Lee v. Kawartha Pine Ridge District School Board, 2013 HRTO 1424

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Lee

Applicant

-and-

Kawartha Pine Ridge District School Board

Respondent

-and-

Canadian Union of Public Employees

Affected Party

INTERIM DECISION

Adjudicator: Mark Hart

Date: August 20, 2013

Citation: 2013 HRTO 1424

Indexed as: Lee v. Kawartha Pine Ridge District School Board

WRITTEN SUBMISSIONS

Robert Lee, Applicant

Self-represented

Kawartha Pine Ridge District School Board, Respondent

Brenda Bowlby, Counsel

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”), alleging discrimination with respect to employment because of disability, family status and marital status and reprisal or threat of reprisal.

2A hearing in this matter is scheduled to proceed in Toronto on September 23, 24 and 25, 2013. The purpose of this Interim Decision is to address a Request for Order filed by the applicant dated June 10, 2013, and a Request for Order filed by the respondent on July 17, 2013. I will address the matters raised in each request in turn.

3Before turning to the matters raised in the parties’ requests, I note that by letter dated June 28, 2013, the Canadian Union of Public Employees (“CUPE”) has withdrawn its request to intervene in this matter. The title of proceeding has been amended accordingly. However, as CUPE had been granted intervenor status in this proceeding by Interim Decision dated January 10, 2013 (2013 HRTO 52), and was served with the applicant’s request for order, I will consider the applicant’s request for production from CUPE.

Applicant’s Request for Order

Request to amend Application

4In his Request for Order, the applicant has indicated that he seeks to amend his Application, though in his submissions in support of his request he refers to this as “corrections” to his Application.

5The first statement made by the applicant in his submissions is, “I still stand behind my first application”. In his submissions in reply to the respondent’s response to his request, the applicant states, “I filled out my first application and I still stand behind the information provided with it, and the remedies I was seeking”.

6It is unclear what precisely the applicant is seeking as a result of this aspect of his request. The history regarding the filing of the Application in this matter was addressed in my previous Interim Decision dated September 20, 2012 (2012 HRTO 1792), at paras. 3 to 5, as follows:

The applicant originally filed a lengthy Application dated February 13, 2010. This Application was reviewed by the Tribunal and determined to be incomplete. The applicant submitted the information required to complete his Application, and the completed Application was served on the respondent on December 16, 2010.

On January 10, 2011, the respondent filed a Request for Order seeking a variety of relief. By this time, the applicant had retained legal counsel, who responded to the Request by indicating his intention within 60 days to file a re-drafted Application in order to provide a clear statement of the issues the applicant is raising. By Case Assessment Direction dated May 6, 2011, the Tribunal allowed applicant’s counsel to file a re-drafted Application and directed the respondent to advise following receipt of the Application whether it wished to renew the requests made in its Request for Order.

Due to health issues affecting applicant’s then counsel, the re-drafted Application was not filed with the Tribunal until December 5, 2011. . . .

7As a result of the filing of the re-drafted Application, the respondent withdrew a number of requests it had made in relation to the original Application. The issues as framed in the re-drafted Application were relied upon in the aforementioned Interim Decision as the basis for denying the respondent’s request that part of the Application be dismissed pursuant to s. 53(8) of the Code.

8To the extent that the applicant is merely asserting that he still stands behind the information as provided in his original Application as being accurate and truthful, then no remedy need be sought from the Tribunal. On the other hand, to the extent that the applicant is attempting to revive his original Application to stand in place of the re-drafted Application as the basis for the issues to be determined at the hearing in this matter, in my view this is inappropriate. After filing the original Application, the applicant retained legal counsel. By that time, significant issues had been identified in relation to the original Application, which were recognized by the applicant’s then legal counsel. This led to the preparation and filing of the re-drafted Application, which the applicant and his legal counsel were given a significant extension to do. Moreover, the issues as framed in the re-drafted Application were relied upon by the respondent, in withdrawing certain relief it originally had sought arising out of the original Application, and by the Tribunal, in addressing the issue raised under s. 53(8) of the Code. In my view, allowing the applicant to revive his original Application at this late stage of the proceeding as the basis for the issues to be determined at the hearing would be inappropriate and an abuse of process. Accordingly, to the extent that this is what the applicant is seeking to do, the applicant’s request is denied and the issues to be determined at the hearing will remain as framed in the re-drafted Application filed on December 5, 2011.

