Allen v. The Ottawa Hospital, 2013 HRTO 1862

Human Rights Tribunal of Ontario

Between:

Patrick Allen Applicant

-and-

The Ottawa Hospital Respondent

Interim Decision

Adjudicator: Paul Aterman Date: November 6, 2013 Citation: 2013 HRTO 1862 Indexed as: Allen v. The Ottawa Hospital

Written Submissions

The Ottawa Hospital, Respondent Raquel Chisholm, Counsel

Background

1This Interim Decision deals with a request by the respondent for the Tribunal to order production of medical documents pertaining to the applicant. The applicant has filed an Application 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.

2The applicant was hired by the respondent as a paramedic EMS coordinator but was terminated during his probationary period. The applicant has diabetes. He alleges that the respondent's failure to accommodate his disability led to the respondent characterising some of his actions as unprofessional. This in turn became the reason for terminating his employment. The respondent says that the applicant was not suited to the job and denies that the applicant's disability was at all a factor in its decision to terminate his employment.

3After his termination the applicant was given a Trespass Warning by the respondent. This document tells the applicant that he is not allowed on to the respondent's property without a justifiable medical reason. It also requires him to notify the respondent before he enters the property. The applicant alleges that the Trespass Warning is discriminatory as it flows from the allegedly discriminatory decision to terminate. He maintains that an effect of the Trespass Warning has been that a surgeon, Dr. Rockwell, who was treating an injury to his finger has refused to provide him further treatment.

4A hearing is scheduled for January 29, 2014. In preparation for the hearing the respondent seeks disclosure of medical information relating to the applicant. Specifically, it requests that the Tribunal order the applicant to disclose to it the applicant's file held by the respondent's Occupational Health, Safety and Emergency Preparedness Department ("OHSEP"). In order to protect patient privacy OHSEP does not release its files to the hospital's management, its human resources department or its lawyers without patient consent or unless obliged to do so by law.

5The respondent also requests disclosure of the applicant's file held by Dr. Rockwell. Absent patient consent or a valid legal direction to do so, Dr. Rockwell also cannot release her file to the respondent.

6The respondent asked for the applicant's consent to disclose these records and he declined to give it. An email from the applicant to the respondent dated September 10, 2013 states in its relevant part:

Also, I do not give consent to anyone for my personal health information. I may agree to consent only if the Ottawa Hospital agrees to release all of the requested FOI documents that they have currently refused. I can be contacted at the above number for further explanation or clarification. Until such time, I do not consent to OHSEP.

7In addition to requesting the OHSEP file and Dr. Rockwell's file the respondent also seeks disclosure of medical records from any other doctors who have treated the applicant's diabetes or his injured finger. There is no timeframe specified by the respondent in relation to this aspect of its request.

8Finally, the respondent asks that the applicant be directed to disclose to it his Personal Claim History ("PCH") for services provided by the Ontario Health Insurance Plan in 2011 and 2012.

9Although he answered the respondent's request for consent to disclose the OHSEP file and Dr. Rockwell's file in the email noted above, the applicant did not provide any reply to this request for production of documents.

Analysis

10The issue on this request is the arguable relevance of these documents. The threshold of arguable relevance is quite low. As indicated in McKay v. Toronto Police Services Board, 2009 HRTO 1220 at paragraphs 12-13, the party seeking production simply must demonstrate a nexus between the information or document sought and the facts or issues in dispute.

11However, just because documents are arguably relevant (and therefore have to be exchanged by the parties) does not mean that they will necessarily meet the test of admissibility at the hearing itself.

12The documents in the OHSEP file clearly meet the test of arguable relevance. At the core of the Application is the applicant's claim that his disability was made known to the respondent and that it failed in its duty to accommodate that disability. This in turn set in motion a chain of events that led to the termination of his employment. In order to defend against those allegations the respondent needs to review the records relating to the physical examination and medical questionnaire that the applicant claims were required of him by the respondent. It also needs to assess whether, when and how the applicant sought the assistance of OHSEP in relation to his diabetes. It cannot do this if it does not have access to the OHSEP file.

13In order to defend against the allegations in relation to the treatment of the applicant's finger by Dr. Rockwell, the respondent needs to know whether and for what reasons the applicant consulted Dr. Rockwell, and what treatment she provided to him. It also needs to know whether, why and when she discontinued treatment, as well as how this was communicated to the applicant. These documents also meet the test of arguable relevance.

14For the same reasons, the records of any other doctors who treated the applicant either for his diabetes or his injured finger, or both, meet the test of arguable relevance. However, this only applies to any treatment the applicant received for these two conditions and not for any other medical conditions that are unrelated to the issues in this Application. It also only applies for the years 2011 and 2012, as this covers the period when the applicant was hired and worked for the respondent, as well as the time following his termination (which is when the Trespass Warning was in effect).

15The applicant's PCH file is also arguably relevant as it may provide other information relevant to the treatment of the applicant's diabetes or his injured finger in that time period.

16The respondent's request is granted. The respondent's use of the applicant's medical information must be strictly limited in order to ensure that these records are only used for the purpose defending this Application. The limitations on the use of these records are set out in the order below.

17The applicant's email refusing disclosure indicates that he might have consented, had the respondent released documents which he was seeking. If the applicant believes that the respondent is not releasing arguably relevant documents, then it is open to him to make the same kind of request for the production of documents that the respondent has made here. The Tribunal will then determine whether to order production of those documents. That is the process which each party needs to follow when the relevance of documents is in dispute. It is set out in the Tribunal's Rules of Procedure (available at http://www.hrto.ca).

18I also note that the applicant has not yet provided the Tribunal with confirmation that he has provided any other arguably relevant documents to the respondent. The Notice of Confirmation of Hearing required that this be done by August 5, 2013. The exchange of documents between parties is necessary so that each party can prepare for the hearing and so that both can meet the next deadline, which is to exchange with each other and provide to the Tribunal their witness lists, witness statements and documents they intend to introduce at the hearing. That deadline is December 13, 2013.

Order

19The respondent's request is granted and the Tribunal orders as follows:

1. The Occupational Health, Safety and Emergency Preparedness Department of the Ottawa Hospital is directed to immediately provide to the respondent a copy of its file relating to the applicant;
2. Within 21 days of the date of this Interim Decision Dr. Rockwell is directed to provide to the respondent a copy of all records relating to the treatment of the applicant's finger, including records relating to any decision to discontinue treatment of the applicant and the reasons for that decision;
3. Within 21 days of the date of this Interim Decision the applicant is directed to provide to the respondent a copy of any records that document the treatment of his diabetes and his injured finger in 2011 and 2012 by any other doctors;
4. Within 21 days of the date of this Interim Decision the applicant is directed to provide to the respondent a copy of his Personal Claim History for 2011 and 2012 held by the Ontario Health Insurance Plan;
5. The respondent's counsel and the employee of the respondent who is instructing counsel are the only individuals for the respondent permitted to access and use the applicant's medical information as identified in (1) – (4) above. Their use of this medical information is limited to preparing for and defending this Application and for no other purpose;
6. The respondent's counsel can disclose relevant documents as identified in (1) – (4) above to witnesses who will be testifying about such documentation; and
7. With the exception of the documents identified in (1)-(4) above, the applicant is directed to provide to the respondent all other arguably relevant documents and confirm that he has done so to the Tribunal. He is to do this immediately and not later than 14 days from the date of this Interim Decision.

20If the applicant does not comply with the orders in this Interim Decision then the Application may be dismissed as abandoned.