HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Keron James
Applicant
-and-
Workplace Safety and Insurance Board, Frances Lord and CSH Wenleigh LTC Inc.
Respondents
INTERIM DECISION
Adjudicator: Jennifer Scott
Indexed as: James v. Workplace Safety and Insurance Board
WRITTEN SUBMISSIONS
Keron James, Applicant
Krishna Badrinarayan, Representative
Workplace Safety Insurance Board and Frances Lord, Respondents
Eric Kupka, Counsel
CSH Wenleigh LTC Inc. Respondent
Pamela Leiper, Counsel
Introduction
1This is an Application filed on September 2, 2011 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges she was discriminated against on the basis of her race and disability in a return to work meeting attended by her employer CSH Wenleigh LTC Inc. (“Wenleigh”) and Frances Lord (“Lord”), a return to work specialist with the Workplace Safety Insurance Board (“WSIB”). A hearing has been scheduled for June 3 and 4, 2013.
2This Interim Decision deals with two Requests for Order During Proceedings (“RFOP”). The first Request, filed by Wenleigh, is to amend the style of cause to name the correct corporate respondent. The Application originally named Southrim Management Company Limited as the applicant’s employer. Wenleigh is the employer’s correct corporate name. The other respondents consent to the amendment. The applicant did not respond to this RFOP.
3In determining whether to permit an amendment, the Tribunal will consider the stage at which the request is made, the nature of the amendment and any prejudice caused by the amendment. See Hill v. Specturm Telecom Group, 2010 HRTO 2066. The amendment is of a technical nature to ensure the correct corporate employer is named. The amendment was requested at the same time as the employer’s Response to the Application was filed. There is no prejudice to the applicant in allowing the amendment. For these reasons, the style of cause is amended to reflect Wenleigh as the correct corporate employer.
4The second RFOP has been filed by the applicant. The applicant requests the following orders:
a. To strike paragraph 10 and exhibit 3 referred to in that paragraph, in Wenleigh’s Response to the Application;
b. To amend the remedy requested in the Application;
c. To remove, strike and seal Mr. Kenneth Jeffrey’s notes.
5In subsequent correspondence, dated December 9, 2012, the applicant sought direction as to how privileged medical documentation will be dealt with by the Tribunal.
6WSIB and Lord take no position on the applicant’s RFOP. Wenleigh takes no position on the request to amend the remedy in the Application, but opposes the applicant’s request to strike paragraph 10 and exhibit 3 of its Response and remove strike and seal Mr. Jeffrey’s notes.
7The applicant’s RFOP and the issue of privileged documentation will be dealt with at the hearing by the Vice-chair or member assigned to hear the Application. That person is in the best position to determine the admissibility of evidence, issues regarding privilege and requests to seal information. These questions should not be determined in a factual vacuum and are best decided during the course of the hearing when the admissibility of such evidence is in issue. This ruling has already been made by the Tribunal regarding Kenneth Jeffrey’s notes. In the Interim Decision dated June 20, 2012, the Tribunal ruled the admissibility of Kenneth Jeffrey’s notes would be determined during the hearing process, meaning during the hearing itself.
8Similarly, the Vice-chair/member assigned to hear the case will decide whether paragraph 10 and exhibit 3 of Wenleigh’s Response should be struck. Adjudicators frequently review documents that are not admitted into evidence for a variety of reasons and are required to disregard information that is not in evidence before them. There is no need to determine these issues in advance of the hearing and it is not fair, just or expeditious to do so.
Dated at Toronto, this 29th day of January, 2013.
”signed by”
Jennifer Scott
Vice-chair