Mohammed v. Toronto Transit Commission, 2013 HRTO 2038

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Feyazuddin Mohammed

Applicant

-and-

Toronto Transit Commission

and Amalgamated Transit Union Local 113

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: December 9, 2013

Citation: 2013 HRTO 2038

Indexed as: Mohammed v. Toronto Transit Commission

APPEARANCES

Feyazuddin Mohammed, Applicant

Self-represented

Toronto Transit Commission, Respondent

Patricia Matusiak, Counsel

Amalgamated Transit Union Local 113, Respondent

Katherine Rowan, Counsel

INTRODUCTION

1The applicant filed this Application on May 2, 2013, under section 34(1) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the "Code"), as amended, alleging discrimination with respect to employment on the basis of disability.

2The applicant alleges that, as a result of workplace injuries culminating in a disability leave in April 2009, he experienced permanent medical restrictions requiring accommodation and precluding him from performing his regular duties. The applicant alleges that his employer, the respondent Toronto Transit Commission ("TTC"), sponsored his job re-training and that, in February 2010, he applied for new positions based on assurances given by his union, the respondent Amalgamated Transit Union Local 113 ("Union"), that he could transfer his seniority to a new position. The applicant alleges that both respondents subsequently discriminated against him because of disability by refusing to transfer his seniority causing him disadvantages in his new job.

3The respondent TTC filed a Request for Order during Proceedings seeking an extension of time to deliver its Form 2 Response in order to access, use and/or disclose the applicant's personal health information. The respondent TTC requests access to the applicant's Occupational Health and Claims Management ("OHCM") files and Workplace Safety and Insurance Board ("WSIB") records maintained by the OHCM unit within the TTC's human resources department. The TTC argues that it requires access to the applicant's OHCM and WSIB files for the purpose of preparing its Response to defend against the Application. The TTC seeks to review and/or disclose any relevant information in the OHCM and WSIB files with individuals who are expected to be witnesses in this matter and/or individuals who may provide instructions for responding to the Application.

4The respondent Union filed submissions supporting the TTC's disclosure request. The Union submits that there is significant factual overlap in the allegations made against it and the respondent TTC. As such, the respondent Union also seeks production of the same documentation and requests an extension of time to file its Response, arguing that, as a matter of fairness and efficiency, both respondents' pleadings should be filed on the same date.

5The applicant did not file written submissions in response to the respondents' disclosure and extension of time requests.

6The Tribunal issued a Case Assessment Direction stating that it required a) clarification of the temporal scope of the applicant's allegations and identification of what aspects of the narrative constitute background and/or specific live allegations of disability discrimination; b) confirmation from the respondent TTC of the timeline parameters of the documents being requested; and c) identification of which TTC employees come within the meaning of "health information custodians" or "agents of a health custodian" under the Personal Health Information Protection Act, 2004, S.O 2004, c. 3, Sched. A ("PHIPA"). The Tribunal directed that a teleconference be convened to hear the parties' submissions regarding these matters.

7All parties participated in making oral submissions during the conference call and the respondent TTC filed written submissions. The respondent TTC submits that it requires disclosure of the applicant's entire OHCM and WSIB files in order to review the documentation with instructing parties, and potential witnesses in relation to the information, for the purposes of preparing its Response. The respondent Union supports this request and also seeks access to the same information. The applicant opposes the disclosure request.

SUMMARY OF APPLICATION

8The Application narrative states that the applicant commenced employment with the TTC as a bus operator in July 2006 and that he suffered a number of injuries culminating in medical leave and receipt of WSIB benefits in April 2009. Based on the advice of the WSIB, employer and Union, the applicant enrolled in courses to upgrade his skills. The applicant alleges he was advised by the Union that upgrading his skills would enhance his chances of securing a new position because, since the placement process was based on seniority, a different skill set would set him apart from other candidates in the pool.

9The applicant alleges that in February 2010, during discussions with both respondents, he was informed that he would be granted a seniority transfer on compassionate grounds if the parties were unable to locate a suitable position for him in the transportation department.

10The applicant alleges that in June 2012, after completing his re-training, he applied for the job of a storeperson in a different department, which fit his medical restrictions. The applicant was accepted for this position; however, he was informed by the Union that his seniority would not be transferred. The applicant alleges that he made a formal request to the Union to have his seniority transferred to his new department, but the Union refused to transfer his seniority.

