Randy Seegobin v. City of Ottawa and Richard Langley, 2013 HRTO 1419

Human Rights Tribunal of Ontario

B E T W E E N:

Randy Seegobin Applicant

-and-

City of Ottawa and Richard Langley Respondents

INTERIM DECISION

Adjudicator: Ruth Carey Date: August 16, 2013 Citation: 2013 HRTO 1419 Indexed as: Seegobin v. Ottawa (City)

WRITTEN SUBMISSIONS

Randy Seegobin, Applicant David Migicovsky, Counsel

City of Ottawa and Richard Langley, Respondents David Patacairk, Counsel

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 race, ethnic origin and disability, and reprisal.

2On July 26, 2013, the respondents submitted a Request for Order During Proceeding seeking an order for production of medical information about the applicant, and an extension of time for the productions required under Rules 16 and 17 of the Tribunal’s Rules of Practice. The applicant opposes the Request with respect to production in its entirety and consents to the Request with respect to the extension of time.

BACKGROUND TO THE REQUEST

3The applicant is an employee of the respondent City. The personal respondent is one of his supervisors. The Application states that in April of 2009 the applicant was diagnosed with osteoarthritis of the lumbar spine, and fibromyalgia, and that he also has asthma. The Application alleges that the respondents failed to appropriately accommodate the applicant’s disabilities, that the personal respondent harassed him, and that the respondents reprised against him after he sought accommodation by removing some of his job responsibilities.

THE REQUEST FOR PRODUCTION OF MEDICAL INFORMATION

4The respondents seek an order for production of three categories of medical documentation. The first is medical documentation previously submitted by the applicant to its Employee Health and Wellness division in support of requests for accommodation of the applicant’s disabilities. Although this documentation is already in the hands of a division of the respondent City, the Request says an order for production is being sought “out of an abundance of caution” to ensure the employees of that division do not contravene any professional or legal obligations of confidentiality. The second category of medical documentation sought by the respondents is anything in the possession of the applicant, his counsel, or his doctors, related to his alleged disabilities. The third category is the applicant’s Ontario Health Insurance Plan (“OHIP”) summary.

5The applicant takes the position that the requested documentation is not arguably relevant because the respondent does not dispute the applicant’s claim that he has the disabilities he says he has.

6An issue in dispute is whether or not the respondent City accommodated the applicant’s disabilities appropriately in the workplace. The applicant does not allege that the respondents failed to respond to his requests to accommodate or failed to put in place any accommodations. Rather he alleges some of the accommodations provided were inappropriate and accommodations he wanted that would have been appropriate were not provided. In that context, the medical documentation provided to the respondent City’s Employee Health and Wellness division by the applicant to support his requests for accommodation is relevant to the question of whether or not the accommodations provided meet the respondents’ obligations under the Code. Further, the applicant has already disclosed those materials to the respondent City, so the impact on his privacy interests of the order requested with respect to those materials is minimal. As a result, the respondents will be permitted to use the documentation the applicant has given to the respondent City’s Employee Health and Wellness division for the relevant period, provided that they send a copy of the entire file in the possession of the Employee Health and Wellness division to the applicant.

7With respect to the request for production of the applicant’s medical records in the possession of the applicant, his counsel, or his doctors, related to his alleged disabilities, I am satisfied that many if not all of those documents are also arguably relevant to the issue of whether the respondent properly accommodated the applicant’s disabilities. In addition, such documents also may be relevant to the issue of remedy, given the allegations contained in paragraph 17 of the Application in which the applicant claims that:

These events have had a negative [impact] on my health, physical and mental, and my work performance… My doctor has advised me that stress is not helpful to my condition, and I feel that the discrimination and harassment is exacerbating my physical disability.

8Given these claims of the applicant, the applicant’s health records with respect to the claimed disabilities of asthma, osteoarthritis of the lumbar spine, and fibromyalgia, are arguably relevant for the period January 1, 2009, to present.

9The applicant argued that the applicant’s privacy interests in his medical records must be taken into account even if the documents in question are arguably relevant and relies on McKay v. Toronto Police Services Board, 2009 HRTO 1220, and Lampi v. Princess House Products Inc., 2008 HRTO 1, for that proposition. I agree.

10Production of medical records will be limited to the relevant period of time, and to the conditions claimed by the applicant in the application. Further, medical documentation in the possession of the applicant’s counsel will not be ordered disclosed, as that is arguably duplicative and may be subject to litigation privilege.

11With respect to the request for production of the applicant’s summary of OHIP billings, some parts of that record would be arguably relevant as it reflects visits to the applicant’s physician some of which presumably are related to the applicant’s disabilities. However, if the applicant has experienced medical issues unrelated to the disabilities claimed in the application then the OHIP billing records would disclose information that is not arguably relevant to the Application. In addition, given that the applicant’s medical records related to his disability in his physicians’ possession for the relevant period are to be disclosed, disclosure of the OHIP billing summary is unnecessarily duplicative. The applicant will not be ordered to consent to the disclosure of his OHIP billing summary.

THE EXTENSION OF TIME REQUEST

12On February 14, 2013, the Tribunal issued Notice of Confirmation of Hearing. It stated that the parties were required to file with the Tribunal and deliver to the other party witness statements and documents to be relied on pursuant to Rules 16.2, 16.3, 17.1 and 17.2 by August 9, 2013. The parties did not comply with this direction. The hearing is scheduled for September 23, 24, and 25, 2013. The applicant consents to the respondents’ request for an extension of time provided that its obligations are similarly extended. The timelines for production and disclosure will be extended as set out below.

ORDER

13The Tribunal makes the following order:

a. The respondents may use the documentation already in the possession of the respondent City’s Employee Health and Wellness division pertaining to the applicant for the period January 1, 2009, onwards, for the purpose of the hearing of this Application;

b. On or before August 30, 2013, the respondents shall deliver to the applicant a copy of all records in the possession of the Employee Health and Wellness division concerning the applicant for the period January 1, 2009, onwards;

c. On or before August 30, 2013, the applicant shall deliver to the respondents copies of all documents in the possession of his physicians related to his disabilities of asthma, osteoarthritis of the lumbar spine, and fibromyalgia, for the period January 1, 2009, onwards;

d. The respondents’ request for an order requiring the applicant to consent to the production of his OHIP billing summary is denied;

e. On or before September 13, 2013, all parties shall file with the Tribunal and deliver to the other parties: a list of all documents the party intends to rely on at the hearing; a copy of each document on that list not already filed or delivered; a witness list of intended witnesses; a statement summarizing the expected evidence of each witness including the applicant and personal respondent; and a statement of delivery.