J.H. v. Rainbow District School Board, 2013 HRTO 1498

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

J.H. on behalf of his next friend J.H.

Applicant

-and-

Rainbow District School Board – The Gord Ewin Centre

Respondent

INTERIM DECISION

Adjudicator: Maureen Doyle, Eva Nichols

Date: September 6, 2013

Citation: 2013 HRTO 1498

Indexed as: J.H v. Rainbow District School Board

WRITTEN SUBMISSIONS

J.H., Applicant

Jamie Lynne McGinnis, Counsel

Rainbow District School Board – The Gord Ewin Centre, Respondent

Brenda Bowlby, 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 services because of disability.

2The respondent filed a Request for an Order During Proceedings on August 15, 2013, seeking orders as follows:

• That the applicant may not call Dr. Sean Murray as a witness;

• In the alternative, if the Tribunal decides to permit Dr. Murray, that it be on condition that a more fully particularized outline of his evidence be provided along with copies of all his notes and records pertaining to J.H.; and

• An Order that the applicant immediately provide full disclosure of all arguably relevant documents in his possession or control and that he obtain and disclose the following documents over which he has control; all notes, charts, and records of other agencies involved with J.H., including i) Child Care Resources; ii) Sudbury Regional Hospital (including the Hospital’s Emergency Department); iii) the local CAS; iv) Child and Family Centre; v) Children’s Community Network.

3The applicant requested an extension in order to provide his Response to the RFOP and an extension was granted until noon, September 4, 2013.

4The applicant objects to the respondent’s requests. He submits that Dr. Murray should be permitted to testify as his testimony is relevant, but that Dr. Murray will be testifying as an ordinary witness “on his knowledge and observations as the applicant’s son’s treating physician”. Accordingly, he submits that the witness statement already provided for Dr. Murray is sufficient. Further, he submits that a request for all of Dr. Murray’s notes and medical records relating to J.H. is overly broad. He submits that should the Tribunal determine that the applicant’s medical files should be disclosed, an appropriate time frame would be records from “October 2012 to June 2012” [sic].

5The applicant also objects to the respondent’s request for production from five different agencies that have dealt with J.H. through his life. He submits that it is a “fishing expedition” and that at this stage of the proceedings, to grant the Order would result in delay.

Dr. Murray’s Evidence

6The applicant alleges discrimination on the basis of a disability and proposes to call his son’s treating physician as a witness. In these circumstances, we find that it is appropriate for the applicant to call Dr. Murray as a witness, and we deny the respondent’s request to exclude him from testifying.

7The applicant has provided a brief statement, including several very general statements, of the evidence he intends to elicit from Dr. Murray. Though in his Response to the RFOP, the applicant submits that Dr. Murray is being called “as a factual witness”, much of the evidence he proposes to call from Dr. Murray is in the nature of opinion and on the basis of the “will-say” provided, it appears that he seeks to call Dr. Murray as an expert witness. Accordingly, the applicant is ordered to comply with s. 17.3 of the Tribunal’s Rules of Procedure in respect of Dr. Murray.

8The respondent also seeks production of medical records and notes pertaining to J.H. from Dr. Murray. We agree with the applicant that the request as stated is overly broad, but we find that it is appropriate to order production of further medical documentation. Though the applicant has proposed the time frame of October 2012 to June 2012 [sic], we are not persuaded that such a timeframe is sufficiently inclusive, given the fact that the application centres around an incident which is alleged to have occurred in November 2011 at school. Additionally, we note that the applicant has included in his Disclosure of Documents upon which he intends to rely, a series of medical assessments and reports from various specialists commencing February 27, 2009. Accordingly, we order that the applicant produce notes and records from Dr. Murray pertaining to J.H. from January 2009 to June 30, 2012.

Documentation from Other Agencies

9The parties have made very brief submissions regarding whether an order should be made with respect to production of documentation from other agencies. Fuller oral submissions regarding whether such documentation is arguably relevant will be of assistance to us in our decision-making regarding this issue. Accordingly, the Registrar will schedule a two hour telephone conference call in order for the parties to make their submissions and to answer any questions the panel may have regarding this issue.

Other

10In view of the Order for compliance with Rule 17.3 and the Order for production of medical documentation and in view of the need for oral submissions regarding the production of documentation from other agencies, it is not practicable to convene this hearing on the dates currently scheduled. Accordingly, the hearing dates of September 9, 10 and 11, 2013 are adjourned.

11The applicant has now also filed an RFOP requesting that Dr. Murray be permitted to provide his evidence by telephone. Should the applicant be requesting that Dr. Murray be permitted to provide his evidence by telephone on a rescheduled date, the parties will also address this question at the above-referenced teleconference in this matter.

Orders

12The Tribunal Directs as follows:

1. The applicant is permitted to call Dr. Murray as an expert witness.

2. The applicant is directed to comply with the requirements of Rule 17.3 in respect of Dr. Murray.

3. The applicant is directed to provide disclosure of Dr. Murray’s notes and records regarding J.H. from January 2009 to June 2012.

4. The Registrar will schedule a two-hour telephone conference call at which time the parties will make their submissions regarding the arguable relevance of the notes and records of the other named community agencies in respect of J.H.

5. The hearing dates of September 9, 10 and 11, 2013 are adjourned.