Stenabaugh v. Sokoloff Lawyers, 2013 HRTO 621

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark Stenabaugh

Applicant

-and-

Sokoloff Lawyers and Donald Clarke

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: April 15, 2013

Citation: 2013 HRTO 621

Indexed as: Stenabaugh v. Sokoloff Lawyers

APPEARANCES

Mark Stenabaugh, Applicant

Zane Roth, Counsel

Sokoloff Lawyers and Donald Clarke, Respondents

Wendy Sokoloff and Doug Wright, Counsel

Introduction

1This Application was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on October 20, 2011, and alleges discrimination with respect to employment on the basis of sex and sexual orientation. The Application is scheduled to be heard on April 22 and 23, 2013.

2On April 1, 2013, the respondents delivered to the applicant and filed with the Tribunal a Request for an Order During Proceedings (“Request”) seeking production of the applicant’s psychiatrist’s records. On April 3, 2013, the applicant delivered and filed a Response opposing the respondents’ Request. On April 11, 2013, the Tribunal held a case management conference call to hear further submission from the parties on the respondents’ Request for production, and on whether or not it would be appropriate to bifurcate the hearing in this matter as between issues of liability and remedy.

3The purpose of this Interim Decision is to address the respondents’ Request for production and the issue of bifurcation.

The applicant’s allegations and the respondents’ Response

4In his Application, the applicant alleges that he was subjected to discrimination when the individual respondent, Mr. Clarke, asked him an inappropriate question about his health when he returned to the office following a medical appointment on or about December 30, 2010. The applicant also alleges that every time he required time off for follow-up medical appointments he was questioned about the reason he was going, and when he returned to the office he was called upon to see what the doctor had said. The applicant also alleges that there were no workplace policies in effect, and no one that he could complain to.

5The applicant also refers in his Application to discussing the alleged December 30, 2010 incident with his psychiatrist, Dr. Aaron Malkin. The applicant alleges that he felt nervous, anxious and intimidated to the point that he hated going to work and dreaded getting up in the morning.

6In their Response to the Application, the respondents deny all of the applicant’s allegations, and submit that he did not register a complaint until after his employment was terminated for cause on August 5, 2011.

7In his Reply to the respondents’ Response, the applicant alleges that he was suffering from unnecessary and undue stress and mental anguish, and that he spoke to his psychiatrist, and continues to do so, about his treatment at Sokoloff Lawyers. He also explains that he is seeking $25,000 solely based on his mental anguish, stress and anxiety that he has suffered, and continues to suffer, from this ordeal. He states that it has been continually on his mind, and has caused him continually and unfairly to be upset physically, emotionally and mentally.

REQUEST

8In their Request, the respondents submit that the applicant has put his mental health at the time of the alleged incident, and prior to that, into question. They submit that it would not be fair for the respondents to not be entitled to the applicant’s psychiatric records from the date of the alleged incident and onwards. They also submit that applicant’s psychiatric records from five years before the alleged incident are relevant because the applicant claims that the respondents are entirely to blame for his alleged mental anguish.

9In his Response to the respondents’ Request, the applicant submits that the Request should be dismissed as he only intends to rely on his doctor’s viva voce evidence at the hearing, and not his notes and records. He explains that he intends to call Dr. Malkin to provide evidence with respect to his pre-existing medical condition, and the impact of the incident in question on his mental health.

10At the case management conference call, the applicant indicated that it was not definite that he would call Dr. Malkin as a witness. The respondents submitted that they require copies of Dr. Malkin’s records in any event, and that the records are relevant to both the applicant’s credibility and the issue of remedy. They queried whether or not the applicant actually complained to his psychiatrist about the alleged discrimination. The respondents were opposed to bifurcating the hearing, and submitted that the requested records were relevant to both the issues of liability and remedy.

11The applicant objected to the respondents’ Request based on the respondents’ delay in bringing the Request, but acknowledged that he had raised his emotional state. He disagreed that the requested records were relevant to the issue of liability, and was “on the fence” with respect to the issue of bifurcation.

