Downey v. Sandy Acres Resort, 2013 HRTO 1632

Human Rights Tribunal of Ontario

Between:

Bryan Downey by his Litigation Guardian Adele Downey Applicant

-and-

Sandy Acres Resort and Laila Hillo Respondents

And Between:

Mercedes Corpez Applicant

-and-

Sandy Acres Resort and Laila Hillo Respondents

And Between:

David White Applicant

-and-

Sandy Acres Resort and Laila Hillo Respondents

Interim Decision

Adjudicator: Ruth Carey Date: September 27, 2013 Citation: 2013 HRTO 1632 Indexed as: Downey v. Sandy Acres Resort

Written Submissions

Bryan Downey by his Litigation Guardian Adele Downey, Mercedes Corpez, and David White, Applicants Esmaeil Mehrabi, Counsel

Sandy Acres Resort and Laila Hillo, Respondents Joy-Ann Cohen, Counsel

Introduction

1These Applications are filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The Application filed by Bryan Downey alleges discrimination with respect to goods, services and facilities because of disability. The applicant, Mercedes Corpez, provides part-time personal care services to Bryan Downey; and the applicant, David White, is the domestic partner of Ms. Corpez. Mr. White and/or Ms. Corpez own a trailer and rented a site lot for it from the corporate respondent, a seasonal trailer park. The personal respondent is a co-owner of the trailer park with her husband. The Applications filed by Ms. Corpez and Mr. White allege discrimination with respect to contracts, and goods, services and facilities because of association with a person identified by a protected ground. Essentially the Applications allege that the respondents harassed the Applicants because of Mr. Downey's disability and then refused to renew the lease for their trailer's site lot.

3On September 6, 2012, the Tribunal issued an Interim Decision consolidating the Applications in 2012 HRTO 1683.

4On September 10, 2013, the respondents filed a Request for an Order During Proceedings ("RFOP"). On September 23, 2013, the applicants responded to the RFOP. This Interim Decision addresses the requests for orders contained in the RFOP.

Analysis

5The RFOP asks for orders:

• For production of various records including medical records and other documents that witnesses may have;
• Requiring the applicant's (Mr. Downey's) physician to give evidence and be cross-examined;
• For particulars with respect to a videotape provided by the applicants;
• Striking part of the remedy sought in the Application of Ms. Corpez;
• Amending the Responses filed by the respondents;
• For consolidation of the Applications with respect to the Responses;
• For procedural directions; and
• For an order requiring the Tribunal to receive into evidence certain information about another and separate proceeding.

6For the reasons stated below, the RFOP is granted in part with respect to some production of medical records concerning Mr. Downey, the correction by amendment of the Responses of a factual error, and the striking of a requested remedy in Ms. Corpez's Application on consent. In all other respects the RFOP is denied.

The Requests with Respect to Productions

7The respondents seek production of Bryan Downey's medical records. I would summarise the stated reasons in the RFOP for requesting production of medical records as follows: the cause of the acquired brain injury may be relevant as it allegedly involved alcohol and one of the disputed facts in the Applications is whether or not Mr. Downey was consuming alcohol on the grounds of the trailer park; some of the facts alleged by both parties relate to specifics of Mr. Downey's behaviour which may or may not be related to his brain injury; and part of the respondents' position is that Ms. Corpez provided inadequate care to Mr. Downey and the medical records might contain information concerning the level of care Mr. Downey needs.

8The applicants oppose production of Mr. Downey's medical records on the basis that they are not relevant to any of the issues in the Applications and the applicant, Mr. Downey, has no medical records in his possession to produce.

9The respondents' request for production of medical documents is granted in part for the reasons stated below.

10The legal test for production of documents is not high. In Lampi v. Princess House Products Canada Inc., 2008 HRTO 1, the Tribunal stated at paragraphs 8 and 9:

The threshold for production and disclosure of documents before the Tribunal is "arguable relevance" – not a particularly high bar. There must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Tribunal: Neusch v. Ontario (Ministry of Transportation) (2002), 2002 CanLII 46508 (ON HRT), 43 C.H.R.R. D/171 (Ont. Bd. of Inquiry) at para 38.