9The applicant further requests that an individual named Meg Hall “remain” as a named individual respondent as per his original Application, on the basis that she is alleged to have “broke[n] the law” by contacting his doctor without written authorization, and then took private and privileged information and used it to “slander” the applicant’s reputation to the insurance company to ensure that he did not receive proper coverage. The respondent objects to Ms. Hall being added as a personal respondent at this stage of the proceeding.

10In this regard, I note that the original Application as filed by the applicant identified Ms. Hall as a personal respondent, on the basis that at some unspecified point in 2009, she is alleged to have “interfered with LTD insurance company by lying to them”. When the re-drafted Application was filed on December 5, 2011, all personal respondents had been removed, leaving only the school board as the organizational respondent. This was confirmed in a Case Assessment Direction issued by the Tribunal on January 5, 2012. No explanation is provided by the applicant as to why he waited a further almost 18 months before seeking to re-add Ms. Hall as a personal respondent. In my view, at this late stage of the proceeding, it would be inappropriate to add Ms. Hall as a personal respondent, and the applicant’s request to do so is denied.

11At the same time, I note that a typewritten chronology was appended as part of the re-drafted Application, in which it is alleged that on June 9, 2009, the applicant had a conversation with his LTD insurer in which he was told that he had been “slandered” by a Board employee, “but with what she said LTD was denied”. While this would be hearsay evidence if the applicant sought to provide testimony about what he was told by the LTD insurer regarding what Ms. Hall had said, I note that the Tribunal does have discretion to allow hearsay evidence. I also note that the respondent intends to call Ms. Hall as a witness at the hearing, and so she can testify directly as to what she may have said to the LTD insurer and be cross-examined on any such testimony. These are matters that I will leave to be addressed at the hearing, including the matter of the admissibility of any evidence the applicant proposes to give regarding what he was told by the LTD insurer.

12Finally, the applicant seeks to amend his Application to request “full benefit coverage” paid for by the respondent school board, and an order requiring the respondent “to cover me for a full pension at the age of 65, with 30 years service”. The respondent takes the position that this request should be deferred to be dealt with at the hearing: see Johnson v. Ontario (Government Services), 2013 HRTO 1013.

13In the re-drafted Application, the relief sought is monetary compensation in the amount of $210,000, comprised of lost wages and compensation for emotional suffering, and reinstatement of employment.

14As has often been stated, the purpose of the Tribunal’s remedial powers is to put the applicant in the position he would have been in but for the discrimination. This has been referred to as a “make whole” remedial power. To the extent that it is found that the applicant’s rights under the Code were violated, such that his employment ought not to have been regarded as having ceased on April 23, 2010, then the Tribunal may consider requests for such things as compensation for lost benefits, including such things as health and dental benefits and pension benefits. To the extent that the Tribunal determines it to be appropriate to grant reinstatement as a remedy, reinstatement may include restoration of such benefits or the Tribunal may exercise its discretion to make an appropriate award in lieu of reinstatement. These are all matters that may be addressed at the hearing. However, to the extent that any amendment of the re-drafted Application may be required in order to make clear that the applicant is seeking compensation for loss of health and dental benefits and pension benefits, and is seeking restoration of such benefits as part of the remedies he is claiming, the applicant’s request is granted.

