Couture v. Thunder Bay District Social Services Administration Board, 2013 HRTO 1555

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Crystal Couture

Applicant

-and-

Thunder Bay District Social Services Administration Board, Terry Flaherty, Lynda DaCosta and William Bradica

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: September 16, 2013

Citation: 2013 HRTO 1555

Indexed as: Couture v. Thunder Bay District Social Services Administration Board

WRITTEN SUBMISSIONS

Crystal Couture, Applicant

Self-represented

Thunder Bay District Social Services Administration Board, Terry Flaherty, Lynda DaCosta and William Bradica, Respondents

Mandy Fricot and Mary Chambers, Counsel

The Corporation of the City of Thunder Bay and Jennie Clarke, Affected Parties

Allan McKitrick, 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 disability. The applicant alleges that the respondents failed to accommodate her disability related needs appropriately and harassed her regarding her need for accommodation.

2This Interim Decision deals with the respondents’ request that (i) they be permitted access to the applicant's medical records held by the Corporation of the City of Thunder Bay (the “City”), (ii) the applicant’s allegations of systemic discrimination be deferred, (iii) the Tribunal direct the applicant to provide particulars regarding her systemic discrimination claims.

THE REQUEST FOR ACCESS TO EMPLOYEE HEALTH FILE

3Some background facts are helpful to understand the context of the respondents’ request for access to the applicant’s employment related medical records. The applicant is a caseworker in the Ontario Works program in the City of Thunder Bay. When the applicant was first hired as an Ontario Works caseworker she was an employee of the Corporation of the City of Thunder Bay. The organizational respondent, which provides social services programs in the District of Thunder Bay, assumed control of the Ontario Works program on or about January 1, 2009 and the applicant became an employee of the organizational respondent at that time. After January 2009, the City provided the organizational respondent with health and disability management services and retained the employees’ employee health files. Jennie Clarke was a health nurse employed by the City until her retirement in the spring of 2012 and was involved in the management of the applicant’s accommodation requests.

4The respondents’ request for access to the applicant’s employee health file is in two parts. First, the respondents request an order directing and authorizing Ms. Clarke to disclose to the respondents those portions of confidential conversations with the applicant that are necessary to respond to allegations made against Ms. Clarke in the Application. Second, the respondents seek an order directing that either:

1. The Applicant obtain and produce to the respondents those portions of the applicant’s employee health file and Ms. Clarke’s notes and records that are necessary to respond to the allegations made against Ms. Clarke in the Application; or,

2. Ms. Clarke and the City produce to the respondents those portions of the applicant’s health file and Ms. Clarke’s notes and records that are necessary to respond to the allegations made against Ms. Clarke in the Application.

5The respondents submitted that the Application contains several allegations regarding statements attributed to Ms. Clarke in her discussions with the applicant regarding the applicant’s accommodation needs. The respondents submitted that given Ms. Clarke’s role such conversations are likely confidential. The respondents submit that they will be unable to respond to the allegations regarding Ms. Clarke’s discussions with the applicant unless they can speak to Ms. Clarke about these discussions and unless they have access to Ms. Clarke’s notes and records, if any, regarding these discussions.

6The parties participated in mediation on May 6, 2013, but were unable to resolve the matter. By letter dated July 2, 2013, counsel for the respondents sought to amend their request to include (i) an order authorizing and directing Ms. Clarke to disclose to the respondents all confidential conversations she had with the Applicant and (ii) an order directing that copies of the applicant’s employee health file, any of Ms. Clarke’s notes and records and any other relevant documents that are in the possession of the City or Ms. Clarke be provided to the respondents. The respondents submitted that the matter would proceed to hearing following the unsuccessful mediation and therefore sought to amend their request rather than file a second request. By letter dated August 9, 2013, respondents’ current counsel confirmed that the respondents’ seek disclosure of the applicant’s entire health file because it is relevant and is required in order for the respondents to fully respond to the Application.

7The applicant opposes the respondents’ request. The applicant submitted that she provided confidential medical information to Ms. Clarke because she understood that Ms. Clarke’s role was to assist her in return to work, when in fact Ms. Clarke represented management and used this information against the applicant. The applicant also submitted that she has significant concerns regarding the confidential nature of the information contained in her employee health file and submitted that the respondents have inappropriately disseminated her confidential information in the past. The applicant also submitted that the respondents’ request amounts to an attempt to circumvent the normal rules of disclosure to gain an advantage in these proceedings and to use her medical information against her. The applicant submitted that the Tribunal should, at most, permit Ms. Clarke to disclose her conversations regarding the incidents in question, but not allow access to her medical files.

