HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Elisabeth Mitchinson
Applicant
-and-
Pathstone Mental Health
(formerly Niagara Child and Youth Services)
Respondent
INTERIM DECISION
Adjudicator: Jay Sengupta
Indexed as: Mitchinson v. Pathstone Mental Health
APPEARANCES BY
Elizabeth Mitchinson, Applicant ) David Baker, Counsel
Pathstone Mental Health, Respondent ) Anna Vereschagin, Counsel
Introduction
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”). In addition to her former employer, Niagara Child and Youth Services (now Pathstone Mental Health), the applicant named Ellis Katsof, the present Chief Executive Officer of the organization as a personal respondent. The applicant alleges that she experienced discrimination in respect of employment on the basis of disability. The respondents deny discrimination and seek dismissal of the Application.
2A hearing is scheduled to take place over three consecutive days beginning on April 17, 2012.
3The parties have filed three Requests for Order during Proceedings (RFOP) in the past month, dated March 2, 2012, March 13, 2012 and March 28, 2012.
4In the RFOP dated March 2, 2012, the applicant seeks to amend the remedial portion of her Application. The respondents oppose this Request.
5In their RFOP dated March 13, 2012, the respondents seek an order removing the personal respondent, Elis Katsof, as a party to these proceedings, an order denying the applicant permission to call the evidence of Dr. MacTavish, her family physician, or, in the alternative, an order for production of the complete and unredacted file kept by Dr. MacTavish for the period between January, 2007 and the present. The applicant opposes these Requests.
6Finally, in the RFOP dated March 28, 2012, the applicant seeks an order for production of a number of documents allegedly in the respondent organization’s possession that she argues are arguably relevant. The respondents argue that the documents either do not exist or are not arguably relevant.
7A conference call was scheduled for April 10, 2012 in order for the parties to make additional submissions, if required, on the Requests for Order. The conference call was adjourned, on consent, due to unavailability of the applicant’s counsel for personal reasons and resumed on April 11, 2012.
Request to Remove Personal Respondent Katsof
8Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42, the Tribunal set out the general principles that apply to this issue:
The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.
9The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5:
Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?
Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?
Would any prejudice be caused to any party as a result of removing the personal respondent?
In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.
10The respondents seek an order removing Ellis Katsof as a party to these proceedings. Counsel argues that there is no allegation that Mr. Katsof acted on his own or outside the course of his employment, no issues as to the corporate respondent’s deemed or vicarious liability in the event that a violation of the Code is established and no issue as to the corporate respondent’s ability to respond to and/or remedy any alleged breach.
11Counsel also points out that until the RFOP dated March 2, 2012, the applicant sought no specific remedy as against the personal respondent Katsof. In that RFOP the applicant seeks an order allowing her to amend her Application to seek general damages in the amount of $10,000.00 against Mr. Katsof personally (see below).
12Finally, Mr. Katsof will be present and provide evidence at the hearing on behalf of the corporate respondent whether named as a personal respondent or not. However, the respondents argue that by making the amendment request a month before the hearing, the respondents are prejudiced by the lateness of this request, the increased risk of liability to Mr. Katsof, and the possibility that the respondents may be adverse in interest.
13The applicant argues that Mr. Katsof is a proper respondent because his conduct in terminating her for reasons related to her disability and his subsequent treatment of her (for example, refusing to notify her co-workers about her departure) are central issues and the nature of his conduct makes it appropriate to make a remedial award specifically against him (see paragraph 4 of the 5 factors listed in Persaud above). Alternatively, the applicant seeks to have the decision as to whether Mr. Katsof is removed as a respondent deferred to the end of the hearing once all of the evidence is heard, arguing that no prejudice exists to Mr. Katsof as he is to be present in any event.
14I agree with the respondents’ submissions. In my view, considering all the circumstances, it is not necessary to continue to involve Ellis Katsof as an individual respondent in order to have a fair, just and expeditious resolution of the merits of the Application. In my view, the allegations concerning Mr. Katsof are not of a nature that would warrant continuing this Application against him as a party.
15The respondents’ request to remove Ellis Katsof as an individual respondent to the Application is therefore granted. The style of cause shall be amended accordingly.
Applicant’s Request to Amend Application
16In determining requests to amend an Application under section 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend and the prejudice to the respondent. See Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.
17In the present case, the applicant is not attempting to add new allegations concerning the issue of whether a breach of the Code occurred. She seeks to amend her remedial request. The reason given for making this request is that at the time of filing, the applicant was not represented by counsel. This does not explain why the request is made at such a late stage in the proceedings given that present counsel for the applicant appears to have become involved as early as September, 2011.
18However, it is my view that other than the request to seek a remedy as against Mr. Katsof, the remaining amendments are unlikely to cause substantial prejudice to the respondent. In the event that the respondent requires additional time or an opportunity to add to its witness or document list to properly respond, I will hear such requests at the outset of the hearing on April 17, 2012.
19The applicant’s request to amend the Application is granted in part. All of the requested amendments to the remedial relief sought in the event a breach of the Code is established, other than the request to seek a remedy against the former personal respondent who has been removed as a party to these proceedings, are granted.
Evidence of Dr. MacTavish
20The respondent seeks an order preventing Dr. MacTavish from giving evidence in support of the applicant’s case due to the failure of the applicant to include the medical file maintained by her in the arguably relevant document disclosure, the subsequent delay in filing a witness statement for Dr. MacTavish and the incomplete patient file eventually provided by the applicant to the respondent.