Request for production of documents by the respondent

15The applicant asserts that the respondent has failed to include among its productions notes of meetings at Ridpath Public School, the Board office, and Lakefield District Secondary School. The applicant states that these notes are important in order to prove that he was “singled out” by an individual named Marianne Hendren based upon a comment she is alleged to have made about having had the applicant assessed while he was in a class with 25 other custodians.

16The respondent asserts that it has complied with its obligation to produce all arguably relevant documents in its possession. Further, as additional arguably relevant documents have come to its attention, the respondent states that these have been disclosed in a timely manner. The respondent states that it does not have any notes of arguably relevant meetings apart from what already have been disclosed to the applicant. In particular, the respondent states that it does not have any notes pertaining to the specific situation referenced by the applicant in relation to Ms. Hendren, and further that Ms. Hendren does not know what the applicant is referring to and denies making a comment as alleged.

17A party is not obliged under Rule 16.1 to produce documents that do not exist. There is nothing before me to indicate that the respondent is in possession of any arguably relevant document that it has not already produced to the applicant. Accordingly, there is no basis for the order sought by the applicant. With regard to the statement alleged to have been made by Ms. Hendren, I note that the applicant may be able to provide direct evidence regarding this statement (if he was present when it was made) and also may wish to call a witness who is alleged to have been present when the comment was made. Further, I note that the respondent intends to call Ms. Hendren as a witness, and she may be asked about the alleged statement.

18I note that following the filing of the applicant’s Request for Order, the respondent made further disclosure in accordance with its continuing obligation under the Rules. In particular, the respondent disclosed electronic notes maintained by disability management staff relating to the applicant’s files dating back to 2006 and forward to 2010. In the cover letter by which these documents were disclosed, respondent counsel noted that “references to privileged communications have been redacted”. The applicant has taken issue with the redacted passages, asserting that notes of important communications have been deleted. There is simply no basis for this allegation. Under the Rules, a party is not required to disclose privileged communications, including communications with counsel that are protected by solicitor-client privilege. Where, as here, a document includes both non-privileged communications as well as privileged communications, a party is entitled to delete or “redact” the portions of the document that relate to privileged communications. This is all that was done by respondent counsel.

19The applicant particularly seems to be concerned that the alleged communication between Ms. Hall and the LTD insurer was deleted or redacted from these notes. Such communications would not be subject to privilege and would not have been deleted or redacted. There is no basis to indicate the contrary. Moreover, based upon a review of the document itself, it is demonstrably not the case that such communications were deleted or redacted. As recorded in the notes, the LTD package was sent out to the applicant on February 24, 2009. A later note indicates that the LTD insurer received the applicant’s LTD package on April 7, 2009. The document includes reference to several discussions during this time period between Ms. Hall and a representative of the LTD insurer named “Rhonda”, including communications on April 2, 9 and 29 and May 14, 2009. None of these notes are redacted. The notes further indicate that the denial letter was received from the LTD insurer on May 28, 2009. This is the period when the applicant alleges that he was “slandered” by Ms. Hall to the LTD insurer, and none of these notes have been redacted. Accordingly, there is no basis upon which the applicant properly can assert that any relevant, non-privileged notes have been redacted.

Request for production of documents from CUPE

20As stated above, by Interim Decision dated January 10, 2013, CUPE was granted intervenor status in this proceeding and was ordered to make disclosure of all arguably relevant documents in its possession within 21 days of the date of that decision. The applicant served his Request for Order seeking production from CUPE on June 10, 2013. It was only after that time that CUPE withdrew its request to intervene.

21Notwithstanding that CUPE is no longer a party to this proceeding, this Tribunal has the power to order production from a non-party: see Rule 1.7(p). I am satisfied that CUPE received notice of the applicant’s Request for Order. Further, CUPE already was subject to an order of this Tribunal to make disclosure of all arguably relevant documents in its possession, pursuant to which it made disclosure on January 21, 2013.