8By Case Assessment Direction dated July 22, 2013, the Tribunal invited the City and Ms. Clarke to make submissions regarding the respondents’ request. The City filed written submissions on August 14, 2013 and Ms. Clarke advised by e-mail message of the same date that she adopted the City’s position. The City stated that it took no position regarding the request, but requested that the Tribunal make orders that would permit them to disclose and discuss the applicant’s employee health file. The City also requested the Tribunal to order a variety of clarifications and procedures regarding the City’s and Ms. Clarke’s involvement in the Application. The City noted that Ms. Clarke advised that she will be travelling abroad until the first week of November 2013.

DECISION

9In Dewdney v. Toronto Transit Commission, 2012 HRTO 2212, the Tribunal considered the operation of Personal Health Information Protection Act, 2004 S.O. 2004, c. 3, Sched. A (PHIPA) and the Occupational Health and Safety Act, R.S.O. 1990, c O.1, which restricts an employer’s access to an employee’s health records. In Dewdney, the Tribunal concluded that if the health records are arguably relevant to the issues before the Tribunal and if the respondent is the applicant's employer, access to the health records can be granted on the consent of the applicant or by order of the Tribunal. In making such an order, the Tribunal can impose conditions to help protect the confidentiality of the records. In addition, Rule 3.3 of the Tribunal’s Rules of Procedure states:

Parties and their representatives may not use documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal.

10The applicant has indicated that she has serious concerns regarding the respondents’ ability to maintain the confidentiality of her medical records. I appreciate the applicant’s concerns regarding confidentiality, but she has commenced a legal action against the respondents which puts the nature and extent of her disability in issue and also puts in issue the measures taken by the respondent to accommodate her disability. This includes any conversations she had with Ms. Clarke in her capacity of health nurse regarding returning to work and accommodation needs. The applicant’s employee health file contains documents relating to the issues that the applicant has put into issue in the Application. The applicant submitted that the respondents seek early disclosure of her medical records to gain an advantage in these proceedings. Given the nature of the applicant’s allegations, the applicant’s employee health file appears to be arguably relevant; therefore, the applicant shall have to disclose it in any event pursuant to Rule 16.1 of the Tribunal’s Rules of Procedure (the “Rules”). Having said that, it is in my view appropriate to grant the respondents narrow access to the applicant’s health records at this point in the proceedings.

11The respondents’ original request was limited to allowing them to access the information necessary to respond to allegations relating to Ms. Clarke. The respondents have subsequently filed a Response that provided a thorough and detailed account of the respondents’ position and their efforts to accommodate the applicant. Accordingly, the respondents have been able to make a full response to all of the applicant’s allegations except for those related to Ms. Clarke and allegations of systemic discrimination (discussed below). In these circumstances, full disclosure of the applicant’s employee health file is premature and unnecessary at this time and in my view it is appropriate to restrict the respondents’ access to medical information to that which is needed to respond to the allegations regarding Ms. Clarke.

12The City requested the Tribunal order elaborate procedures to effect the delivery of information from the applicant’s employee health file to the respondents and setting parameters for discussions between Ms. Clarke and the respondents. In my view, such procedures are unnecessary. As in any litigation, the respondents are entitled to speak to or attempt to speak to any potential witness, such as Ms. Clarke, and potential witnesses are free to speak with the respondent – or not. I see no reason to deviate from this norm and for that reason I decline to require Ms. Clarke to speak to the respondents. The City also requested that the Tribunal grant it the right to participate in these proceedings with respect to the procedures it recommended and to assist Ms. Clarke. I decline to do so, as I have denied the City’s request regarding the procedures it proposes and the City is in my view free to assist Ms. Clarke if she requests assistance. The City may seek intervenor status if it wishes to participate in these proceedings beyond meeting the requirements of the Tribunal’s order, below.

DEFERRAL AND PARTICULARS OF THE APPLICANT’S SYSTEMIC CLAIMS

13The respondents note that the applicant made allegations of systemic discrimination in two places in her Application, but provided no particulars regarding these allegations. Specifically, the respondents submitted that the applicant referred to unnamed employees and gave no date or other details regarding incidents that she alleges amount to systemic discrimination. The respondents submit that the Tribunal should either defer dealing with allegations of systemic discrimination pending the outcome of the Applicant’s allegations of personal harassment or order particulars sufficient to allow the organizational respondent to respond to these allegations.

DECISION

14The Tribunal may defer consideration of an application on such terms as it may determine, on its own initiative or at the request of any party, pursuant to section 45 of the Code and Rule 14.1 of the Rules. The Tribunal will generally defer an application where there is ongoing litigation based on the same facts to ensure that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. The respondents identified no other proceedings dealing with the systemic issues raised in the Application and the applicant specifically noted that she decided not to file a grievance with her union in order to pursue this matter before the Tribunal. Accordingly, there is no basis for deferring any part of the Application.

