HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Claude Quesnelle
Applicant
-and-
Waypoint Centre for Mental Health Care
Respondent
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Quesnelle v. Waypoint Centre for Mental Health Care
WRITTEN SUBMISSIONS
Claude Quesnelle, Applicant ) Self-represented
Waypoint Centre for Mental Health Care, ) Erin M. Miller, Counsel
Respondent )
INTRODUCTION
1The applicant filed this Application on August 3, 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 and age.
2The applicant alleges that, with transitioning of his job from a registered nursing position to a care worker, the respondent failed to respect his workplace accommodations. The applicant also alleges that the respondent refused to provide him with training for an alternate position because the respondent anticipated that he would retire in two years.
3On November 18, 2011, the Tribunal issued a Notice of Application to the respondent employer requiring the respondent to file a Response (Form 2).
4On December 22, 2011, the respondent filed Request for Order During Proceedings (“Request”) asking that the Tribunal make the following orders:
require the applicant to waive confidentiality to all documents in the possession of the respondent’s Occupational Health Nurse or her designate (“the respondent’s nurse”) and permit the respondent’s nurse to release all documents in her possession relating to applicant from September 21, 2000 to present (“applicant’s health files”);
require the applicant to consent to allow the respondent’s nurse to speak to the respondent’s representatives and testify about the applicant’s confidential medical information contained in the applicant’s health files;
alternatively, require the respondent’s nurse to release and disclose any information as noted in 1 and 2; and
grant an extension of 14 days for the respondent to file its Response from receipt of the disclosure or the Tribunal’s Order.
Summary of Allegations
5The applicant states that he worked in an accommodated position of a Recreation Attendant 2 since September 2002. The applicant alleges that this position required him to hold a license as a registered practical nurse.
6The applicant alleges that in July 2010 the respondent employer informed employees in the Recreation Attendant 2 position that the job was being transitioned from a registered nursing position to an unregistered care provider position at a lower rate of pay. The applicant alleges for the next six months the respondent employer attempted to return him to ward nursing duties contrary to his accommodation restrictions. The applicant indicates that he supplied an updated medical report which confirmed his accommodation restrictions.
7The applicant further alleges that, despite his protests, he was transferred to a different ward and that in November 2010 he became ill and unable to work because of the stress. The applicant alleges that in April 2011, when he was medically cleared to return to work, the respondent employer indicated that there were no positions for him other than working in the wards. The applicant alleges that he alerted the respondent to an alternate position; however, the respondent indicated that it would not make sense to train him in that job because he was retiring in two years.
Respondent’s Position
8The respondent states that all of the applicant’s medical documentation, including those relating to his accommodation, are maintained by the respondent’s nurse and are not accessible to the respondent or its counsel. The respondent indicates that the applicant’s medical information has never been produced in its entirety to the respondent.
9The respondent argues that the applicant raised the issue of the respondent’s compliance with his physician’s recommendations in terms of the appropriate accommodation. The respondent submits that access to all of the applicant’s health files are required for the respondent to properly defend itself. The respondent, therefore, asks the Tribunal to order the applicant to consent to disclosure or order the respondent’s nurse to produce all of the applicant’s health files from September 21, 2000 for the purposes of responding to the Application.
10The respondent submits that Tribunal authorization is necessary because of the duties and restrictions under the Personal Health Information Protection Act, 2004 S.O 2004, c. 3, Sched. A (“PHIPA”), applicable to health information custodians, including the respondent’s nurse. The respondent indicates that section 29(a) of PHIPA does not permit the respondent’s nurse to disclose personal health information unless the applicant gives his consent or, in accordance with section 41(d)(i), unless the Tribunal orders such production. The respondent argues that that it is, therefore, necessary that the Tribunal either order the applicant to provide consent or the Tribunal to order the nurse to provide disclosure so that the respondent may be permitted to review the applicant’s health files for the purposes of filing its Response.
Applicant’s Position
11The applicant refuses to provide consent for release of his health files. The applicant submits that the respondent was provided with an updated medical report which confirmed his accommodation needs and that when he raised the possibility of an alternate job the respondent refused to provide him with training because of his age.
REQUEST FOR ACCESS APPLICANT’S HEALTH FILES
12Pursuant to Rule 1.7(p) of the Tribunal’s Rules of Procedure (“Rules”), in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may require a party to produce any document and information. As such, the Tribunal may order pre-hearing disclosure in order to ensure compliance with the obligations under the Rules.
13It is well-established that a party seeking production of documents must demonstrate that the information contained in the documents is “arguably relevant” to the proceeding.
14The “arguable relevance” threshold has been described as “not a particularly high bar”. See Nassiah v. Peel Regional Police Services Board, 2006 HRTO 18 at paragraph 8 and the cases cited therein. While “arguable relevance” may not be a high onus, the requesting party must demonstrate a nexus between the sought-after material(s) and the subject-matter of the application. The Tribunal in McKay v. Toronto Police Service Board, 2009 HRTO 1220, explained 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.
15With respect to the first step, it would appear that the applicant does not dispute arguable relevance. The applicant seems to acknowledge that his disability and accommodation are relevant to the allegations and issues raised in the Application. In response to Question 16 of Application Form 1, which inquires about the existence of important documents, the applicant noted that his doctors’ reports provide “verification of [his] struggles with [his] employer”.
16The second step of the disclosure analysis requires consideration of other interests, such as confidentiality and fairness. 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. In Lampi v. Princess House Products Inc., 2008 HRTO 1, the Tribunal noted that “(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.
17Consequently, in assessing the disclosure requests, the Tribunal must also consider whether fairness in the circumstances requires that the documents ordered for production be subject to certain limitations, terms or conditions, in particular to address such matters as privilege or confidentiality.
18I find that the applicant’s health files which underlie the events described in the Application are arguably relevant to the factual and legal issues in dispute, namely the nature of the applicant’s accommodation in 2010 and the suitability of alternate work in 2011. Although I accept the applicant’s health files have some probative value to the facts and issues in this case, I note that the respondent is seeking the entirety of the applicant’s health files going back to September 21, 2000.
19The respondent has not indicated why it seeks to access the applicant’s health files for the decade prior to the events that form the basis of the allegations in the Application. Given the fact that the applicant’s narrative does not appear to make allegations regarding any specific events prior to 2010, I am concerned that the respondent has not explained its need to access, and the arguable relevance of, the entirety of the applicant’s health files. The allegations in the applicant’s narrative focuses on interactions starting in July 2010 and only appears to impugn the respondent’s decisions and comments in relation to the events surrounding the job transitioning from July 2010 and onwards.
20I 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 to the period of time identified in the applicant’s narrative is arguably relevant and necessary for the purposes of preparing a Response, specifically 2010 and onwards. 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.
21In the interests of fairness and expeditiousness in the specific circumstances of this case, the Tribunal orders the following:
(i) Within 14 days of the date of this Interim Decision, the respondent’s nurse is required to promptly provide disclosure of the applicant’s health files from January 2010 and onwards to the respondent;
(ii) The respondent’s nurse is permitted to discuss with the respondent’s representatives the content of the documents as identified in (i);
(iii) Upon receipt of the documents as identified in (i), the respondent is required to promptly provide the applicant with a copy of the disclosure and to confirm with the Tribunal that the materials were delivered to the applicant; and
(iv) The respondent’s request for an extension of time is granted. The respondent is required to file its Response within 14 days from receipt of the disclosure.
22I am not seized of this matter.
Dated at Toronto, this 17th day of May, 2012.
”signed by”
Ena Chadha
Vice-chair