Vetharaniyam v. Timothy J. Tallon Sales Inc., 2013 HRTO 1678

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ranjana Vetharaniyam Applicant

-and-

Timothy J. Tallon Sales Inc. Respondent

INTERIM DECISION

Adjudicator: Mark Hart

Date: October 4, 2013

Citation: 2013 HRTO 1678

Indexed as: Vetharaniyam v. Timothy J. Tallon Sales Inc.

WRITTEN SUBMISSIONS

Ranjana Vetharaniyam, Applicant Self-represented

Timothy J. Tallon Sales Inc., Respondent Arthur Tarasuk, Counsel

1This is an Application dated June 10, 2012 and 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 race, ancestry, place of origin, disability, creed, sex, sexual solicitation or advances, family status, marital status, age and reprisal.

2This matter is scheduled to proceed to a hearing in Toronto on December 2 to 4, 2013.

3The purpose of this Interim Decision is to address two Requests for Order filed by the parties: (1) the first is a Request for Order dated June 27, 2013 and filed by the respondent requesting production of all psychological, psychiatric and medical reports and assessments in the applicant’s possession; and (2) the second is a Request for Order dated July 14, 2013 and filed by the applicant seeking production from the respondent of certain specific documents as discussed in detail below.

4I will address each request in turn.

THE RESPONDENT’S REQUEST FOR PRODUCTION OF MEDICAL REPORTS AND ASSESSMENTS

5The respondent seeks production of all psychological, psychiatric and medical reports and assessments in the applicant’s possession on the following bases: the Application alleges discrimination because of disability; the Application further alleges that the alleged discrimination affected the applicant psychologically, mentally, emotionally and physically; the applicant already has provided some medical documentation to the respondent; the Application states that the applicant intends to rely upon medical reports from her family doctor and psychologist in support of her allegations; and that there may be a pre-existing psychological condition that has caused the applicant to interact with her co-workers in a non-conventional manner and to experience less than accurate assessments regarding day to day events and the conduct of her co-workers and managers.

6The applicant objects to production of these medical reports and assessments primarily on the basis that these documents are privileged and confidential, and are not necessary to be disclosed.

7The test for production of medical records is whether they are arguably relevant to a matter at issue in the proceeding: see Gardiner v. 1708840 Ontario, 2010 HRTO 498 at paras. 6 to 8. There is no blanket “privilege” over medical records. Rather, where privilege is asserted, it needs to be assessed on a case-by-case basis: see McEwan v. Commercial Bakeries Corporation, 2004 HRTO 13 at para. 23. Further, the Tribunal is sensitive to privacy issues in relation to the production of non-privileged medical records, and may address privacy concerns in a variety of ways, including restricting individuals who may view the documents and limiting the documents to be produced: see Gardiner v. 1708840 Ontario, supra, at para. 10.

8In M. (A.) v. Ryan 1997 CanLII 403 (SCC), [1997] 1 SCR 157, the Supreme Court addressed a claim of privilege in relation to psychiatric counseling records pertaining to a victim of sexual assault. In that case, the Supreme Court applied the well-established four part Wigmore test for determining privilege, and found that the first three parts of the test were satisfied in such circumstances: namely, that the communications originated in confidence; that confidence was essential to the relationship in which the communication arose; and that the relationship is one that should be sedulously fostered in the public good. If all three of these requirements are met, then the issue becomes whether the interests served by protecting the communication from disclosure outweigh the interest in getting at the truth and disposing correctly of the litigation: see pp. 170-171.

9With regard to the fourth part of the test, the Supreme Court held that an order for partial privilege over some medical records may be appropriate, particularly in civil cases and where the privacy interest is compelling, although in some cases the court may well decide that the interests of justice require nothing less than full disclosure. This determination requires a balancing between the privacy interests of the claimant and the right of a defendant to answer the claimant’s case. Documents of questionable relevance or which contain information available from other sources may be declared privileged, and fishing expeditions are not appropriate where there is a compelling privacy interest at stake: see pp. 175-180.

10In the instant case, it is clear that the applicant has put her psychological, emotional and mental health at issue, at least as it pertains to her claim that the impact of the alleged violation of her rights under the Code caused her such harm. The Application is focused on the events from and after December 2011 until her continued absence on sick leave commencing in March 2012. She alleges that the discrimination and harassment she says she experienced in the workplace were the cause of a two week absence from work in February 2012 and her current continued absence. In such circumstances, the respondent properly is entitled to understand the medical basis for the applicant’s absences and to assess and challenge whether any psychological, mental health or other medical issues the applicant may be experiencing were caused by events in the workplace or are attributable to other factors.

11In my view, as the applicant has clearly put this claim in issue in this proceeding and has produced and relied upon at least one psychological report, the interests in allowing the respondent to be able properly to respond to the applicant’s claims outweigh the applicant’s privacy interests. Further, in my view, the applicant’s privacy interests can adequately be protected by the limited scope of the production order sought, namely only psychological, psychiatric and medical reports and assessments in the applicant’s possession, as opposed to a broader request for disclosure, for example, of her psychologist’s notes. In addition, any order for disclosure would be time limited and applicable to the period during which the applicant claims that her rights were infringed and as a consequence she experienced psychological, emotional or other distress, namely from December 2011 to the present. Finally, in my view, the provision under the Tribunal’s Rules requiring that documents only be used for the purpose of the proceeding and not for any other purpose also affords the applicant with a measure of protection over her privacy interests.