11The applicant alleges that in October 2012, he was informed by the Union that one reason for the refusal was because he could have worked as a Divisional Clerk in his former department. The applicant refutes this and alleges that, in February 2010, all parties agreed that the Divisional Clerk position was not suitable to his medical restrictions. The applicant alleges that another reason provided by the Union for declining to transfer his seniority was because he purportedly refused to re-write a pre-test for a position with Wheel-Trans. The applicant claims that a Wheel-Trans superintendent told him that he would have to wait 6 months to re-write the test and, by that time, the storeperson job became available.

12The applicant alleges that the respondents discriminated against him because of disability by refusing to transfer his seniority. The applicant alleges this has caused him disadvantages, including limiting his selection of work and shifts, such as requiring him to work nights in his new job, which the applicant claims was contrary to one of his temporary medical restrictions.

SUMMARY OF PARTIES' SUBMISSIONS

Applicant

13The applicant indicates that the details of the events from July 2006 to June 2012 as described in the Application narrative simply form the background to his live allegations; specifically, the refusal to transfer his seniority from June 2012 to present. The applicant submits it is unnecessary for the respondents to have access to his entire medical history to respond to the allegations that a seniority transfer has been unfairly denied.

14The applicant asserts that his medical restrictions have long been established, the respondents are well aware of the restrictions and that there no dispute with respect to those restrictions. The applicant clarified that he does not contest the suitability of his present job, nor is he currently asserting any night shift restriction.

Respondent TTC

15The TTC submits that it should be allowed to access the entirety of the applicant's OHCM and WSIB files. The TTC contends that documentation and information contained in these files relate to the various allegations the applicant has made regarding his injuries, medical restrictions, and accommodation. The TTC asserts that, by raising his multiple injuries and the events that occurred between 2006 and 2012, the applicant has placed his medical history into issue. The TTC argues that the accommodation efforts of the respondents, along with the WSIB, are the subject of the applicant's claims and that the TTC should be permitted to access documentation relating to these issues.

16The TTC further contends that the applicant's allegations regarding events pre-dating May 2012 are untimely and that the materials sought for disclosure may also be relevant to this issue of delay.

Respondent Union

17The respondent Union adopts the submissions of the TTC. The Union submits that, although the applicant now claims the live allegations relate only to the storeperson position, the Application describes matters that involve the parties' tripartite search for accommodation and this requires an understanding of the entire accommodation process.

18The Union posits that there may be information in the applicant's OHCM and WSIB files which indicate that other jobs within the transportation department were suitable to the applicant's restrictions and, therefore, a transfer of seniority was not necessary.

ANALYSIS & DECISION

19Rule 1.7(p) of the Tribunal's Rules of Procedure ("Rules") states that in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may require a party or other person to produce any document and information.

20Ordinarily, pursuant to Rule 16, parties exchange disclosure of all arguably relevant documents in their possession only after the Tribunal schedules the hearing. The respondents, as the party seeking early disclosure, must establish an arguable relevance foundation and that the information is needed in advance of the Rule 16 timeline to file their response: see, for example, Higgins v. Humber River Regional Hospital, 2011 HRTO 1074 and Dewdney v. Toronto Transit Commission, 2012 HRTO 2212.

21The respondent TTC notes that it requires an order from the Tribunal to allow access because the expectations and protections regarding disclosure under PHIPA may be different from the duty imposed on employers by the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 ("OHSA"). While the former permits use and disclosure of personal health information for the purposes of a proceeding, the latter allows for access to medical records only with the employee's consent or by an order of a court or tribunal or in order to comply with another statute.

22Before determining the specific requests, I will canvass the applicable statutory provisions and the general legal principles of disclosure.

What does the PHIPA prescribe regarding access/disclosure?

23The respondent TTC indicates the sought after files are kept separate from other human resources documents and that privacy of the applicant's personal health information is protected in accordance with PHIPA, as well as pursuant to the collective agreement between the parties.

24In Dewdney, supra, the Tribunal discussed various provisions of PHIPA that relate to the use and disclosure of personal health information in circumstances somewhat similar to the present case. The Tribunal noted that a critical element of the statute involved the safeguarding of confidential health information and, therefore, parties must be aware of the obligations imposed by the Act in seeking the use and disclosure of personal health information. The Tribunal explained that the OHCM unit comes under the 'recipient' rules of the PHIPA because OHCM staff receive employees' medical information from various health care practitioners and the TTC's medical consultant, those individuals designated as "health information custodians" under PHIPA. As 'recipients' of health information received in the course of their duties managing disability claims and accommodation needs, OHCM staff are subject to privacy provisions in section 49(1) of the PHIPA.

