes of preparing a Response. Should the respondents require additional disclosure of a more expanded temporal scope, such a request can be made and the basis for such a request explained after filing their Response.

15In the interests of fairness and expeditiousness in the specific circumstances of this case, the Tribunal orders the following:

i. The respondents are granted disclosure and access to the applicant’s health files from January 2009 onwards;

ii. The respondents’ advisors, instructors and potential witnesses (in relation to information contained in the applicant’s health files) are the only individuals permitted to access and use the applicant’s health files as identified in (i);

iii. The respondents’ requests for an extension of time are granted. The respondents are required to file their Response within 35 days from the date of this Interim Decision; and

iv. Since the Application appears to suggest there may be an ongoing grievance(s) about some of these matters, the respondents are also required to provide any information as to the nature and status of any outstanding workplace grievance(s) filed on behalf of the applicant.

16I am not seized of this matter.

Dated at Toronto, this 23rd day of January, 2012.

“Signed by”

__________________________________

Ena Chadha Vice-chair