Andres v. The Co-operators General Insurance Company, 2012 HRTO 194

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eudelyn Prudente Andres

Applicant

-and-

The Co-operators General Insurance Company and Sheri Epoch

Respondents

interim decision

Adjudicator: Keith Brennenstuhl

Date: January 26, 2012

Citation: 2012 HRTO 194

Indexed as: Andres v. The Co-operators General Insurance Company

APPEARANCES

Eudelyn Prudente Andres, Applicant ) Amer Mushtaq, Counsel

The Co-operators General Insurance )

Company and Sheri Epoch, Respondent ) Howard Levitt, Counsel )

1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) alleging discrimination in employment on the basis of disability and race.

2The purpose of this Interim Decision is to deal with the respondents’ request for production.

3In accordance with the Tribunal’s Rules of Procedure, the parties made disclosure and filed witness statements of the witnesses they intend to call for the hearing.

4This Interim Decision is based on oral submissions made by the parties at the commencement of the hearing which took place on December 1, 2011 as well as written submissions filed by the parties having regard to the Application, the Response, the Reply, disclosed documents and the will say statements filed by the parties.

5The respondents are seeking production of the medical documentation as well as correspondence which the applicant provided to Co-operators Life Company (“CLC”) to support her accommodation requests and for verification of her disability. The respondent submits that CLC was its third-party disability management company which was used to administer the respondent’s disability programs. In keeping with the confidentiality surrounding all medical documentation and information collected by CLC for the purpose of administrating the disability programs, CLC cannot release such information to the respondents or otherwise without the applicant’s consent, or an order from the Tribunal. The respondent claims that as a result it has never had access to the totality of the medical documentation and records upon which the applicant based her accommodation requests.

6The applicant submits that the respondents had no access to the applicant’s medical file with CLC at the time they considered the applicant’s accommodation requests and that they made their decisions respecting the applicant’s accommodation request solely on the advice they had received from CLC at that time. Since the applicant’s file with CLC was not available to the respondents at that time, the applicant argues that it would serve no purpose to presently allow the respondents access to the applicant’s medical file with CLC. In addition the applicant expresses concern that the applicant’s file with CLC also relates to her claim for Long Term Disability, which is not a matter before the Tribunal.

7The test for disclosure of documentation is arguable relevance, which is not a particularly high threshold (see Lampi v. Princess House Products Canada Inc. 2008 HRTO 1.)

8In my opinion the medical documentation that was provided to CLC is arguably relevant in that the applicant relies on that documentation to support her accommodation requests. In my view, in evaluating the merits of the applicant’s accommodation requests, it is critical that the Tribunal has access to that documentation. Indeed, the Tribunal may draw appropriate inferences from the applicant’s failure to provide such medical information.

9The applicant has expressed concern that the applicant’s file with CLC also relates to her claim for Long Term Disability and that the disclosure of this documentation would not be proper given that the matter is not before the Tribunal. I do not necessarily agree. The applicant is seeking substantial damages. It may well be that the applicant’s Long Term Disability may have an impact on the quantum of damages if liability is found. However, as the parties have agreed that the hearing should be bifurcated, to hear the issue of liability first and separately from the issue of damages, I defer making any decision with respect to the disclosure of Long Term Disability documentation in the possession of CLC until after the liability issue has been determined.

ORDER

10The applicant is required to provide to the respondent and file with the Tribunal the following documents within 45 days of the date of this Interim Decision:

Copies of all medical documentation including but not limited to, all medical notes, medical letters, medical reports, functional abilities forms and/or disability-related documents in her possession or control or in the possession of CLC which she provided to CLC for the purposes of verifying her alleged disability and substantiating her accommodation requests.

11This order is subject to paragraph 9 above.

12The applicant shall be given five business days from the date of this Interim Decision to advise the respondents and the Tribunal by email whether she now consents to CLC releasing these documents. If she consents, she can sign the appropriate consent form and provide it to CLC.

13If the applicant does not consent or does not respond within this time period, then the respondents should send a copy of this Interim Decision to CLC and the Tribunal will schedule a conference call with the parties and CLC and hear submissions with respect to the Tribunal ordering CLC to provide the documentation and information requested by the respondent.