Jody Robinson v. Orillia Soldiers’ Memorial Hospital, 2013 HRTO 74

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jody Robinson

Applicant

-and-

Orillia Soldiers’ Memorial Hospital

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: January 15, 2013

Citation: 2013 HRTO 74

Indexed as: Robinson v. Orillia Soldiers’ Memorial Hospital

WRITTEN SUBMISSIONS

Jody Robinson, Applicant

David Baker, Counsel

Orillia Soldiers’ Memorial Hospital, Respondent

Brenda Bowlby, Counsel

INTRODUCTION

1This is an Application under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability and reprisal, contrary to the Code. Specifically, the applicant, who is employed by the respondent hospital as a pharmacy technician, alleges that the respondent has failed to accommodate her disability-related need to work in a scent-free environment by failing to adequately enforce its Minimal Fragrance Policy. In particular, and among other things, the applicant alleges that the respondent has not required the applicant’s coworkers to remove scent when it has been detected on them. In addition, the applicant alleges that the respondent has been unwilling to attempt to enforce its Minimal Fragrance Policy on a hospital-wide basis, resulting in the applicant being limited to working in the IV Oncology area.

2The respondent has not yet filed a Response to the Application. Rather, the respondent has filed a Request for an Order during Proceedings (Form 10) (“the Request”) seeking to have certain additional information made available to it by the applicant prior to the filing of its Response. In particular, the respondent seeks the following:

• An Order requiring the applicant to sign a written consent, pursuant to the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sch. A (“PHIPA”), in order to permit the respondent’s counsel to talk in an unrestricted manner about certain of the applicant’s personal health information with the respondent’s Occupational Health and Safety Manager and Physician and any other medical staff of the respondent who have provided treatment to the applicant in relation to her disability; and

• An Order requiring the applicant to provide the respondent with the names of coworkers who have allegedly worn scents to work and/or harassed the applicant.

3The applicant opposes both aspects of the respondent’s Request.

4Although the respondent proposed that a conference call be convened to address the above-noted Request, in my view, the matter is appropriately addressed based on the written submissions contained in the respondent’s Request and the applicant’s response to it. I note that this approach is consistent with the notice to the parties on the Form 10 itself that the Tribunal may decide to convene a hearing to deal with a Request for an Order during Proceedings or may determine the Request on the basis of the Form 10 alone.

REQUEST FOR CONSENT TO DISCLOSURE UNDER PERSONAL HEALTH INFORMATION PROTECTION ACT (PHIPA) BEFORE FILING A RESPONSE TO APPLICATION

5As noted above, the respondent seeks an Order from the Tribunal requiring the applicant to sign a written consent to the disclosure of her personal health information, pursuant to the PHIPA, in order to permit the respondent’s counsel to talk in an unrestricted manner about certain of the applicant’s personal health information with the respondent’s Occupational Health and Safety Manager (who is a registered nurse), Occupational Health and Safety Physician, and any other medical staff of the respondent who have provided treatment to the applicant in relation to her disability. The respondent submits that the Tribunal should require the applicant to consent to such disclosure of her personal health information prior to requiring the respondent to file a Response to the Application.

6Before determining the respondent’s Request, it is useful to set out some background.

Background

7Among other things, the purpose of the PHIPA is to “establish rules for the collection, use and disclosure of personal health information about individuals that protect the confidentiality of that information and the privacy of individuals with respect to that information, while facilitating the effective provision of health care”: s. 1(a) of the PHIPA.

8Section 4 of the PHIPA defines “personal health information” as “oral or recorded” identifying information about an individual that, among other things, relates to the individual’s physical or mental health and/or the provision of health care to the individual.

9Prior to filing the instant Request with the Tribunal, the respondent wrote to the applicant’s counsel to say that in order to prepare a Response to the Application, it would be necessary for the respondent to review “medical files” of the applicant held by the respondent hospital. The respondent took the position that since the records were governed by the PHIPA, the respondent would need the applicant’s consent in order to do so.

10To that end, the respondent asked the applicant to sign a written consent permitting the respondent’s Patient Records Department and the respondent’s Occupational Health and Safety Manager to disclose to the respondent’s legal counsel and to the applicant’s own legal counsel her “personal health information” consisting of:

a. All clinical notes, doctor’s reports/letters, charts or other health care records in the file relating to the applicant in the Occupational Health and Safety office of Orillia Soldiers’ Memorial Hospital; and

b. All clinical notes, doctors reports, charts or other health care records relating to any visit the applicant has had to the Emergency Department of Orillia Soldiers’ Memorial Hospital.

