Bartlett v. Hydro One Networks Inc., 2013 HRTO 1065

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tania-Joy Bartlett

Applicant

-and-

Hydro One Networks Inc., Kyle Clothier, Stu Smith, Tom Stilling and Jordan Varley

Respondents

-and-

Canadian Union of Skilled Workers

Intervenor

INTERIM DECISION

Adjudicator: Maureen Doyle

Date: June 14, 2013

Citation: 2013 HRTO 1065

Indexed as: Bartlett v. Hydro One Networks Inc.

APPEARANCES

Tania-Joy Bartlett, Applicant Ian Fellows, Counsel

Hydro One Networks Inc., Respondent Richard Charney, Counsel

Kyle Clothier, Stewart Smith and Tom Stilling, Respondents J. Zdriluk, Counsel

Jordan Varley, Respondent No One Appearing

Canadian Union of Skilled Workers No One Appearing

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of sex and alleging reprisal or threat of reprisal contrary to the Code.

2The hearing into this matter has commenced and the applicant has provided her testimony in chief and has been cross-examined.

3The respondent Hydro One Networks Inc. (HONI) filed a Request for Order During Proceedings (RFOP) in which they seek an order for the following:

a. Full and unedited copies of all outstanding medical or psychiatric records for the period January 1, 1997 up to and including December 31, 2012, inclusive of all documentation incorporated by reference;

b. Any and all instructions provided to and/or reviewed by the Applicant’s proposed experts, Dr. Charles Chamberlaine and Dr. Scott McIntosh (“experts”) and;

c. Any all [sic] foundational materials provided to and/or reviewed by the Applicant’s proposed experts.

4It is understood that an order for production of this documentation may necessitate the applicant being recalled to give further testimony.

5The applicant filed a Response to the RFOP, opposing the request on the grounds that the documents are not arguably relevant, production of the documentation would violate the applicant’s privacy, and the timing of HONI’s request serves to derail just and expeditious proceedings.

6At the most recent day of hearing, the parties provided oral argument regarding the request for documents. The applicant confirmed that irrespective of its objection, the documents sought at “b” and “c” above have been provided to the respondents.

7Further, and in accordance with submissions made in the written Response to the RFOP, the applicant indicated that medical records of Elmwood Health Services, Great West Life, Grey Bruce Health Services and London Health Sciences had already been provided to the respondents, with the redaction of unrelated medical treatment, family medical history and medical treatment which occurred after August 2010. The applicant submitted that the redacted information was not arguably relevant to the issue in dispute. At the hearing, the applicant also submitted that the request for medical information dating back to 1997 was excessive and took the position that production pre-dating 2009, the time when the applicant’s allegations commence, should not be ordered. Finally, the applicant submitted that if HONI’s request is granted, production should be made to the Tribunal and the Tribunal should then determine if the documents are arguably relevant and only produced to the respondents at that point.

8In her Application and in her testimony, the applicant has made the matter of her health arguably relevant. There is documentation before the Tribunal which references the applicant’s health and medication prescribed to her, and the applicant has provided testimony referencing the state of her health at various times. The earliest evidence of her health which she introduced related to her loss of memory of events which had led to a period of hospitalization and medical care on September 27, 2004. During the course of her testimony she also stated a need to consult documentation to assist her in recalling events, as she could not independently recall them due to stress and the passage of time. Further, she provided her current diagnoses and made several references to the fact that she was taking medication on the days she provided testimony.

9When asked why he sought medical information dating back to January 1997, counsel for HONI indicated that there was “no magic to that precise date” but that it was a “sense of a reasonable period of time”.

10I have heard and reviewed the parties’ submissions and find that the applicant has rendered her health arguably relevant in these proceedings. While I agree that it is unfortunate that this request was not made earlier in the proceedings, I find nonetheless that it is appropriate, especially in circumstances where the applicant has made not infrequent references to her health in her testimony, to order the production of medical documentation. I agree with the applicant, however, that an order for production of documentation dating back to 1997, without a clear rationale for that time frame, would be excessive. I find that the appropriate time period is from September 2004, the first time for which the applicant makes detailed reference to her health, to the last day when she gave testimony, being February 6, 2013.

11Though the applicant has submitted that production of unredacted medical documentation may compromise her privacy, this is an unfortunate result of the production of medical documentation wherever a party’s health is arguably relevant. There was no submission indicating any particular prejudice to the applicant. The parties are reminded, however, that whether any particular information contained in the production is admitted into evidence, will be subject to a determination of its relevance.

12Finally, the parties are reminded that an order for the production of medical documentation is an order which obliges a party to reveal potentially sensitive personal information to a party adverse to her or his own interest. While the Tribunal’s Rules of Procedure provide for confidentiality with respect to all documents, in the circumstances of this order for production of medical documentation, it is worthwhile to remind the parties of the seriousness attached to confidentiality and to set out the provisions of Rule 3.3:

Parties and their representatives may not use documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal.

13Finally, I note that the Tribunal issued a Case Assessment Direction (CAD) in this matter on January 19, 2012, directing the respondent Jordan Varley to advise the Tribunal as to whether he intended to attend the hearing in this matter. The CAD directed that if he failed to respond within seven days of the CAD or if he advised that he did not intend to attend the hearing dates, the matter would proceed with no further Notice of Hearing to be provided to him. The Tribunal has received no communication from the respondent Jordan Varley, nor has he attended at any of the several hearing days in this matter, nor does the Tribunal have any indication that he intends to participate in these proceedings.

ORDER

14The Tribunal directs as follows:

The applicant shall provide to the respondents, with the exception of Jordan Varley, full and unedited copies of all outstanding medical or psychiatric records for the period September 27, 2004 to February 6, 2013, inclusive of any documentation incorporated by reference. The applicant shall take steps forthwith to arrange compliance with this direction and at the next day of hearing will advise as to a realistic timeframe for production.