Drost v. Ottawa-Carleton District School Board, 2012 HRTO 235

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Valerie Drost

Applicant

-and-

Ottawa-Carleton District School Board

Respondent

A N D B E T W E E N:

Valerie Drost

Applicant

-and-

Ottawa-Carleton District School Board

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty Date: February 2, 2011 Citation: 2012 HRTO 235 Indexed as: Drost v. Ottawa-Carleton District School Board

Written submissions

Valerie Drost, Applicant ) On her own behalf

Ottawa-Carleton District School Board, Respondent ) Roger Mills, ) Counsel

1The purpose of this Interim Decision is to determine the respondent’s Request for an Order During Proceedings (“Request”) for production of medical documents related to the applicant’s alleged environmental sensitivities.

2For the reasons that follow, the Request is granted. The applicant is required to produce the medical documents sought by the respondent,. They are highly relevant to the issues in dispute in these Applications, namely whether the applicant has a disability and what, if any, accommodation measures she requires.

OVERVIEW OF PROCEEDINGS

3The applicant filed two Applications under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) alleging discrimination in her employment with the respondents, on the basis of disability. She also alleges reprisal or threat of reprisal. In essence, the applicant alleges that the respondent failed to accommodate her environmental sensitivities.

4The matters have been consolidated: 2011 HRTO 2258. They are scheduled for hearing on February 13, 14, and 15, 2012.

5On January 16, 2012, the respondent filed a Request seeking production of the following documents:

a. All clinical notes and records of Dr. Stephen Evans relating to his diagnosis and treatment of the applicant’s alleged environmental sensitivities;

b. All clinical notes and records of Dr. Ross Mickelson relating to his diagnosis and treatment of the applicant’s alleged environmental sensitivities;

c. All notes, test results, assessments, and reports of Toronto St Michael’s Hospital relating to the diagnosis and treatment of the applicant’s alleged environmental sensitivities; and

d. Any and all other relevant or arguably relevant medical documents, including clinical notes, assessments, and proposed treatment of the applicant’s alleged sensitivities.

6The respondent states that it received the applicant’s hearing documents and a list of her proposed witnesses in late December, 2011. These documents included medical notes prepared by Drs. Evans and Mickelson, as well as a functional abilities form completed by Dr. Evans. The applicant also proposed to call both physicians as witnesses.

7The respondent states that it began communicating with the applicant in early January 2012 to obtain production of the documents listed in para. 5 and/or her consent to obtain them. The applicant did not respond to the respondent’s correspondence. The respondent has filed copies of counsel’s correspondence to the applicant along with the Request.

8The respondent states that the applicant has also made claims before the Workplace Safety and Insurance Bureau (“WSIB”) regarding alleged incidents of exposure to chemicals in the workplace. The respondent received correspondence from the WSIB indicating that the applicant underwent medical testing at St Michael’s Hospital (“Hospital”) and that no evidence of immunological hypersensitivy or chemical toxicity was found.

9The respondent argues that the documents identified in the Request are relevant to the issues raised in the Application, in particular to the applicant’s allegation that she has environmental sensitivities that require accommodation.

10The applicant has filed a Response in which she objects to the Request, at least in part. The applicant does state that, provided the respondent assumes the cost of doing so, she is prepared to request copies of the medical notes from Drs. Evans and Michelson’s offices and give the respondent an opportunity to compare these to the documents already provided.

ANALYSIS

11Rule 16 of the Tribunal’s Rules of Procedure set out the parties’ obligation to disclose arguably relevant documents. It states:

RULE 16 DISCLOSURE OF DOCUMENTS

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 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 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.

12The basic principle is that materials that are “arguably relevant” to the issues in dispute in the proceeding must generally be produced. As noted in Lampi v. Princess House Products Canada Inc., 2008 HRTO 1, 2009 HRTO 217, this is a relatively low threshold for the requesting party to meet.

13There appears to be a dispute as to whether the applicant was disabled at the material times. If the applicant was disabled, there is also a dispute as to the nature of her disability and the accommodation, if any, that she required. In these circumstances, I have no difficulty concluding that the medical documents sought by the respondent are arguably relevant to these issues.

14Most of the applicant’s objections to the Request relate to the documents in the Hospital’s possession. Based on the materials before me, it appears that the Hospital documents contradict the applicant’s treating physicians’ diagnosis of environmental sensitivities. This information is highly relevant to this proceeding.