11The applicant responded by providing the respondent with a signed consent, subject to a couple of caveats. Most importantly, the applicant consented to the disclosure of her written personal health information only. She specifically did not consent to any verbal discussions about her personal health information with the respondent’s legal counsel. In addition, the applicant wanted her written personal health information disclosed to her own legal counsel at the same time that it was disclosed to the respondent’s legal counsel.

12The respondent takes the position that the disclosure to which the applicant has consented is insufficient to allow the respondent to meaningfully respond to the Application against it. In particular, the respondent submits that, in order to respond to the allegations against it, it needs to speak to its Occupational Health and Safety manager, who is a registered nurse, and its Occupational Health and Safety physician about the steps they took in dealing with the applicant’s disability on behalf of the respondent. The respondent submits that it cannot do this “except in an extremely limited way” without the applicant’s consent to discussions about her personal health information with the respondent’s counsel.

13Thus, the respondent seeks an Order from the Tribunal requiring the applicant to consent to the respondent’s counsel talking in an unrestricted manner with the respondent’s Occupational Health and Safety Manager and the respondent’s Occupational Health and Safety Physician, as well as any other medical staff of the respondent who have provided treatment to the applicant in relation to her disability. The Order sought would also authorize the disclosure of the applicant’s personal health information to other staff of the respondent who are involved in responding to the Application, as well as the applicant’s own legal counsel and the Tribunal.

14The respondent submits that, in the event that the applicant fails to comply with an Order from the Tribunal requiring her to provide the above-noted consent, her Application should be dismissed by the Tribunal.

Analysis and Decision

15Rule 16 of the Tribunal’s Rules of Procedure contemplates that parties to an Application will not be required to exchange arguably relevant documents until 21 days after the Notice of Hearing is sent out by the Tribunal, which in the normal course is after the Application, Response and any Reply have been filed.

16In some cases, respondents have asked the Tribunal to require applicants to produce arguably relevant documents or to provide particulars of their allegations prior to requiring the respondent to file its Response to the Application.

17In dealing with such requests, the Tribunal has emphasized that there are very limited circumstances where a respondent will not be required to comply with Rule 8 of the Tribunal’s Rules of Procedure by filing a full Response to an Application in a timely manner. Thus, the Tribunal has generally held that, absent 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; Ugolini v. Salvation Army Barrie, 2009 HRTO 1801; Wood v. Sears Canada, 2009 HRTO 2126; Juani v. Mississauga (City), 2010 HRTO 1298; Bose v. Ontario Reality Corporation, 2010 HRTO 1437; Rose v. Toronto Police Services Board, 2011 HRTO 1784; Miga v. Arcelor-Mital Dofasco, 2012 HRTO 619; Nuur v. Chubb Edwards a U.T.C., Fire, Security and Climate Company, 2012 HRTO 1312; De Wit v. City of Toronto, 2011 HRTO 2234; Cunningham v. Showa Canada Inc., 2012 HRTO 698.

18However, in other cases, the Tribunal has recognized that it may be appropriate to order an applicant to produce documents or to provide particulars at an early stage where it is necessary in order to ensure that the respondent is in a position to meaningfully respond to the Application: Bryer v. Toronto (City), 2010 HRTO 2389; Johnston v. Toronto Transit Commission, 2011 HRTO 923; Power v. Toronto Transit Commission, 2011 HRTO 1462.

19The principles outlined in the above-noted jurisprudence certainly provide a useful starting point for approaching the respondent’s Request in this case. That said, it must be borne in mind that, in the present Request, the respondent is not really seeking the early production of documents or the provision of particulars by the applicant. Rather, the respondent is asking that the Tribunal require the applicant to consent to the disclosure of oral personal health information by certain health care professionals to the respondent – disclosure that the respondent submits is otherwise prohibited by statute – before requiring the respondent to file its Response to the Application. In this regard, it seems to me that the respondent’s Request is somewhat distinct from requests for the early production of documents and/or particulars that the Tribunal has dealt with previously.