12The respondents, in reply, submitted that they did not know that the applicant was calling his psychiatrist as a witness until they received the applicant’s witness list on March 4, 2013. The applicant’s March 4, 2013 witness statement for Dr. Malkin states that he will speak to the psychological impact of the incident on the applicant in the immediate aftermath thereof and over time.

13In my view, the respondents could have brought their Request for production a few weeks earlier, when they were made aware that the applicant intended to call Dr. Malkin as a witness. However, the applicant should also have anticipated that a request for production of medical records would likely follow his advising the respondents that he intended to call Dr. Malkin as a witness. In all of the circumstances, I am not prepared to dismiss the respondents’ Request based on the lateness of the Request.

14The Tribunal has held that parties must disclose non-privileged documents that are “arguably relevant” to an issue in the Application, although the disclosed documents may not necessarily be admitted as relevant at the hearing: Lampi v. Princess House Products Canada, 2008 HRTO 1.

15While Rule 16.1 of the Tribunal’s Rules of Procedure requires a party to produce arguably relevant documents “in their possession”, the Tribunal has also commented on a party’s responsibility to obtain and disclose arguably relevant medical documents, as follows, in Buttar v. Hamilton Regional Police Service, 2012 HRTO 1750 at para. 13, where an applicant intended to rely on medical reports but had not disclosed the underlying medical documents:

With regard to medical records, if arguably relevant medical records are in a party’s possession, then these need to be produced pursuant to Rule 16.1. If, however, these medical records are not in a party’s possession but instead are in the possession of a doctor, then Rule 16.1 does not go so far as to require the party to obtain and disclose those records at that time. At the same time, where a party’s medical condition is a central issue in the proceeding and where the party seeks to rely upon medical reports in support of their position, it can reasonably be expected that such records will be regarded as arguably relevant to the proceeding and the party should make some reasonable effort to obtain such records. This is how I read this Tribunal’s decision in Drost v. Ottawa-Carleton District School Board, 2012 HRTO 235, where a statement about an applicant’s responsibility to obtain and disclose arguably relevant medical documents was made in the context of an applicant who was attempting to resist a respondent’s request for production because it was untimely. …

16In the present case, the applicant has indicated that he is seeking $25,000 solely based on his mental anguish, stress and anxiety that he has suffered, and continues to suffer, as a result of the alleged discrimination. He has also indicated that he intends to call Dr. Malkin as a witness to speak to the psychological impact of the alleged discrimination on him. In my view, the underlying medical documents related to the applicant’s mental health after the alleged incident on December 30, 2010 are arguably relevant and should have been produced.

17With respect to the respondents’ request for production of records going back five years from the alleged December 30, 2010 incident, I find that five years is excessive. In my view, the applicant’s medical records related to his mental health in the year prior to the alleged December 30, 2010 incident are likely sufficient to capture any pre-existing medical condition. In my view, these documents are arguably relevant and should be produced.

18The applicant has also indicated in his Application that he discussed the alleged December 30, 2010 incident with Dr. Malkin, and, in his Reply, that he spoke to his psychiatrist and continues to do so about his treatment at Sokoloff Lawyers. In my view, Dr. Malkin’s records of any such discussions are also arguably relevant and should be produced. I also agree with the respondents’ submissions that these latter documents, in particular, are arguably relevant to both the issues of liability and remedy.

BIFURCATION

19With respect to bifurcation, as it appears that some of the requested documents that I have ordered be produced below may be relevant to both issues of liability and remedy, it appears that it may be more expeditious to hear the evidence relating to both liability and remedy on the scheduled hearing dates. Accordingly, the hearing will proceed with respect to both the issues of liability and remedy on the currently scheduled hearing dates.

ORDER

20The Tribunal orders that the applicant deliver to the respondent and file with the Tribunal the following medical records from Dr. Aaron Malkin, by April 19, 2013:

1. All arguably relevant records related to discussions the applicant had with Dr. Malkin concerning the alleged incident on December 30, 2010 and the applicant’s treatment at Sokoloff Lawyers.

2. All arguably relevant records related to the applicant’s mental health, including any pre-existing medical condition, from December 30, 2009 to the present.