22CUPE did not respond to the applicant’s Request for Order. I have reviewed the material disclosed by CUPE on January 21, 2013, and note that the disclosure provided does not include actual meeting notes. The applicant’s request is that CUPE be ordered to disclose all notes that CUPE representatives may have made regarding meetings at Ridpath Public School, the Board office, and Lakefield District Secondary School. In particular, the applicant states that a CUPE representative named Paul Bromley may have notes of a meeting with Ms. Hendren at which Ms. Hendren is alleged to have said that she had the applicant assessed by an instructor when he was in training to become a supervisor and that this gave her the right to take away the applicant’s medical accommodation. To the extent that CUPE is in possession of any such notes, or is in possession of notes of any other meetings relating to the applicant during the relevant period from June 22, 2006 to April 23, 2010, CUPE is ordered to disclose all such documents to the applicant and the respondent within 10 calendar days of the date of this Decision. If CUPE does not have any such documents, then within this time period it shall confirm that it made reasonable inquiries and has no such documents.

Alleged “impropriety” by respondent

23The applicant asserts that the respondent, in making its disclosure to him pursuant to the Rules, committed an “impropriety” by using a file given to it by him as part of a proceeding before the Ministry of Labour. He also asserts that the respondent has used letters and notes alleged to have been stolen by his uncle, George Mackay.

24Pursuant to Rule 16.1, all parties have an obligation to disclose to each other all arguably relevant documents in their possession. These documents are only shared as between the parties, and are not required to be filed with the Tribunal at that time. Further, disclosure of a document does not indicate an intention by a party to use or rely upon that document as evidence at the hearing. Documents that a party intends to use and rely upon at the hearing are only identified and filed with the Tribunal at a much later time, namely 45 days prior to the first day of hearing.

25In this case, it appears that as a result of some other proceeding involving the Ministry of Labour, the respondent had in its possession documents that had been disclosed by the applicant for the purpose of that proceeding. To the extent that such documents may have been “arguably relevant” to a matter at issue in this proceeding, it may have been the respondent’s obligation to disclose these documents. But in my view, that does not mean that the respondent “used” these documents for the purpose of this proceeding. As noted by the respondent, these were documents in the applicant’s possession, which he himself had an obligation to disclose in the context of this proceeding, to the extent that they are arguably relevant. No issue has been raised as to the propriety of any documents actually filed by the respondent for use at the hearing in this matter. If there is any such issue, it may be raised at the hearing.

26The same applies with regard to any documents provided to the respondent by the applicant’s uncle. If the respondent seeks to use or rely upon any such document at the hearing in this matter, the applicant may raise any issue regarding the provenance of such document and such issue may be addressed at that time.

Respondent’s Request for Order

27On July 17, 2013, the respondent filed a Request for Order seeking: (1) an order directing the applicant to produce to the respondent on the first day of hearing all original copies of the medical notes of Dr. Rayes; and (2) an order directing the applicant to forthwith sign and return consent forms permitting the respondent to obtain copies of medical records from Dr. Rayes and Dr. Adel.

28The basis for the former request is concern expressed by the respondent that: the notes produced from Dr. Rayes show a lack of consistency in terms of fonts, form and style; on three occasions, two notes were dated on the same day but said different things and used different fonts and/or formats; and the style and language in some of the notes is quite different from other notes and includes spelling and grammatical errors not consistent with other notes. The basis for the latter request is that the applicant has clearly put his medical condition in issue in this Application, such that what the applicant told these doctors and what they based their diagnoses and requests for accommodation on are relevant to this proceeding.

29The applicant requested and was granted an extension to August 15, 2013 in order to file his response to the respondent’s requests. Appended to the applicant’s response are the notes at issue, which he states have been signed as authentic by Dr. Rayes and Dr. Adel. The applicant also asserts that Dr. Rayes offered to speak to or send medical records to a doctor of the employer’s choice, but the employer refused.