25In accordance with section 49(1) of the PHIPA, a recipient of personal health information may only use and release such information for a range of permissible "purposes", such as: the use/disclosure is to comply with a statutory or legal duty; the use/disclosure is for the purposes of a proceeding in which the recipient is or is expected to be a witness or party; or to comply with a summons, order or procedural rule.

26The obligation to maintain the privacy of the employee health information is also reinforced by the TTC's accommodation program adopted through the collective bargaining process. The respondents' collective agreement provides that all OHCM staff, whether or not health care practitioners, are governed by the same confidentiality guidelines that apply to the TTC's medical consultant, who as a licensed physician is bound by the PHIPA requirements for "health information custodians". By virtue of sections 37(1)(h) and 41(1)(a) of the PHIPA, a health information custodian may use and disclose health information without consent of the individual "for the purpose of a proceeding or contemplated proceeding" in which the custodian "is expected to be a party or witness" or for the purposes of complying with a summons, order or procedural rule.

27In summary, OHCM staff, as recipients of health information under section 49, and the TTC's medical consultant, as a health information custodian under sections 37(1)(h) and 41(1)(a) of the PHIPA, may only use and disclose the applicant's personal health information contained for the purposes of carrying out a statutory or legal duty; to participate as a party or witness in a proceeding; and/or to comply with a summons, order or procedural rule.

What does the OHSA prescribe regarding access and/or disclosure?

28The respondent TTC notes that it seeks an order from the Tribunal authorizing disclosure because of the potential statutory conflict between PHIPA and the OHSA.

29The OHSA deals with health and safety issues in the workplace and establishes procedures in connection with workplace hazards. Section 63 of the OHSA addresses the protection of various types of confidential information. Subsection 63(1)(f) provides that no person shall disclose information obtained in any medical examination, test or x-ray of a worker made or taken under the Act unless in non-identifiable format. Subsection 63(2) sets out when an employer can access health records of an employee:

Employer access to health records

(2) No employer shall seek to gain access, except by an order of the court or other tribunal or in order to comply with another statute, to a health record concerning a worker without the worker's written consent.

Subsection (6) notes that the confidentiality provisions of section 63 prevail despite anything to the contrary in PHIPA.

What does the WSIA prescribe regarding access and/or disclosure?

30Although the respondents seek access to the applicant's WSIB files, no party provided submissions on how provisions of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A ("WSIA") may impact a disclosure request in non-WSIB proceedings and how the WSIA may interact with PHIPA and OHSA.

31I note that the WSIA establishes a duty of confidentiality on employers and prohibits employers from disclosing workers' health information unless specifically permitted by the WSIA: sections 37(4), 59(6) and 181(3). Section 180(4) of the WSIA expressly provides that medical information furnished to, or obtained by, the WSIB is "privileged" and "shall not be produced in any action or proceeding". This provision appears to relate to medical information supplied to the WSIB regarding benefit claims and any medical assessments that the WSIB requires a worker to undergo to determine permanent impairment. Further, section 150(1) states that an employer or employer's representative who contravenes subsections 37(4), 59(6) or 181(3) is guilty of an offence.

Summary of Provisions

32Although the applicant does not consent to disclosure, it appears that pursuant to section 49(1) of the PHIPA, the OHCM staff and the TTC's medical consultant may access and disclose the applicant's OHCM files for the purposes of their participation in this proceeding as potential witnesses for the respondents. Disclosure is also permissible in accordance with section 63(2) of the OHSA by an order of the Tribunal. In light of the WSIA provisions which seem to establish a strict duty of confidentiality and statutory privilege over WSIB benefit claims documentation and medical reports, it is unclear to what extent the respondents can obtain production of the WSIB materials.

33In summary, as parties or witnesses, the respondents may, under PHIPA and/or by order of the Tribunal under OHSA, obtain some disclosure of the applicant's personal health information contained in the OHCM files for the purposes of participating in this proceeding. However, it is unclear whether or not disclosure of the WSIB files is permitted under the WSIA and there remains a question as to the breadth of access, or in other words, how much disclosure, is appropriate. I now turn to the scope of the respondents' requests and will deal with the issue of whether any limits should be placed on the disclosure.

Analysis of Request

34The TTC submits that it needs all of the applicant's OHCM and WSIB files going back to 2006 in order to review the documentation with instructing parties and witnesses involved in this matter to defend against the applicant's allegations, as well as to advance its position that parts of the Application are out of time.

