Vetharaniyam v. Timothy J. Tallon Sales Inc., 2013 HRTO 1841

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 31, 2013

Citation: 2013 HRTO 1841

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 a further Request for Order during Proceedings filed by the respondent seeking further disclosure of medical records. This Request for Order originally was filed on October 16, 2013 and styled as a Request for Reconsideration of my Interim Decision dated October 4, 2013 (2013 HRTO 1678). As, under the Tribunal’s Rules of Procedure, a request for reconsideration can only be made in relation to a final decision, the Tribunal advised the parties that the respondent’s request would be treated as a Request for Order during Proceedings. Given the pending hearing dates, the time for the applicant to respond to this request was abridged.

4The primary basis for the respondent’s request is that in the Interim Decision, I misapprehended the timing of the allegations raised by the applicant in her Application. In the Interim Decision, I stated (at para. 10) that the Application is focused on the events from and after December 2011 until the applicant’s continued absence on sick leave commencing in March 2012, and that the applicant alleges that the discrimination and harassment she says she experienced in the workplace were the cause of her two week absence in February 2012 and her current continued absence. As a result, I found that 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. Accordingly, I ordered disclosure of psychological, psychiatric and medical reports and assessments in the applicant’s possession for the period from December 2011 to the present.

5The respondent takes the position that in her Application, the applicant’s allegations of discrimination and harassment are not confined to the period only from December 2011 to March 2012, but extend back at least until June 16, 2009 when she sent a letter to the General Manager of the store alleging that the Service Manager had been engaging in behaviours towards her that were “intimidating and harassing”. The respondent further relies upon statements at various points in the Application and the materials appended thereto, in which the applicant states that she had been harassed six times in the last three years. The respondent further relies upon the disclosure of medical records made by the applicant in response to my Interim Decision, in which her family doctor reports that he had seen her 30 times since July 2010.

6At the time I delivered the Interim Decision, I was aware of the references in the Application to prior complaints and the attached June 16, 2009 letter. However, from my reading of the Application, it appeared to me that, in terms of alleged violations of the Code, the Application was focused on the period from December 2011 to March 2012, and the references to prior complaints and the June 16, 2009 letter were included, not for the purpose of alleging any further violation(s) of the Code, but as background or context. I reached this conclusion based on the fact that in the narrative attached to the Application, the applicant focused exclusively on the events from December 2011 to March 2012 in some considerable detail, and did not provide any details or particulars of any prior alleged events of discrimination or harassment.

7Since the issuance of my October 4, 2013 Interim Decision, the parties now have filed their pre-hearing materials, including witness statements. In the applicant’s witness statement, she now does go into detail regarding the alleged events since she first transferred to the Service Department area in or about May 20, 2009. In particular, she alleges that the Service Manager started harassing and discriminating against her, at least on the basis of her gender, from the time she began working in the department. Accordingly, based on the material as presently filed with the Tribunal, I accept the respondent’s position that the alleged violations of the Code being raised by the applicant extend back to the period when she commenced working in the Service Department area.

8However, even accepting this, this does not necessarily mean that medical reports and assessments extending back to May 20, 2009 are arguably relevant to the matters at issue in this proceeding. The basis upon which I found that medical reports and assessments from and after December 2011 were arguably relevant is based upon the applicant’s reliance upon the emotional and psychological impact of the alleged discrimination and harassment from and after December 2011 in support of her claim for remedy.

9In her response to the request for order, the applicant clearly states that that “anywhere in my documents and my application, I have never claimed that I had been affected prior to December 2011”. This is supported by the applicant’s detailed witness statement, in which (at para. 77) she states that she “was emotionally affected at the beginning of the last acts of harassment” and (at para. 78) she states that her “disability was caused by the respondent at work in the last act of harassment” that she mentioned in her Form 1A and Question A.15. As a result, I find that the applicant is not relying upon any medical evidence to support any claim for remedy arising out of the impact of any alleged violations of the Code prior to December 2011. Accordingly, medical reports and assessments pre-dating December 2011 are not arguably relevant to the applicant’s claim.

10In confirming my Interim Decision dated October 4, 2013, I have considered whether, on the basis of the medical reports and assessments disclosed to date by the applicant, there is any basis to find that the applicant may have been experiencing prior psychological issues that the respondent properly should be entitled to know of and explore in support of any argument that any psychological issues the applicant has suffered from and after December 2011 are attributable to some other, non-work related cause. In a psychiatric report dated January 18, 2013, the psychiatrist reports that there is no past psychiatric history, that family history was non-contributory to the applicant’s depressive disorder, and that there is no history of alcohol or substance abuse. While the applicant’s family doctor does state in his report that he had seen the applicant 30 times since July 2010, there is no basis in this material to indicate that the applicant was experiencing psychiatric or psychological issues prior to December 2011.

11Accordingly, for the foregoing reasons, I confirm the order made in my Interim Decision dated October 4, 2013 and deny the respondent’s request for further disclosure.