12With regard to the respondent’s argument that the applicant claims discrimination because of disability as a basis in support of the request for production, it is my view that this argument does not serve to advance the scope of the production already ordered. The applicant’s allegations at issue in this proceeding relate to the period from December 2011 to March 2012, and that period already is covered by the disclosure order I have made. Further, it seems to me that a number of claims raised by the applicant in the Application that appear to raise issues of discrimination or harassment because of disability are not reliant upon medical records or disclosure. For example, the applicant alleges that during the period at issue, some co-workers referred to her as “crazy” and made comments to the effect that she did not appear to be sick after she returned from her medical leave in February 2012. She also appears to allege that disability was at least one of the factors contributing to her perception that her managers and co-workers were trying to “push” her out of the workplace. There does appear to be a claim that she was denied sick benefits during the period of her two week absence in February 2012, but any medical reports or assessments relevant to this claim would be covered by the disclosure order I already have made.

13Finally, with regard to the respondent’s argument that some pre-existing mental health condition may have caused or contributed to the applicant’s behaviour in the workplace, it is my view that this assertion is speculative and unsupported by any actual evidence. The respondent points to a report from the applicant’s psychotherapist dated April 22, 2012, in which the psychotherapist diagnoses the applicant with severe psychological depression. The psychotherapist then proceeds to identify two major sources of depression: endogenous depression, which occurs from within the individual rather than from any discernible outside cause and which may be caused by underlying biological or genetic factors or may be a learned behaviour; and exogenous or reactive depression, which is the result of life stresses rather than inherited or genetic factors. However, the psychotherapist does not specifically identify the underlying nature of the applicant’s depression, beyond reporting that the applicant had indicated that her psychological problems are related to her work environment and the level of stress she had been dealing with there, which would suggest exogenous or reactive depression. In my view, the material before me does not provide support for the respondent to be entitled to disclosure of psychological, psychiatric and medical reports and assessments pre-dating the period at issue in the Application.

14Accordingly, the respondent’s request for production of psychological, psychiatric and medical reports and assessments in the applicant’s possession is allowed in part, and the applicant is ordered to disclose all such reports and assessments to the respondent for the period December 2011 to the present.

THE APPLICANT’S REQUEST FOR PRODUCTION

15The applicant seeks production from the respondent of three specific documents or items. First, she seeks production of a two page letter authored by a Canadian Tire executive named “Larry” that she says was read to her by the general manager at a meeting held on March 2, 2012. The respondent states that no such document exists. I am aware from the materials that the applicant made a written complaint on February 11, 2012, and that a letter dated February 14, 2012 was prepared by the general manager in response. This letter appears to include at least some of the information that the applicant says was read to her at the March 2, 2012 meeting, namely that unless she could provide witnesses who could confirm her allegations, the matter was closed. In any event, I cannot order production of a document that the respondent states does not exist. At the hearing in this matter, the Tribunal will hear evidence regarding the March 2, 2012 meeting, and the applicant will be able to give her evidence as to what was read to her at this meeting and the basis upon which she attributes what was read to her to a person named “Larry”. The Tribunal presumably also will hear from the other participants at this meeting, and they can testify about what if anything was read to the applicant at this meeting.

16The applicant next requests production of a security video that was shown to her at the March 2, 2012 meeting. There is no dispute that this video was shown to the applicant at that time. The respondent states that the purpose of showing the applicant the video was to try to get her to identify whether any of the harassment she alleged had been caught by the security cameras. The respondent states that when the applicant was unable to identify any such harassment being shown on the video, the video was destroyed in accordance with the respondent’s normal retention policy of 30 days. Once again, I am being told by the respondent that this security video no longer exists, and so I have no basis to order its disclosure.

17Finally, the applicant requests production of “harassment notes” that she says she gave to the general manager and to the cashier supervisor in 2010. She states that she did not keep a copy of these “harassment notes”, and so the only copies in existence are in the possession of the respondent. The respondent has not specifically responded to this request, other than to state that all arguably relevant documents already have been produced. While the allegations raised in the Application are stated to date from December 2011 to March 2012, it is clear from the materials that there are events being relied upon by the parties that pre-date this period. In my view, if the applicant did provide any “harassment notes” to these two individuals in 2010 – by which I understand her to mean notes prepared by her relating to events that she perceived as harassment – then any such notes would be arguably relevant to this proceeding and ought to be disclosed. Accordingly, I am ordering the respondent to make inquiries of the general manager and cashier supervisor to ascertain whether they received any “harassment notes” from the applicant in 2010, to determine whether any such notes can be located, and if so, to produce such notes to the applicant.

ORDER

18For all of the foregoing reasons, I hereby make the following order:

a. Within 14 calendar days of the date of this Interim Decision, the applicant shall disclose to the respondent a copy of all psychological, psychiatric and medical reports and assessments in her possession for the period from December 2011 to the present; and

b. Within 14 calendar days of the date of this Interim Decision, the respondent shall make inquiries of its general manager and cashier supervisor to ascertain whether they received any “harassment notes” from the applicant in 2010 and to determine whether any such notes can be located, and if so, produce such notes to the applicant.