35The Union submits full disclosure of the applicant's OHCM and WSIB files is required to address the issue of accommodation and whether the seniority transfer was necessary in the circumstances.

36The applicant submits the respondents have sufficient knowledge of the facts and issues in relation to the seniority transfer and, therefore, do not need to access all of his past medical information to respond to the allegation that the denial of seniority transfer is discriminatory.

37I agree with the applicant that the issues that are live between the parties at this stage of the proceeding warrant limited disclosure of the OHCM files. I find that, for the reasons set out below, the applicant's health records contained in the OHCM files from 2006 to 2010 are not arguably relevant to the applicant's allegations of discrimination. Also, I am concerned about ordering production of the WSIB files at this stage in the absence of submissions from the parties about the WSIA.

38It is well-established that a party seeking production of information must demonstrate that information is "arguably relevant", or in other words, establish a nexus between the sought-after material(s) and the subject-matter of the application: McKay v. Toronto Police Service Board, 2009 HRTO 1220. The Tribunal has described the analytical approach to assessing "arguable relevance" as follows at para 13 of that decision:

The first step in determining what is relevant is the identification of the cause of action's facts and the surrounding substantive law: Neusch, supra. A nexus may be established if the sought-after information goes to prove or disprove a fact or issue in dispute or provides an inferential link to support a theory of the case or line of defence. If the materials sought meet this threshold standard of "arguable relevance", the Tribunal must next consider whether there any other issues or concerns, such as privilege or privacy, which may require a determination of terms and conditions upon which production may be ordered. Further, a finding that a document is arguably relevant for production does not mean that such information will necessarily be admissible as evidence at the hearing on the merits.

39Documents that meet the "arguable relevance" threshold may not be disclosed or may be subjected to limited disclosure if there are extenuating circumstances, such as privilege claims or privacy concerns that need reconciliation or protection. The Tribunal must consider, as recognized in McKay, supra, whether the disclosure is connected to an issue in dispute and if fairness in the circumstances requires that production be subject to certain limitations, terms or conditions, in particular to address such matters as privilege or confidentiality.

40In order to assess what exactly is arguably relevant to this Application, I asked the applicant to confirm what aspects of his narrative constituted live allegations, namely what facts and claims he is asserts give rise to a Code infringement.

41The applicant clarified that his live allegations start from June 2012, when he sought to act upon the alleged February 2010 promise that his seniority would be transferred on compassionate grounds. The applicant indicates that all other details in the Application narrative from 2006 to June 2012 are background to his claims regarding the unfair denial of seniority transfer. The applicant concedes that he is not challenging the suitability of his current position, nor disputing any medical restrictions with respect to the new position.

42The respondent TTC seeks the entire contents of applicant's OHCM and WSIB files, claiming the documents are arguable relevant to the topics of the applicant's injuries, his medical restrictions, WSIB benefits, the seniority transfer discussions and accommodation efforts.

43While I agree that the Application raises matters with respect to the applicant's medical restrictions, I do not agree that all of the applicant's medical history from 2006 is relevant to the promise allegedly given in 2010 to grant a seniority transfer. It is also unclear to me how the applicant's past health is relevant to the issue of why his seniority transfer was allegedly denied in June 2012 and why seniority is not being transferred going forward.

44I am concerned that the respondents are seeking access to the entirety of the applicant's OHCM files. Given the applicant's acknowledgment that the disability-related circumstances pre-dating the seniority transfer issue are not live allegations and that he is not challenging the respondents' efforts of accommodation prior to commencing his search for a new job, it does not appear that the matters in dispute necessitate a review of the applicant's medical history going back to 2006. The applicant's allegations of Code violations are vis a vis the alleged promise to transfer seniority in February 2010 and the alleged denial of the transfer in June 2012. As such, I find the applicant's OHCM files only from 2010 and onwards are arguably relevant to the seniority transfer allegations.

45The respondent Union argues that disclosure of the applicant's past medical history is necessary because there may have been other suitable positions in the applicant's original department which negated the need for a seniority transfer. However, even considering this line of defence, it is unclear to me why disclosure preceding the 2010 time period is required. While I understand the Union's argument that any disadvantage in the applicant's current job is due to his refusal to accept the positions offered to him previously, I do not agree that the respondents require the applicant's entire medical history from 2006 in order to make a defence that suitable alternate positions existed in 2010 or 2012. The investigation into suitable alternate positions pertains, at the earliest, to 2010 when the applicant alleges discussions took place which included an assurance that he could transfer his seniority. I am not persuaded that OHCM files from 2006 to 2010 are necessary to establish suitable alternate positions were available to the applicant when the parties allegedly engaged in seniority transfer discussions.

