Faye Hendy v. Nartech Metal Products Ltd., 2012 HRTO 601

Human Rights Tribunal of Ontario

BETWEEN:

Faye Hendy

Applicant

-and-

Nartech Metal Products Ltd.

Respondent

INTERIM DECISION

Adjudicator: David Muir Date: March 22, 2012 Citation: 2012 HRTO 601 Indexed as: Hendy v. Nartech Metal Products

WRITTEN SUBMISSIONS

Faye Hendy, Applicant ) Chris Surowiak, Representative

Nartech Metal Products Ltd., Respondent ) Jeanine Watt, 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.

2This Interim Decision deals with respective Requests for Order During Proceeding (Requests) filed by the respondent and applicant. Both Requests concern the production of documents prior to the hearing which is scheduled to begin on June 4, 5 and 6 2012.

3The respondent's Request is extensive and is set out here:

1. That the applicant produce all medical reports, clinical notes, x-rays, assessments and examinations from all treating physicians, chiropractors, physiotherapists, psychiatrists, psychologists, hospitals or clinics or any health care practitioners, dating from September 24, 2009 to 'present.

2. That the applicant also produce all relevant medical or health care documents related to an alleged diagnosis of depression or anxiety be produced for at least one year prior to the date of the accident on September 24, 2009.

3. That the applicant disclose her entire Workplace Safety and Insurance Board (WSIB) file (Claim # 25459262) from date of accident to present and that the applicant consent to an Order that the respondent may refer to materials and documents in the WSIB filed in this proceeding.

4The applicant has responded to this Request by providing a consultation note from a physician dated February 21, 2012 and a letter dated January 18, 2012 from the applicant's representative to counsel for the respondent wherein the applicant identifies three other documents upon which she intends to rely.

5In her Request the applicant seeks an Order seeking to prevent the respondent from referring to or relying upon any documents obtained from the applicant's WSIB medical file on the basis that pursuant to section 59(6) of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A (WSIA) this information cannot be used in any other proceeding without her consent. Notwithstanding this position the applicant has indicated that she will be relying on documents contained in the WSIB file.

6The ultimate issue arising out of both Requests is the arguable relevance of the WSIB file and other medical documents, to the issues in dispute in this Application. I do not agree with the applicant that section 59(6) of the WSIA prevents the respondent from having access to the materials in the WSIB file, nor does it necessarily prevent the respondent from referring to these materials in this proceeding if any such material is relevant to the issues in dispute and otherwise admissible. The applicant is correct that such disclosure and use by the respondent or anyone else for that matter requires her consent. The Tribunal has authority to require that the applicant consent to such use by a respondent in these proceedings. The threshold question at this stage is whether the material sought is arguably relevant to the issues in dispute in the Application. See Boyce v. Toronto Community Housing Corporation, 2011 HRTO 1677 and Neilor v. Bourgeois Motors, 2010 HRTO 528.

7In her application, the applicant alleges that she was injured while at work on September 24 2009 and was required to take a medical leave. The applicant also alleges that while she was on a leave the respondent threatened that if she did not return to work that she would be terminated. The applicant alleges that medical testing confirmed that she had suffered two slipped discs and she received physiotherapy in an effort to improve her functional abilities. The applicant also alleges that the respondent advised the WSIB that they could not accommodate her with modified work and she was terminated. The applicant alleges that she received a letter confirming this advice on June 23, 2010. The applicant also alleges that as a result of the discrimination she has experienced mental health problems, anxiety, depression, panic attacks and seeing a psychologist.

8The applicant's physical health and functional abilities are at the heart of this dispute. Although the applicant focuses to some extent on the workplace injury in September 2009 the human rights issues arising out of the Application appear to be the conduct of the respondent after the injury occurred and in particular whether the respondent accommodated the applicant to the point of undue hardship. As such the applicant's health and functional abilities as they relate to her back injury are at the core of the dispute and I am satisfied that these medical records of the applicant including the WSIB materials are at least arguably relevant and should be produced.

9Although neither party referred to this issue in their various submissions, the effect of section 59(6) as well as sections 37(4) and 181(3) of the WSIA prevents the respondent from referring to the WSIA materials in this proceeding without the consent of the applicant. Accordingly the respondent has made a request that the applicant be required to consent to these materials being referred to by the respondent in this proceeding. Of course the fact that these materials are produced to the respondent does not mean that they will ultimately be referred to or relied at the hearing. I find that it is fair just and expeditious that the applicant provide her consent to the respondent referring to the WSIB materials in this proceeding.

10As regards the respondent's request for any records related to the applicant's claim of psychological harm flowing from its actions I find that this material is also at least arguably relevant as the applicant has very clearly put her mental health in issue in this case and is claiming damages on the basis of harm to her mental health. Any such documents should be produced from September 24th 2008 to the present.

11Finally the applicant has requested that the respondent be prevented from referring to or relying on materials that it obtained from the applicant's WSIB claim file. The only basis articulated for this Request is that the applicant has not consented to the respondent referring to or relying on these materials. It follows from my conclusions above that the applicant is required to consent to these materials being produced and potentially referred to in these proceedings on the basis that they are arguably relevant to the issues in dispute. The applicant's Request is denied..

ORDER

12The Tribunal makes the following Orders:

1. The applicant will deliver to the respondent within 28 days of the date of this Interim Decision all medical reports, clinical notes, x-rays, assessments and examinations from all treating physicians, chiropractors, physiotherapists, psychiatrists, psychologists, hospitals or clinics or any health care practitioners, related to her back injury dating from September 24, 2009 to present.

2. The applicant will deliver to the respondent within 28 days of the date of this Interim Decision all relevant medical or health care documents related to an alleged diagnosis of depression or anxiety from September 24, 2008 to the present.

3. The applicant will deliver to the respondent within 28 days of the date of this Interim Decision her entire Workplace Safety and Insurance Board file (Claim # 25459262) from September 24, 2009 to the present; and

4. The applicant will provide her consent to the respondent referring to materials and documents in the WSIB file in this proceeding.

13I am not seized of this case.