Elliott v. Showa Canada, 2012 HRTO 570

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kimberly Elliott

Applicant

-and-

Showa Canada Inc.

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: March 19, 2012

Citation: 2012 HRTO 570

Indexed as: Elliott v. Showa Canada

wRITTEN SUBMISSIONS

Kimberly Elliott, Applicant ) Self-represented

Showa Canada Inc, Respondent ) Dan Black, Counsel

1This is an Application filed 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.

2The respondent has not yet filed a Response to the Application, rather the respondent delivered and filed a Request for Order During Proceeding (Request) seeking the following:

1. An Order requiring the Applicant (or, alternatively, the Ontario Workplace Safety and Insurance Board (the "WSIB")) to disclose the Applicant's complete WSIB claim file before the respondent is required to file its Form 2 Response to the Application;

2. An Order requiring the Applicant to consent to Showa disclosing to the Tribunal, in Showa's Form 2 Response to the Application, information and documents included in the Applicant's WSIB claim file; and

3. An Order extending the time limit for the respondent to file its Form 2 Response until 30 days after the date on which Showa's legal counsel receives the Applicant's complete WSIB claim file.

3The respondent makes this Request on the basis that the documents are arguably relevant to the issues in dispute in the Application, and more specifically, it argues that these documents are required in order for it to make a full Response to the allegations in the Application.

4The applicant states her WSIB claim file contains information that is not relevant to the issues in the Application and states that some of the information would be considered sensitive, confidential, private, privileged and may contain third party information.

5The applicant states that she has ongoing issues with the WSIB which she is pursuing in various avenues, including the Premier and the Ombudsman of Ontario and disclosure of these documents would be detrimental to her ongoing rights, issues and concerns before the WSIB and any appeals stages followed by the courts.

6Despite the applicant’s assertions that the production of her WSIB claim file would be detrimental to her rights in other proceedings, I am satisfied that it would be the most fair, just and expeditious manner of proceeding that the Orders requested by the respondent be granted at this early stage of the proceeding.

7The applicant’s WSIB claim file will likely contain materials that are at least arguably relevant to the issues in dispute in this case. The allegations in the Application all seem to revolve around the applicant’s entitlement to WSIA benefits, including an apparent allegation that the applicant was exaggerating her difficulties and defrauding the WSIB and/or the employer. The Application appears to be as much about the WSIB’s adjudication of the file and alleged interference in that process by the respondent. The applicant alleges that the respondent discriminated against her by providing surveillance tapes made of the applicant to the WSIB after her benefits were terminated. Similarly the applicant alleges that the respondent discriminated against her by providing damaging information about her to the WSIB. The applicant also alleges that the respondent failed in their obligation to accommodate her to the point of undue hardship when they returned her to work on modified duties as recommended by the WSIB. The applicant herself refers to a number of WSIB documents in her Application but has been selective in what has been produced.

8Although many of the allegations the applicant makes are likely not matters that this respondent can be considered to be responsible for, as indicated above, the preponderance of them appear to relate to the process of adjudicating her WSIB claims, in addition to some which concern the medical issues that may have impacted on her return to the workplace. As such it seems to me unassailable that the WSIB rile will likely contain materials that are at least arguably relevant.

9As regards the applicant’s objections, they are no more than assertions at this stage. No doubt the WSIB file will contain confidential medical information but that fact does not make the information necessarily confidential and not producible in this proceeding. The issue is not whether information is sensitive or in some sense confidential. All medical evidence is confidential for certain purposes, but sensitive and confidential information is very often producible in these proceedings. The fact that a party is required to disclose a document does not of course mean that it will be admitted in evidence at the hearing. The admission of documents into evidence requires that the document be material and relevant amongst other considerations. The applicant has not suggested that the WSIB file will not contain any arguably relevant evidence, indeed as pointed out earlier, the applicant relies extensively on materials contained in the WSIB file in her Application. The applicant also suggests that some of this material is privileged but does not suggest how that might be the case. I am not satisfied that any of the objections of the applicant can be sustained.

10The Tribunal does not normally Order the production of documents prior to the respondent filing of the Response, but has done so in the appropriate case. See Power v. Toronto Transit Commission, 2011 HRTO 1462. In this case, given the centrality of the WSIB process as well as the applicant’s medical condition at the material times it is appropriate to do so. Accordingly the Orders requested by the respondent are appropriate in the circumstances.

ORDER

11For all of the reasons above the Tribunal makes the following Orders:

1. The applicant will forthwith disclose the applicant's complete WSIB claim file before the respondent is required to file its Form 2 Response to the Application; Alternatively, the applicant may provide an authorization to the respondent allowing it access to the WSIB claim file for her; and

2. The applicant will provide her consent to Showa disclosing to the Tribunal, in Showa's Response to the Application, information and documents included in the applicant's WSIB claim file. The applicant will comply with this Order by delivering and filing her consent in writing within 14 days of the date of this Interim Decision; and

3. The time limit for the respondent to file its Form 2 Response is extended to 30 days after the date on which the respondent’s legal counsel receives the applicant's complete WSIB claim file.

12I am not seized of this case.