Finding that documents are arguably relevant for production does not mean that such documentation will be admissible at a hearing: Neusch, supra at para 41.

11At least some of Mr. Downey's medical records are relevant to issues in the Applications. For example, Mr. Downey's Application states his condition was improving until the events outlined in the Applications, which have resulted in his "emotional and mental condition" being damaged. Therefore, improvements or deteriorations in his condition occurring during the period covered by the Applications are arguably relevant. One of the disputes between the parties is whether or not some of Mr. Downey's behaviour is caused by alcohol consumption, medication prescribed for his condition, or his condition. The Replies filed by the applicants all specifically state that Mr. Downey takes medication which causes certain side effects that may look like alcohol intoxication but are not, and alcohol cannot be mixed with his medications. Therefore, any records containing references to alcohol consumption or medication that cannot be mixed with alcohol are relevant, as are medical records describing his symptomology.

12With respect to the stated reasons in the respondents' RFOP for requesting production of medical records, I do not agree that the circumstances surrounding how the applicant suffered his acquired brain injury more than 20 years ago are arguably relevant to the issues in the Applications. Whether or not Mr. Downey consumed alcohol prior to his injury or was doing so at the time of his injury is not connected to how his disability manifests itself or whether or not he was consuming alcohol during the period covered by the Applications.

13As for the argument that Mr. Downey does not have any medical records in his possession and therefore cannot be required to produce them, the question is not whether he has them now but whether or not they are obtainable. The respondents have no means of accessing Mr. Downey's medical records except through Mr. Downey. He has access to his own records as long as he makes an appropriate access request for them from the health care custodian holding them. This is evidenced by the e-mail filed by the applicants from Mr. Downey's physician to applicants' counsel that describes the process to follow to obtain the medical records of his treating physician.

14Mr. Downey will be required to produce for the respondents his medical records for the period commencing April 1, 2010 relevant to his acquired brain injury and its symptomology, medication regime, alcohol consumption or contraindication, improvements or deterioration in his condition, and his attendant needs.

15The RFOP also requests production of "any documentation that Applicant's witnesses may have, other than experts, that the Applicants' [sic] intend to rely on". The RFOP contains no further particulars of what documents the respondents seek. The applicants state in their response to the RFOP that all arguably relevant documents have been produced to the respondents. Absent some specifics as to what documents the respondents seek, it is not possible to grant a further request for production. Therefore, that request in the RFOP is denied.

Requiring Dr. Snaiderman to Testify

16Dr. Snaiderman is Mr. Downey's treating physician. If I understand the RFOP correctly, the respondents are requesting the Tribunal either order Dr. Snaiderman to attend the hearing to testify or order the applicants to call him as a witness. This request is denied.

17What witnesses the applicants choose to call is within their discretion. If the respondents wish to call Dr. Snaiderman as a witness they are free to serve him with a summons. The admissibility of his proposed evidence would then have to be determined in the normal course. Information about how to summons a witness to a hearing before the Tribunal can be found in the "Guide to Preparing for a Hearing Before the HRTO" available on the Tribunal's web site at www.hrto.ca.

18As a result, it is not necessary for the Tribunal to issue the order requested with respect to Dr. Snaiderman and I decline to do so.

The Videotape

19The RFOP says that the respondents received from the applicants a videotape as part of their arguably relevant productions. According to the RFOP the contents of the videotape would appear to concern events that are not raised in the Applications so the respondents are requesting an order for particulars. The RFOP is unclear what this means.

20The request in the RFOP with respect to the videotape is denied.

21The videotape would appear to have been recorded on June 5, 2011, and the Applications specifically refer to events that occurred during the weekend of June 4, 2011. Therefore, it is not clear if the contents of the videotape are wholly with respect to facts not referred to in the Applications.