21Rule 5.6 of the Tribunal’s Rules of Procedure states that when a party fails to deliver materials to another party as required by the Tribunal’s Rules the Tribunal may refuse to consider the material or may take any other actions it considers appropriate. Rules 16 and 17, as reinforced by Rule 5.6, are meant to ensure that parties know about any documents that are relevant to their case, and also what documents and witnesses they may face at the hearing.
22While the Tribunal’s Rules allow the Tribunal to take any steps necessary in the event of a breach of the Rules, I am disinclined to prevent Dr. MacTavish’s evidence from being heard altogether. She will be permitted to give her evidence. I deal below with the request for production of a copy of the applicant’s unredacted medical records for the material time.
Requests for Production of Arguably Relevant Materials by Both Parties
23It is well-established that the basic principle in determining a production request is whether the requested documents are “arguably relevant” to the issues in dispute in the proceeding.
24In paragraphs 12 and 13 of McKay v.Toronto Police Services Board, 2009 HRTO 1220, the Tribunal held as follows:
The threshold test for disclosure at the pre-hearing stage of a human rights proceeding is “arguable relevance”, which requires that there be some relevance between the sought-after material(s) and the subject matter of the complaint. The party seeking production must demonstrate a nexus between the information or document sought and the facts or issues in dispute before the Tribunal: Neusch v. Ontario (Ministry of Transportation), 2002 CanLii 46508.
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.
25As noted in Nassiah v. Peel Regional Police Services Board, 2006 HRTO 18 at paragraph 8, this is a relatively low threshold for the requesting party to meet. However, as the Tribunal stated in Lampi v. Princess House Products Inc., 2008 HRTO 1 at paragraph 10:
Documents 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.
26The Tribunal in Lampi (supra) also went on to point out that:
The Tribunal is also sensitive to privacy issues, particularly in relation to the production of medical records. Even where such records are arguably relevant, compelling privacy interests can be protected through such techniques as limiting the documents ordered to be produced, restricting the individuals who may view the documents, or ordering production to the Tribunal for inspection or redaction before disclosure: see, for instance, McEwan v. Commercial Bakeries Corporation, 2004 HRTO 13. The Tribunal may also order production without screening. It is, of course, understood that parties may not use material disclosed to them through the Tribunal’s processes for purposes other than its proceedings.
27I find that medical documentation relating to the applicant’s disabling conditions, while not central to the allegation that one of the reasons for the termination of her employment was her disability, has been put in issue by her.
28Given that she seeks to have her physician speak to her medical condition from 2007 onward, the medical file in its entirety for the period from January 2007 through to the present falls within the meaning of what is arguably relevant to the factual and legal issues raised by the Application.
29I order production of the unredacted medical file maintained by Dr. MacTavish for the period from January 2007 to the present to the respondent immediately, and in any event, no later than April 13, 2012. A copy should be filed with the Tribunal and an extra copy brought to the hearing.
30Although the applicant argues that the pages of the medical file already disclosed cover the issues at hand, one party to a proceeding cannot normally produce only those portions of a documentary record they deem to be relevant. Arguably relevant documentation should be produced in its entirety unless there are exceptional circumstances, such as claims of privilege which preclude disclosure in the normal course.
31The respondent must have the opportunity to test the evidence of the applicant’s family physician. It is entitled to full disclosure of the medical file for the period put in issue by the applicant and not merely to portions of the documentary record selected for viewing by the applicant.
32I have heard and understand the applicant’s concerns relating to privacy issues. Counsel for the respondent is aware of the implied undertakings associated with disclosure and production of this nature. The parties are reminded of their obligation to treat sensitive medical information with the utmost care and to be mindful of their responsibility to ensure that the material that is produced is not used for any purpose other than this proceeding.
33The applicant’s requests for production comprise of requests for documents that she argues are arguably relevant to the issue of whether part of the reason for her termination was the cost of providing accommodations relating to her disability and to the issue of the reason that the respondent has offered for the termination, specifically financial pressures leading to a restructuring of the workplace and workforce.
34Some of the documents requested postdate the applicant’s termination in June 2010 and, in my view, would not be arguably relevant to either the issue of breach or remedy and I decline to order their production.
35I find that the documents requested by the applicant in the RFOP dated March 28, 2012 in paragraph 3, meet the relatively low threshold for arguably relevant documents and order either their production or a confirmation that such documents do not exist to the applicant by Monday, April 16, 2012, with the following exception. Any documents requested that postdate the fiscal year that includes June 2010 need not be produced. A copy of documents produced should be filed with the Tribunal and an extra copy brought to the hearing.
36I will hear from the parties during the course of the hearing as to the admissibility, reliability, relevance and weight with respect to any documents filed as part of the Tribunal’s process thus far and as a result of this Interim Decision.
ORDER
37The respondents’ request to remove Ellis Katsof as an individual respondent to the Application is therefore granted. The style of cause shall be amended accordingly.
38The applicant is directed to produce the unredacted medical file maintained by Dr. MacTavish for the period from January 2007 to the present to the respondent immediately, and in any event, no later than April 13, 2012. A copy should be filed with the Tribunal and an extra copy brought to the hearing.
39The respondent is directed to produce all documents requested in paragraph 3 of the RFOP dated March 28, 2012, except those that relate to a time frame that postdates the fiscal year that includes June 2010, or confirm that such documents do not exist on or before April 16, 2012. A copy should be filed with the Tribunal and an extra copy brought to the hearing.
Dated at Toronto, this 11th day of April, 2012.
“signed by”
Jay Sengupta
Vice-chair