30I will deal first with the respondent’s request for the applicant to sign consents authorizing his doctors to disclose medical records to the respondent relating to the period from June 22, 2006 to April 24, 2010. There is no question that a central matter at issue in this proceeding relates to the applicant’s medical condition, whether there is evidence establishing that the applicant has a “disability” within the meaning of the Code, and if so, what if any accommodations were required as a result of any such disability and on what basis. The medical records maintained by Dr. Rayes and Dr. Adel are clearly relevant to these issues. Where an applicant has put his medical condition in issue in a proceeding, as the applicant has done in this case, a respondent is not required merely to rely upon medical notes that may have been provided to it at the time, but is entitled to production of all arguably relevant medical records from the doctors’ files: see for example Buttar v. Hamilton Regional Police Service, 2012 HRTO 1750.

31As I stated in Buttar, in the normal course an applicant who has put her or his medical condition in issue in a proceeding ought to obtain from her or his treating physician(s) all arguably relevant medical records in their possession and disclose these records in a timely manner to the respondent. If the respondent is not satisfied with the disclosure of medical records, then it should make a timely request for the applicant (or the physicians) to be ordered to make such disclosure. However, this Tribunal also in appropriate circumstances has the power to order a party to sign a consent for the release of medical records: see for example Docherty-Skippen v. McMaster University, 2012 HRTO 1254.

32Given the proximity of the hearing in this matter and the fact that the applicant is not represented by legal counsel, it is my view that it is appropriate in the circumstances to require the applicant to sign the consents authorizing Dr. Rayes and Dr. Adel to disclose their medical records directly to the respondent. I have reviewed the release forms appended to the respondent’s Request for Order, and find that they are reasonable and are appropriately restricted to the relevant time period from June 22, 2006 to April 24, 2010. Accordingly, the applicant is hereby ordered to sign the consents as appended to the respondent’s Request for Order and return signed copies to respondent counsel within five calendar days of the date of this Decision. I note that the consents as appended to the Request for Order filed with the Tribunal are both directed to Dr. Rayes. My understanding from the respondent’s request is that it also is seeking consent to disclosure of medical records from Dr. Adel. Accordingly, if the applicant was not provided with a copy of a consent form for Dr. Adel, the applicant is ordered to strike out the name and address for Dr. Rayes where it appears at the top of the consent form and substitute the name and address for Dr. Adel, and to strike out Dr. Rayes’ name where it appears in the first line of the actual consent and insert Dr. Adel’s name in its place.

33Forthwith, upon receipt of the medical records from Dr. Rayes and Dr. Adel, the respondent is ordered to provide a copy of all such medical records to the applicant and to file all such medical records with the Tribunal.

34If the applicant refuses to sign the consent forms as ordered in this Decision, I will consider any appropriate relief as may be requested by the respondent, up to and including potential dismissal of the Application for abuse of process.

35With regard to the respondent’s first request, it is my view that a party is entitled, upon request and where reasonable, to inspect or examine the original copies of documents that have been produced by an opposing party. Accordingly, the applicant is ordered to bring the original copies of all medical notes from Dr. Rayes to the first day of the hearing in this matter, for inspection and examination by the respondent and its counsel. In making this order, I am not suggesting any impropriety on the applicant’s part in relation to these notes. Rather, I am stating that as a matter of general principle, a party is entitled to examine original copies of documents produced by an opposing party.

Pre-hearing obligations

36Pursuant to Rules 16 and 17 of the Tribunal’s Rules of Procedure, each party is required to deliver to the other parties and file with the Tribunal the following material not less than 45 days prior to the first scheduled hearing day:

a. A list of all documents upon which the party intends to rely at the hearing;

b. A copy of each document contained on the list; and

c. A list of all witnesses the party intends to call at the hearing, including a brief statement summarizing each witness’ expected evidence.

37In correspondence from the Tribunal dated February 22, 2013, the parties were reminded of these obligations and were to have delivered this material to the other parties and filed this material with the Tribunal by no later than August 9, 2013.

