HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Elizabeth Robertson-Sim Applicant
-and-
Georgian Bay General Hospital Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané Date: November 27, 2013 Citation: 2013 HRTO 1966 Indexed as: Robertson-Sim v. Georgian Bay General Hospital
WRITTEN SUBMISSIONS
Georgian Bay General Hospital, Respondent Andrew N. Zabrovsky, 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 with respect to employment because of sex. The respondent has not yet filed a Response.
2On November 8, 2013, the respondent made a Request for an Order during proceeding seeking that either the applicant consent to the disclosure of the documents held in her occupational health file or that the Tribunal order its disclosure. The respondent also seeks that I compel the Occupational Health Nurse to answer inquiries made by the respondent.
3The applicant has filed no submissions in response to the Request for order.
Occupational Health File
4Absent exceptional circumstances, the Tribunal will not permit a request for particulars or production of documents to delay the filing of a complete response: Glynn v. Lowe’s Companies Canada, 2009 HRTO 1180. However, the Tribunal has also recognized in a similar situation that it is sometimes appropriate to order access to an internal medical file at an early stage in order to ensure that the respondents are in a position to meaningfully respond to the Application, see Bryer v. (City) Toronto, 2010 HRTO 2389, Johnston v. Toronto Transit Commission, 2011 HRTO 923, and Power v. Toronto Transit Commission, 2011 HRTO 1462.
5The respondent is unable to access medical documents and communications that are in its possession which are arguably relevant to this matter because of privacy legislation. It would be unfair in these circumstances to require the respondent to file a Response without it being able to review all arguably relevant documents. These are exceptional circumstances which justify the production of these documents at this stage.
Inquiries to the Occupational Health Nurse
6The applicant accuses the Occupational Health Nurse of bullying and harassment and clearly her conduct is central to the allegations in the Application. However, the respondent has not provided me with any source, statutory or otherwise, for my authority to compel any person to speak to any party in the preparation of a pleading. I do have the power to compel individuals to testify at a hearing, but we are not yet at this stage. Therefore, this request is denied.
Order
7The Tribunal orders:
a. Within seven days of the date of this Interim Decision, the Occupational Health Department or Nurse of Georgian Bay General Hospital will deliver to counsel for the respondent all documents in the applicant’s occupational health file from July 29, 2013 to the date of this Interim Decision. Respondent’s counsel must deliver to the applicant a copy of all of these documents within seven days of receiving them; and
b. The respondent must file its Response within 21 days of the receipt of the documents identified at para. 7(a) of this Interim Decision.
8I am not seized.
Dated at Toronto, this 27^th^ day of November, 2013.
“signed by”
Geneviève Debané Vice-chair