15The applicant has questioned the objectivity, reliability, and accuracy of the Hospital documents. In considering a request for production, beyond determining whether a document is arguably relevant to the issues raised in the Application, the Tribunal does not inquire as to the accuracy of the documents or the circumstances in which they were prepared. These arguments may be raised at the hearing and may be relevant in determining whether the documents are admissible and what, if any, weight they should be given. However, they have no bearing on my determination of the arguable relevance of the documents requested.

16Similarly, the applicant’s arguments regarding the timing of the Hospital’s assessment, while possibly relevant to the admissibility and weight of the evidence at the hearing, do not affect my decision regarding their arguable relevance. Based on the WSIB letters, it appears that the medical assessment at the Hospital was conducted for the purpose of determining the impact of the applicant’s potential exposure to chemicals during the 2008 - 2009 school year: a time period also at issue in the Applications. I make no finding as to whether the Hospital documents are admissible at the hearing, however I conclude that they meet the threshold for arguable relevance and must be disclosed.

17I do not accept the applicant’s argument that the Request is untimely. First, the applicant has an ongoing obligation to disclose the arguably relevant documents in her possession. This obligation exists irrespective of any requests for production by the respondent and, to the extent that her medical documents are arguably relevant, it falls to the applicant to obtain and disclose them. Second, based on the information before me, which has not been contradicted by the applicant, the respondent repeatedly asked the applicant for copies of her medical documents and did not obtain a response. In these circumstances, the applicant has some share of responsibility for any delay in the filing of the Request.

18The applicant argues that the respondent should be prevented from relying on a letter from the WSIB because it was sent to the respondent in error and ought not to have been copied. To the extent that either party seeks to admit this document into evidence, this argument may be raised at the hearing. I do not believe it has any bearing on my conclusions that the medical documents sought are arguably relevant and must be produced. The applicant states that the respondent (or a third party it hired to assist with accommodation measures) already has the documents it is seeking. She also states that the respondent should be precluded from relying on these documents because it has not included them in its list of hearing documents.

19The respondent states that it cannot obtain copies of the Hospital documents without the applicant’s consent. While I am satisfied that the respondent has copies of certain medical notes, it is not clear to me that it has received the Hospital documents or copies of the physicians’ clinical notes and records. It may be that these documents are in the possession of the third party accommodation consultant and have not been or could not be disclosed to the respondent. In any event, if the respondent has copies of the documents at issue, there is no prejudice to the applicant in ordering their disclosure. Any issues concerning the admissibility of the documents as evidence will be dealt with at the hearing.

20Finally, the applicant argues that the Request for medical documentation is too broad. While parties before the Tribunal have a general duty to disclose materials that are arguably relevant, I am mindful that the applicant has a privacy interest in her personal, medical information. See McEwan v. Commercial Bakeries Corporation, 2004 HRTO 13 and Lampi, supra.

21In my view, however the scope of the requested disclosure is appropriate and achieves this balance. The Request relates only to documents concerning the applicant’s alleged chemical sensitivity, its diagnosis, and treatment. As I understand it from the materials filed by both parties, the applicant’s diagnosis occurred sometime in late 2008: the period in time at issue in these Applications. The Request is not, as the applicant suggests, so broad as to include a requirement to disclose her long-term medical history.

DECISION

22For the above reasons, the applicant is ordered to disclose to the respondent a copy of the following:

a. All clinical notes and records of Dr. Stephen Evans relating to his diagnosis and treatment of the applicant’s alleged environmental sensitivities;

b. All clinical notes and records of Dr. Ross Mickelson relating to his diagnosis and treatment of the applicant’s alleged environmental sensitivities;

c. All notes, test results, assessments, and reports of Toronto St Michael’s Hospital relating to the diagnosis and treatment of the applicant’s alleged environmental sensitivities; and

d. Any and all other arguably relevant medical documents, including clinical notes, assessments, and proposed treatment of the applicant’s alleged environmental sensitivities.

23Within one week of this Interim Decision, the applicant must deliver copies of the documents, identified in para 22, above, to the respondent. If the applicant is unable to obtain copies of these documents within one week, she must deliver to the respondent and file with the Tribunal written submissions explaining what steps she has taken to obtain the documents and when she expects to be able to provide them to the respondent.

24In her Response to the Request, the applicant suggests that the respondent should bear the cost of obtaining the documents it has requested. In my view, it is not appropriate to make any such order and there is no basis for doing so under the Code or the Tribunal’s Rules of Procedure. The applicant must bear any cost associated with obtaining and disclosing the documents listed above.

Dated at Toronto, this 2nd day of February, 2012.

”signed by”__________________

Michelle Flaherty

Vice-chair