38To date, the applicant has not complied with these obligations.

39Accordingly, by no later than 10 calendar days from the date of this Decision, the applicant is ordered to deliver to respondent counsel and file with the Tribunal the following material:

a. A list of all witnesses, including himself, that he intends to call to give evidence at the hearing;

b. A statement of each witness’ expected evidence. Each statement should set out the witness’ evidence on all relevant areas to which it is proposed that they testify. For the applicant, if he is simply relying upon the information provided in the re-drafted Application, this can simply be confirmed. If there are any additional areas about which he proposes to give evidence, then this needs to be stated; and

c. A list of all documents or materials upon which he intends to rely at the hearing, together with a copy of these documents and materials.

40If the applicant fails to serve and file these materials within the time period indicated, this Application may be dismissed as abandoned.

41Any prejudice caused by the late disclosure and filing of these materials may be addressed at the hearing.

Need for courtesy and civility in all correspondence

42In a Case Assessment Direction dated March 19, 2013, I reminded all parties of the need to maintain courtesy and civility in their communications with each other and with the Tribunal. I draw the parties’ attention to Rule 1.12.1 of the Rules, which requires that all materials filed with the Tribunal must be courteous and respectful of the Tribunal and other participants.

ORDER

43For the foregoing reasons, I hereby make the following order:

a. To the extent that the applicant is seeking to revive his original Application, the applicant’s request is denied and the issues to be determined at the hearing will remain as framed in the re-drafted Application filed on December 5, 2011;

b. The applicant’s request to add Meg Hall as a personal respondent is denied;

c. To the extent that any amendment of the re-drafted Application is required in order to make clear that the applicant is seeking compensation for loss of health and dental benefits and pension benefits, and is seeking restoration of such benefits as part of the remedies he is claiming, the applicant’s request is granted;

d. The applicant’s request for further production from the respondent is denied, as is the applicant’s request for an unredacted copy of the electronic notes maintained by disability management staff relating to the applicant’s files dating back to 2006 and forward to 2010;

e. Within 10 calendar days of the date of this Decision, CUPE shall disclose to the applicant and the respondent all notes that CUPE representatives may have made regarding meetings at Ridpath Public School, the Board office, and Lakefield District Secondary School relating to the applicant during the period from June 22, 2006 to April 23, 2010, including but not limited to any notes made by Paul Bromley regarding a meeting with Ms. Hendren at which Ms. Hendren is alleged to have said that she had the applicant assessed by an instructor when he was in training to become a supervisor and that this gave her the right to take away the applicant’s medical accommodation. If CUPE does not have any such documents, then within this time period it shall confirm that it made reasonable inquiries and has no such documents;

f. Within five calendar days of the date of this Decision, the applicant shall sign the consents for disclosure of medical records from Dr. Rayes and Dr. Adel as appended to the respondent’s Request for Order and return signed copies to respondent counsel, with any necessary changes as described above in the event that no consent was provided for Dr. Adel;

g. Forthwith, upon receipt of the medical records from Dr. Rayes and Dr. Adel, the respondent shall provide a copy of all such medical records to the applicant and file all such medical records with the Tribunal;

h. The applicant shall bring the original copies of all medical notes from Dr. Rayes to the first day of the hearing in this matter, for inspection and examination by the respondent and its counsel; and

i. Within 10 calendar days from the date of this Decision, the applicant shall deliver to respondent counsel and file with the Tribunal the following material:

i. A list of all witnesses, including himself, that he intends to call to give evidence at the hearing;

ii. A statement of each witness’ expected evidence. Each statement should set out the witness’ evidence on all relevant areas to which it is proposed that they testify. For the applicant, if he is simply relying upon the information provided in the re-drafted Application, this can simply be confirmed. If there are any additional areas about which he proposes to give evidence, then this needs to be stated; and

iii. A list of all documents or materials upon which he intends to rely at the hearing, together with a copy of these documents and materials.