HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brigid Browne

Applicant

-and-

Toronto Transit Commission

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: March 30, 2012

Citation: 2012 HRTO 666

Indexed as: Browne v. Toronto Transit Commission

INTRODUCTION

1The applicant filed this Application on December 19, 2011, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability. The applicant alleges that the respondent failed to properly accommodate her workplace injury in 2010 when it refused to place her in a position that she trained for, specifically a reservation clerk with Wheel-Trans, because of seniority issues.

2On February 21, 2012, the respondent filed Requests for Order During Proceedings (“Requests”). The respondent requests that the Tribunal 1.) permit the respondent to have access, use and disclosure of the applicant’s Occupational Health and Claims Management file and Workplace Safety and Insurance Board (“WSIB”) records (collectively as “applicant’s health files”) as maintained by the respondent employer, 2.) permit the respondent to access, use and/or disclose the applicant’s health files for the purpose of responding to and defending the Application, including being allowed to review the applicant’s health files with individuals who will provide instructions and/or are anticipated to be witnesses, and 3.) grant an extension of the deadline to file its Response of at least 35 days from the date the Tribunal issues its order with respect to these Requests.

Respondent’s Position

3The respondent indicates that the applicant suffered a workplace injury in October 2005. The respondent states that the applicant’s allegations relate to the accommodation of her disability and the manner in which she was treated by the respondent employer. The respondent argues that many of the documents relating to these matters, including the applicant’s WSIB records, are contained in the applicant’s health files as managed by its Occupational Health and Claims Management department (“OCHCM department”). The respondent argues that it is necessary to access and use the applicant’s health files in order to respond to the applicant’s allegations. The respondent submits that counsel, instructing parties and witnesses must be able to review the applicant’s health files and, therefore, asks the Tribunal to authorize access, use, and/or disclosure of the applicant’s health files for the purposes of responding to the Application.

4The respondent submits 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”).

5The respondent references Tribunal jurisprudence that has held express consent may not be necessary for 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 respondent also points out that similar orders as those sought in the present case have been issued by the Tribunal in other proceedings. See Bryer v. (City) Toronto, 2010 HRTO 2389; Johnston v. Toronto Transit Commission, 2011 HRTO 923; Power v. Toronto Transit Commission, 2011 HRTO 1462; and O’Brien v. Toronto Transit Commission, 2012 HRTO 170.

Applicant’s Position

6The applicant does not appear to oppose the respondent’s requests. The applicant indicates that she is confused because the respondent should be familiar with her health files and must have reviewed her medical records as part of making its decision regarding her accommodation and the job placement.

ANALYSIS OF REQUEST TO ACCESS APPLICANT’S HEALTH FILES

7It 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.

8With respect to the first step, it would appear that the applicant does not dispute arguable relevance given that she posits that the respondent was already privy to her personal health information in reaching its decision regarding her accommodation. As such, the applicant seems to acknowledge that her health information and disability-related accommodation needs are arguably relevant to the allegations and issues raised in the Application.

9While “arguable relevance” may not be a high onus for the requesting party to satisfy, the second step of the analysis requires consideration of other interests, such as confidentiality and fairness. Consequently, documents meeting the “arguable relevance” threshold may not be disclosed or may be subjected 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 therefore 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.

10The determinative question is what are the facts and issues for which disclosure is necessary to facilitate the respondent’s ability to file a Response. Although the applicant was injured in October 2005, the crux of her concerns as stated in the Application pertains to her job training and placement in 2009 and 2010. The applicant appears to be asserting rights and claims against the respondent with respect to events surrounding the Wheel-Trans reservation clerk job competition. The applicant indicates that as part of her accommodation she was trained for this position in 2009 but was not offered job in 2010 due to a seniority conflict. At this stage, it does not appear that the applicant is impugning the respondent for any events prior to 2009.

11The temporal scope of the sought after OHCM department health files is unclear. In light of the fact that the applicant’s discrimination allegations relate to events in 2009 and onwards, it is possible that the health files maintained by the OHCM department could potentially reference health issues and claims matters unconnected to the events alleged in this Application. 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 parameters of the documents being requested, I am concerned that the respondent is seeking access to all of the applicant’s health files. I question whether the whole of the applicant’s health files are arguably relevant and necessary disclosure for the purposes of responding to the allegations regarding the disputed job competition. As such, I find that the respondent’s disclosure request may be too broad.

12I 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 as part of the applicant’s allegations surrounding the disputed job (January 2009 and onwards) is arguably relevant and necessary for the purposes of preparing a Response. Should the respondent 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 its Response.

13I find that the applicant’s health files which underlie the events in 2009 and onwards as described in the Application are arguably relevant to the factual and legal issues in dispute, namely the nature of the necessary accommodation and the dispute over job placement, and should be available to the respondent for the purposes of preparing its Response.

14In the interests of fairness and expeditiousness in the specific circumstances of this case, the Tribunal orders the following:

(i) The respondent is granted disclosure and access to the applicant’s health files from January 2009 onwards;

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

(iii) The respondent’s request for an extension of time to file a Response is granted. The respondent is required to file its Response within 35 days from the date of this Interim Decision.

15I am not seized of this matter.

Dated at Toronto, this 30th day of March, 2012.