15The respondent submitted that the applicant made allegations of systemic discrimination on the basis of mental health disability at Section 20 of the Application “Other Important Information the Tribunal Should Know” and at Question A10 “Is your Application about a workplace policy”. In my view, the applicant does make allegations of systemic discrimination by the organizational respondent in her responses in Section 20 and Question A10 of the Application. The applicant refers to incidents where another employee with a cognitive disability was dismissed and incidents that indicate that the organizational respondent is generally unconcerned with the mental health of its employees. For example, the applicant alleged that the respondent only allows for debriefing of crisis incidents at the end of the work day, time permitting. The applicant also made allegations that the organizational respondent’s human rights policies are a pretense and that in practice the organizational respondent’s true position is that it does not believe in accommodating mental health issues. The applicant asserts that she had internal e-mails confirming this “hidden policy” and that a co-worker can provide a letter to confirm the organizational respondent’s actual practice regarding accommodation. The applicant also asserted that a member of the organizational respondent’s Board of Directors stated that a complaint she filed (of harassment and failure to accommodate) was “not their issue”.

16Of these allegations, the only allegation lacking sufficient particulars is that pertaining to a co-worker dismissed, ostensibly because of his cognitive disability. The respondent cannot reasonably be expected to respond to this allegation without knowing the identity of the employee in question, when the incident occurred and why the applicant believes the dismissal was discriminatory. On the other hand, the respondent ought to be able to respond to allegations that it does not follow its own policies and that its Board of Directors is unconcerned with human rights complaints. The applicant shall be required to produce the evidence she intends to rely upon to prove these allegations pursuant to Rules 16 and 17 of the Rules.

COMPLIANCE WITH THE RULES

17Finally, I note that Rule 19, Request For An Order During Proceedings, indicates that a party may request an order from the Tribunal at any time by filing a Form 10 and parties responding to such a request may file a Form 11. Rule 19 does not contemplate further submissions after the responding party files a Form 11 and in my view it will be the rare case where such additional submissions would be necessary or appropriate. In this case, the parties both filed two additional responses after the applicant filed her Form 11 to the respondents’ request regarding matters that in my view had no bearing on the respondents’ request. Consequently, these submissions were of no assistance to the Tribunal in deciding the respondent’s request and amounted to a significant waste of resources for all concerned. While I appreciate that the parties have strong feelings about this Application, they must comply with the Tribunal’s Rules and conduct themselves in a professional and constructive manner.

18The Tribunal orders the following:

1. The City is ordered to review the applicant’s employee health file and Ms. Clarke’s notes and records in its possession from January 1, 2009 and onwards and to provide to the respondents’ counsel copies of any notes or records in respect of and only in respect of the confidential conversations Ms. Clarke had with the applicant pertaining to allegations raised in this Application about Ms. Clarke;

2. The City, its personnel and its counsel are authorized to do anything necessary to meet its obligations set out in para 12(1), above;

3. The respondents shall provide a copy of the Application to the City and shall identify (e.g., by highlighting) each and every reference to Ms. Clarke in the Application;

4. The respondents are required to promptly provide the applicant with a copy of the documents it obtains pursuant to para 12(1). The respondents are also required to confirm with the Tribunal that the disclosure was delivered to the applicant;

5. Ms. Clarke is authorized to discuss with respondents and respondents’ counsel the confidential conversations she had with the applicant that are related to the allegations in this Application referring to Ms. Clarke;

6. Ms. Clarke is authorized to discuss with respondents and respondents’ counsel documents obtained from the applicant’s employee health file as identified in para. 12(1);

7. The respondents’ counsel, individuals giving instructions to counsel, and Ms. Clarke are the only individuals permitted to access, review and use the applicant’s health information as identified in para. 12(1);

8. Counsel for the respondents is required to state and confirm with all individuals with whom the health information is canvassed that the individuals are required to strictly maintain confidentiality of the information;

9. The parties are reminded of their obligations under Rule 3.3;

10. The respondents’ request for deferral is denied;

11. Within 14 days of the date of this Interim Decision, the applicant shall provide to the respondent particulars of her allegations in Section 20 of her Application regarding the alleged dismissal of a co-worker with a cognitive disability; and

12. In light of Ms. Clarke’s absence, the respondents may file an Amended Response not later than November 29, 2013 and the applicant may file an Amended Reply within 14 days of receiving the respondents’ Amended Response.