22As the videotape is in the respondents' possession, they are free to examine it thoroughly and there is no need to require the applicants to describe its contents in words. If the videotape concerns events not mentioned in or relevant to the Applications, then the respondents may wish to raise its relevance at the hearing if the applicants attempt to rely on it as evidence. But it would not be appropriate for the Tribunal to order that the Applications be amended to include additional events or particulars just because the respondents received a videotape as part of the applicants' arguably relevant productions.

Amending the Applications and Responses

23The parties agree that Ms. Corpez will not be pursuing one of the remedies she requests in her Application; namely, the claim for $8,000 for lost income. Therefore the requested remedy shall be struck from her Application.

24The RFOP requests leave to amend the Responses filed by the respondents. The stated purposes of the amendments are:

• To provide "context" so the Tribunal understands the "identity and circumstances" of the respondents;
• To respond to new information that has come to light as a result of the exchange of arguably relevant documents;
• There is one factual error – in response to question 9, the Responses filed incorrectly state that the personal respondent's son was present during her conversation with Mr. White on June 4, 2011; and
• To remove redundancies.

25It is simply unnecessary to make most of the amendments to the Responses requested. The primary purpose of a response is to rebut the factual and legal assertions put forward in an application. The respondents' "context" and their "identity and circumstances" do not serve to refute a factual or legal allegation in the Applications. Similarly, amending a response to refer to information learned as a result of disclosure or to remove redundant paragraphs is unnecessary. However, amending a response to correct a factual assertion is arguably necessary.

26The applicants object to any amendments of the Responses given where the Applications are in the hearing process, and enumerate specific reasons for objecting to some proposed amendments but not with respect to this particular factual correction. As the parties have not yet exchanged and filed witness statements, it does not appear to me that this minor factual correction will cause the applicants any prejudice, so the Responses shall be amended accordingly.

Consolidation

27The request for consolidation of the Responses is unnecessary. The Tribunal ordered consolidation of the Applications in 2012 HRTO 1683.

Procedural Directions

28The RFOP seeks direction on the order of witnesses and the dates the witnesses may anticipate they will be called.

29The hearing is scheduled for November 25, 26, and 27, 2013. Pursuant to Rule 17, the parties' witness lists and witness statements are to be exchanged and filed no later than October 11, 2013. Neither party has filed with the Tribunal witness lists or witness statements at this point in the proceeding. The RFOP contains no details as to how many witnesses each side will call, or estimates of time with respect to their testimony. Therefore, the request for directions with respect to the order and timing of witnesses is premature.

The Request the Tribunal Receive Certain Evidence

30It would appear from the materials filed by the respondents that one of the applicants, Mr. White, has commenced an action in assault and battery in Small Claims Court against another occupant of the respondents' trailer park who may be a witness at the hearing before the Tribunal. The events giving rise to the action appear to be part of the narrative in the Applications. If I understand the RFOP correctly, the respondents want the Tribunal to accept the statement of claim into evidence. This request is denied as premature.

31If the respondents wish to rely on the statement of claim as part of their case at the hearing before the Tribunal, then they should include it in their list of arguably relevant documents to be relied on pursuant to Rule 16.3. The admissibility of the document can then be argued at the hearing before the Tribunal.

Orders

32By October 4, 2013, the applicant, Bryan Downey, shall deliver to the respondents his medical records, for the period commencing April 1, 2010, that are relevant to his acquired brain injury and its symptomology, medication regime, alcohol consumption or contraindication, improvements or deterioration in his condition, and his attendant needs.

33Ms. Corpez's Application is amended by striking the request for $8,000 for lost income.

34Paragraph 24 of the Response filed with respect to Mr. Downey's Application, and paragraph 28 of the Responses filed with respect to Mr. White's and Ms. Corpez's Applications, shall be amended to delete the words "as her son was present".

35All other requests in the respondents' RFOP are denied.

36I am not seized.