Steven Ennis v. Drain-All Ltd., 2013 HRTO 1913

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Steven Ennis

Applicant

-and-

Drain-All Ltd.

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: November 19, 2013

Citation: 2013 HRTO 1913

Indexed as: Ennis v. Drain-All Ltd.

WRITTEN SUBMISSIONS

Steven Ennis, Applicant

Zahra Binbrek, Counsel

Drain-All Ltd., Respondent

Martin Thompson, Counsel

1The hearing in this Application is scheduled for November 26 and 27, 2013, pursuant to a Notice of Hearing dated March 8, 2013.

2The applicant filed a Request for Order During Proceedings (“RFOP”) on November 5, 2013, requesting that the Tribunal permit the applicant’s physician, Dr. Blanchard, to testify on November 26 and 27, 2013. Further, the applicant requests that various medical documentation, which was attached to the RFOP, be admitted at the hearing. In her email filing the RFOP, the applicant’s counsel advises that Dr. Blanchard is only available to testify in person between the hours of 1:30 to 4:00 p.m. on November 26, 2013.

3The respondent filed a Response to a RFOP. It submits that Dr. Blanchard and the medical documentation have long been arguably relevant to this proceeding, as both were identified in the Application, and that the disclosure of the new medical and records included in the RFOP, some of which is from individuals other than Dr. Blanchard, causes the respondent prejudice. However, the respondent is committed to proceeding with the hearing and is not seeking an adjournment. The respondent will accept Dr. Blanchard as a witness on the condition that his complete clinical notes and records, in addition to all other clinical notes and records from treating medical professional(s) at the Harrow Health Centre Inc. for the period of December 2010 to November 30, 2011, are immediately disclosed as the respondent submits that new issues, including an apparent history of chronic back pain, ongoing limitations and prescription medication going back to 2006 appear from the medical documentation that has been produced. The respondent submits that it reserves its right to make further submissions on the issue of prejudice and admissibility of the new medical records once it has had an opportunity to fully review the contents of the clinical notes and records it has requested.

analysis

4In Lampi v. Princess House Products Canada Inc., 2008 HRTO 1, the Tribunal stated the following:

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 4.

5Whether the applicant has a pre-existing medical condition, or not, and whether his medical condition is work-related, or not, may not be relevant to the issues that are raised in the Application. However, I accept that they may be arguably relevant to the respondent’s cross-examination of both the applicant and Dr. Blanchard. The medical documentation that has been produced also includes clinical notes from Dr. Pradko and Cathy Macpherson, both of which are identified with the Harrow Health Centre, and both of whom have not been identified as potential witnesses. Accordingly, I accept the respondent’s position that more fulsome disclosure of the applicant’s medical file from the Harrow Health Centre is warranted and I accept that the appropriate time period is from December 2010 to November 30, 2011.

6However, since the applicant has put into issue one medical issue, that being his back and symptoms related to that, I do not find it necessary, at this point, to be ordering that any and all medical documentation from the Harrow Health Centre be disclosed, in the event that there is medical documentation related to issues other than the applicant’s back and/or his absence from work during this time.

order

7Accordingly, the Tribunal orders the following:

1. The applicant is directed to immediately disclose to the respondent any medical documentation from Harrow Health Centre for the time period December 2010 to November 30, 2011 which has not otherwise been disclosed and which relates to either his back condition and its symptoms, his absence from work and/or his ability to return to work, or not, for the period May 2011 to November 2011.

2. To the extent that either party wishes to rely upon medical documentation at the hearing that has not been previously disclosed, the party is directed to identify such documentation to the other party and file a copy with the Tribunal.

3. The Tribunal is prepared to hear Dr. Blanchard’s viva voce evidence the afternoon of November 26, 2013. The parties should be prepared to address, at the beginning of the hearing, whether Dr. Blanchard’s testimony should begin if another witness (i.e. the applicant) has not finished his/her evidence.

8The Tribunal offers mediation-adjudication services to parties who are involved in Tribunal proceedings. This is set out in Rules 15A of the Tribunal’s Rules of Procedure.

9If the parties are interested in participating in mediation-adjudication, they are directed to email the Tribunal, copying the other party, by 4:00 p.m. on Friday, November 22, 2013.