HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Carolyn Valmassoi
Applicant
-and-
Canadian Electrocoating Limited
Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Valmassoi v. Canadian Electrocoating Limited
WRITTEN SUBMISSIONS
Canadian Electrocoating Limited, Respondent
Jeanine Watt, 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. This matter is scheduled for hearing in Windsor on February 27 and 28, 2014.
2On March 8, 2013, the Tribunal issued Interim Decision 2013 HRTO 401 which dismissed the Application in part, and concluded at para. 36:
In light of the above, the Application is dismissed except for the applicant’s allegation that the company discriminated against her on the basis of disability, family status and/or marital status when it terminated her employment due to innocent absenteeism. Accordingly, the company shall file a Response to this allegation no later than 35 days after the date of this Interim Decision.
3This Interim Decision deals with the respondent’s Request for an Order During Proceeding seeking the disclosure all the applicant’s arguably relevant documents, her medical records and her employment records with another employer. The applicant has not responded to this Request for production.
4The Tribunal has the power to order a party to produce any document that is arguably relevant to the proceeding. 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: Lampi v. Princess House Products Canada Inc., 2008 HRTO 1 at para. 8. Finding that documents are arguably relevant for production does not mean that such documentation will be admissible at a hearing: Lampi at para. 9.
Arguably Relevant Documents
5The Notice of Hearing advised that both parties had to exchange arguably relevant documents by no later than September 20, 2013. The respondent confirmed that it delivered its arguably relevant documents on September 19, 2013.
6On September 20, 2013, the applicant asked for an extension of time to deliver her arguably relevant documents to the respondent. The request for an extension of time was opposed by the respondent. The Registrar allowed the applicant’s request for an extension of time and advised the applicant that she had to deliver her arguably relevant documents by no later than October 4, 2013.
7On October 4, 2013, the applicant wrote to the Tribunal to advise that her arguably relevant documents would be provided within 45 days of the scheduled hearing.
8It is appropriate that the applicant immediately deliver to the respondent all arguably relevant documents in her possession and it will be so ordered.
The Medical Records
9One of the issues raised in the Application is whether the applicant has a disability and whether there is a causal connection between this disability and her absenteeism. Having reviewed the pleadings and the nature of the allegations in dispute, I find that some of the medial documents sought by the respondent are arguably relevant to the proceedings and the respondents are entitled to the production of these documents. However, I disagree that the respondent is entitled to the disclosure of the applicant’s records to today’s date. I find that it is appropriate to limit the disclosure, at this time, to the date of the applicant’s termination from employment. Further, there is no support for the respondent’s request for the production of documents “at any time up to the present”.
10I am also not prepared to direct the applicant to consent to the release of this medical information directly from her treating medical professionals to the respondent. The medical records of the applicant are in the applicant’s control since she can request them from her treating medical professionals. As such the applicant will have to obtain a copy of these medical records and deliver them to the respondent.
Employment Records with other employer
11The respondent also Requests documents with respect to the applicant’s employment file with Huron Lodge from 2009 to the present. Having considered the matter I find that the applicant’s employment records with Huron Lodge appear to be arguably relevant. However, I am not convinced at this time that these documents are within the applicant’s control and can be obtained from Huron Lodge. Therefore, I will direct the applicant to make enquiries to determine if she can obtain these documents. If she cannot obtain them then the respondent will have deliver to Huron Lodge and the applicant a Request for an Order for the production of documents held by a third party.
Order
12The Tribunal orders:
a. Within seven days of today’s date the applicant must disclose to the respondent all arguably relevant documents in her possession and confirm in writing to the Tribunal that she has done so, these documents include any information that she may have with respect to her employment with Huron Lodge, and any medical records;
b. Within seven days of today’s date the applicant must advise in writing if she can obtain a copy of her employment file with Huron Lodge and the documents sought by the respondents. If she can obtain these documents then she must advise by what date she anticipates being able to deliver these to the respondent; and
c. Within 21 days of today’s date the applicant must obtain and deliver all of her medical records from January 1, 2009 until July 19, 2011, including the records held by Dr. David Scarfone, CML Healthcare, Windsor West Urgent Care Center, Dr. Elsayed Alamelhuda, and Paulette Melon.
13If the applicant does not comply with the Orders in the Interim Decision then the Application may be dismissed as abandoned.
14I am not seized.
Dated at Toronto, this 6^th^ day of November, 2013.
“Signed by”
Geneviève Debané
Vice-chair