20Before turning to the respondent’s Request, I should also note that it is not entirely clear to me whether and/or to what extent the applicant’s consent is in fact required in order for the respondent’s Occupational Health and Safety Manager and/or Physician to disclose the applicant’s personal health information to the respondent’s legal counsel for the purpose of responding to the Application. In this regard, I note that the PHIPA appears to permit the disclosure of personal health information by a “health information custodian” for the purposes of legal proceedings in which the custodian is a party or witness. (s. 37(1)(h) and s. 41). In any event, it is not necessary for me to address this issue. This is because, assuming without finding that the applicant’s consent is required, I am not persuaded that the respondent would be prevented from meaningfully responding to the Application unless its Request is granted.

21As noted above, in this case, the applicant’s allegations that the respondent discriminated against her stem from the respondent’s alleged failure to take adequate steps to enforce its Minimal Fragrance Policy in the applicant’s workplace. The allegations thus appear to relate to the actions and/or inactions of the respondent’s managerial staff, and not the actions of health care professionals in the respondent’s Occupational Health and Safety department or other medical staff that treated the applicant in relation to her disability. Accordingly, it is not clear to me that the respondent needs to discuss the applicant’s personal health information with such individuals in order to respond to the allegations in the Application.

22I agree with the respondent that the applicant’s personal health information held in the respondent’s Occupational Health and Safety and/or Emergency departments may well be arguably relevant to the issues to be determined in this case and may therefore be subject to disclosure at some point in the proceedings. However, in my view, the respondent has not identified any exceptional circumstances that would cause the Tribunal to depart from its usual approach of requiring the respondent to file a Response to the Application before requiring the exchange of all arguably relevant documents and/or particulars.

23This aspect of the respondent’s Request is denied accordingly. The respondent is directed to file its Response to the Application on the basis of the information in its possession or control and/or that the applicant has already agreed to disclose to the respondent. To the extent that the Application contains allegations to which the respondent is unable to respond, or unable to respond at this point, it may state this in its Response to the Application. (It would not be unusual, for example, for a respondent to plead that it has no and/or insufficient knowledge of the existence of the applicant’s alleged disability and to hold her to the proof thereof in its Response.)

24Further directions regarding the respondent’s requirement to file a Response to the Application are below.

REQUEST FOR PARTICULARS

25In its Request, the respondent also seeks an Order requiring the applicant to provide the respondent with further particulars of certain of her allegations, and in particular the names of coworkers who have allegedly worn scents to work and/or harassed the applicant.

26The backdrop for this request is that, although in her Application to the Tribunal, the applicant has made numerous detailed allegations about coworkers who wore scent and/or scented products in the workplace but were not required to remove them by the respondent employer, the applicant has not provided the names of such coworkers in her Application. The Application also contains certain detailed allegations about at least one coworker allegedly harassing the applicant. Again, the names of coworkers alleged to have harassed the applicant are not provided in the Application.

27The respondent submits, and I agree, that it is entitled to know the names of the coworkers in question before responding to the Application. The applicant opposes the request on the basis that she has previously provided the names of the coworkers in question to the respondent. If that is so, however, it is difficult for me to understand why the applicant objects to confirming information that has previously been provided to the respondent.

28The respondent’s request for particulars is granted. To the extent that she has such information, the applicant is directed to provide the respondent with the names of the coworkers who have allegedly worn scents to work and/or harassed the applicant within seven (7) days of the date of this Interim Decision.

EXTENSION OF TIME

29Having determined that it is appropriate to require the applicant to provide certain particulars to the respondent before requiring it to respond to the Application, it is also appropriate to grant the respondent sufficient time to review the particulars before filing its Response to the Application. The respondent requests that it be granted an extension of time for the filing of its Response until 21 days from the date on which it receives the information from the applicant. The applicant agrees that this is a reasonable request. In the circumstances, the respondent is directed to file its Response to the Application within 21 days of the date on which it receives the above-noted particulars from the applicant.

ORDER

30In sum, the Tribunal makes the following orders:

a. To the extent that she has such information, the applicant is directed to provide the respondent with the names of the coworkers who allegedly wore scent to work and/or who allegedly harassed the applicant. Such particulars are to be provided to the respondent within seven (7) days of the date of this Interim Decision.

b. The respondent is directed to file its Response to the Application within 21 days of the date on which it receives the above-noted particulars from the applicant.

31I am not seized.