HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Miguel Zevallos Applicant
-and-
Sunnybrook Health Sciences Centre Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané Date: July 23, 2013 Citation: 2013 HRTO 1275 Indexed as: Zevallos v. Sunnybrook Health Sciences Centre
WRITTEN SUBMISSIONS
Sunnybrook Health Sciences Centre, Respondent Keri Bennett, Counsel
Introduction
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 disability.
2The respondent filed a Request for an Order during Proceeding seeking an order:
a. To the Occupational Health Department of the respondent, to provide the applicant’s occupational health file from 2007 to the present; and
b. To Desjardins Financial Services to provide the applicant’s entire file with respect to his application for Long Term Disability Benefits.
3The applicant alleges that the respondent has failed to return him to work after a prolonged absence. The respondent submits that the applicant is currently in receipt of long-term disability benefits because he has been found to be totally disabled from any occupation. It is the respondent’s position that the applicant is making contradictory statements with respect to his ability to work. The respondent submits that it cannot file a Response without these documents.
4The applicant has not filed a Response to the respondent’s Request for an Order.
The Occupational Health File
5Absent exceptional circumstances, the Tribunal will not permit a request for particulars or production of documents to delay the filing of a complete response: Glynn v. Lowe’s Companies Canada, 2009 HRTO 1180. However, the Tribunal has also recognized in a similar situation that it is sometimes appropriate to order access to an internal medical file at an early stage in order to ensure that the respondents are in a position to meaningfully respond to the Application, see Bryer v. (City) Toronto, 2010 HRTO 2389, Johnston v. Toronto Transit Commission, 2011 HRTO 923, and Power v. Toronto Transit Commission, 2011 HRTO 1462.
6The respondent is unable to access medical documents and communications that are in its possession which are arguably relevant to this matter because of privacy legislation. It would be unfair in these circumstances to require the respondent to file a Response without it being able to review all arguably relevant documents. These are exceptional circumstances which justify the production of these documents at this stage.
Desjardin’s File
7However, Desjardins is not a party to this Application and it does not appear that the respondent served Desjardins with its Request for production of documents. Regardless, the documents sought which are in the possession of Desjardins may be arguably relevant to the proceedings; however, they are not necessary for the respondent to file a meaningful Response at this time.
Order
8The Tribunal orders as follows:
a. The respondent’s Request for the production of the documents in the possession of Desjardins is dismissed;
b. Within seven days of the date of this Interim Decision, the Occupational Health Department of Sunnybrook Health Sciences Centre will deliver to counsel for the respondent all documents in the applicant’s occupational health file from January 1, 2007 to the date of this Interim Decision. Respondent’s counsel must deliver to the applicant a copy of all of these documents within seven days of receiving them; and
c. The respondent must file its Response within 21 days of the receipt of the documents identified at para. 8(b) of this Interim Decision.
9I am not seized.
Dated at Toronto, this 23rd day of July, 2013.
“Signed by”
Geneviève Debané Vice-chair