46In light of the applicant's confirmation as to what aspects of his narrative are background and what constitute live allegations, the contested claims revolve around the alleged seniority transfer discussions in and around February 2010 leading to the applicant's request for a transfer in June 2012 and the alleged on-going refusal to transfer. As such, I do not accept that all of the applicant's health information from 2006 is arguably relevant to the seniority transfer issues.

47Other than the issue of the applicant's medical restrictions, and the corollary issue of suitable alternate positions, the respondent TTC offers only one other rationale for seeking disclosure of the applicant's full OHCM and WSIB files. The respondent TTC argues this information is necessary for the purposes of assessing delay.

48Given the applicant's acknowledgement that his live allegations commence in June 2012, I do not agree that access to the applicant's medical history from 2006 is helpful to assess the timeliness of the Application. The applicant submits the details of the events prior to the seniority transfer discussions provide background to the allegations regarding the denial of seniority transfer. As such, the applicant has effectively conceded that the Application does not challenge the accommodation process prior to the issues surrounding the seniority transfer request and, therefore, the timeliness of those events is no longer germane.

49If the respondent TTC asserts that the allegations with respect to aspects of the seniority transfer allegations are untimely and disclosure is necessary to advance this position, the respondent can raise this issue in their Response and at that time explain why and what disclosure is warranted.

50Thus, I find that a fair and just resolution of the issues favours limited disclosure. At this stage of the proceeding, only the OHCM files from 2010 and onwards in relation to the issues of the alleged promise and denial to transfer seniority and suitable alternate positions may be disclosed. In addition, I find that the disclosure of the WSIB files must be denied at this time. It appears that the WSIA provisions may arguably impact the ability of the Tribunal to order production of the WSIB files for use in this proceeding because certain WSIB-related medical documentation may be privileged.

51I note recently the Tribunal has held that an employer may only disclose documents from an applicant's WSIB file with the applicant's consent or by order of the Tribunal: George v. Tinnerman Palnut Engineered Products (Canada) Corp., 2013 HRTO 765. Given the lack of submissions from the parties regarding the confidentiality provisions of the WSIA, I am not prepared to order disclosure of the applicant's WSIB files, even as part of the OHCM records, at this stage of the proceeding. Should any party seek to renew the request for access to the WSIB files at a later point in this proceeding, consideration must be given to whether notice needs to be provided to the WSIB in order for the WSIB to have an opportunity to respond to the request and make submissions regarding the statutory privilege.

52I determine that the non-WSIB related health information in the applicant's OHCM files from 2010 and onwards is arguably relevant to the applicant's allegations surrounding the issue of seniority transfer. Although I am ordering limited disclosure at this time, if any party requires additional disclosure of a more expanded temporal scope or arguably relevant to another topic or pertaining to the WSIB files, such a request can be made and the basis for such a request explained after the completion of the pleadings.

53In conclusion, I find that the applicant's non-WSIB related health information in the OHCM files from 2010 and onwards can be disclosed as arguably relevant to the factual and legal issues in dispute regarding the seniority transfer. I also find the applicant should be entitled to access and use the same documents, subject to any privilege claims by the respondents, for the purposes of submitting his Reply.

54All parties are reminded that Rule 3.3 of the Tribunal's Rules states parties may not use documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal.

REQUEST TO AMEND

55Subsequent to the teleconference, the applicant filed a request to amend the Application to remove his compensatory claim in order to focus the issues on the denial of seniority. The respondent TTC filed a response indicating that it consents to the applicant's request to amend without conceding any damages were suffered or should be awarded.

ORDER

56The Tribunal orders as follows:

i. The respondent TTC is granted disclosure and access to non-WSIB related health information in the applicant's OHCM files from January 2010 and onwards;

ii. The respondent TTC is required to provide a copy of the documents identified in (i), subject to any privilege claims, to the Union and the applicant;

iii. Only advisors, instructing parties and potential witnesses (in relation to information contained in the disclosed health files) are permitted to access and use the records as identified in (i);

iv. The respondents' requests for an extension of time to file their Responses are granted. The respondents are required to file their Responses within 35 days from the date of this Interim Decision; and

v. The applicant's request to amend the Application to remove his compensation claim is granted.

57I am not seized of this matter.