Kenlen George v. Tinnerman Palnut Engineered Products (Canada) Corp., 2013 HRTO 765

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kenlen George

Applicant

-and-

Tinnerman Palnut Engineered Products (Canada) Corp., A. Raymond Tinnerman Manufacturing Hamilton Inc., Slava Banfi, Matthew Dusureault and Carl Vegelj

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: May 8, 2013

Citation: 2013 HRTO 765

Indexed as: George v. Tinnerman Palnut Engineered Products (Canada) Corp.

APPEARANCES

Kenlen George, Applicant

Erin Hallock, Counsel

Tinnerman Palnut Engineered Products (Canada) Corp., A. Raymond Tinnerman Manufacturing Hamilton Inc., Slava Banfi, Matthew Dusureault and Carl Vegelj, Respondents

Richard Nixon, Counsel

Introduction

1This Interim Decision addresses the production requests filed by each party in this matter prior to the hearing which is scheduled to take place May 27-29, 2013.

scope of applICation

2The applicant claims that the respondents discriminated against her because of family status and disability. She also claims that the respondents reprised against her contrary to the Human Rights Code, R.S.O. c. H. 19, as amended (the “Code”). She claims that the respondents discriminated against her because of disability by failing to accommodate her disability, by allegedly failing to engage in a good faith investigation to assess how to accommodate her disability, and by allegedly acting in bad faith to pursue a claim of “just cause” to justify the termination of her employment.

3The applicant suffered a work-related injury to her knee on January 14, 2008. She filed a claim with the Workplace Safety and Insurance Board (“WSIB”) which was approved. She filed a second claim with the WSIB with respect to a right hip injury that she claimed was related to her knee injury. The applicant’s employment was terminated on September 23, 2010.

Production of Documents

4It is well-established that a party seeking production of documents must demonstrate that the information is “arguably relevant” to the proceeding and, if the requested information triggers concerns regarding privacy or privilege, that any such interests in confidentiality are outweighed by principles of fairness. See McKay v. Toronto Police Service Board, 2009 HRTO 1220 (“McKay”).

5The “arguable relevance” threshold has been described as “not a particularly high bar”. See Nassiah v. Peel Regional Police Services Board, 2006 HRTO 18, at para. 8, and the cases cited therein. While “arguable relevance” may not be a high onus for the requesting party to satisfy, there must be a nexus between the sought-after material(s) and the subject-matter of the application. The Tribunal in McKay, explained the analytical approach to assessing “arguable relevance” as follows, at paragraph 13:

The first step in determining what is relevant is the identification of the cause of action’s facts and the surrounding substantive law…. 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.

6The second step of the disclosure analysis requires consideration of other interests, such as confidentiality and fairness. Documents meeting the “arguable relevance” threshold may not be disclosed or may be subjected limited disclosure if there are extenuating circumstances, such as privilege claims or privacy concerns that need reconciliation or protection. In Lampi v. Princess House Products Inc., 2008 HRTO 1 at para. 10, the Tribunal noted that

[d]ocuments which are arguably relevant may nevertheless not be ordered disclosed if they are privileged, the probative value is outweighed by potential prejudice to the party producing them, or if the timing of the request risks derailing a just and expeditious hearing.

7Consequently, in assessing the disclosure requests, the Tribunal must also consider whether fairness in the circumstances requires that production be subject to certain limitations, terms or conditions, in particular to address such matters as confidentiality.

applicant’s production request

8The applicant filed a Request for Order During Proceedings (“Request”) on April 8, 2013 seeking the production of all documents listed in the index to the respondents’ book of documents that have not been disclosed to the applicant on the basis of claims that they contain some of the applicant’s personal health information or because they formed part of her WSIB file. The respondents identified the documents in question by shading them in grey on the index to their book of documents. Through her counsel, the applicant has already consented to the disclosure of the documents being sought in Request, although she has not yet provided her personal consent in writing.

Documents from Applicant’s WSIB File

9The respondent acknowledges that it is currently in possession of a copy of the Applicant’s WSIB file that is current up to October 21, 2010. The documents sought to be produced by the applicant are documents that the respondent claims to be relevant that it intends to rely upon at the hearing. However, the respondents claim they would be in violation of ss. 59(6) and 181(3) of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A (“WSIA”) if they disclosed any documents from the applicant’s WSIB file even with her consent or in compliance with an order from the Tribunal.

10Respondent’s counsel made clear that he was very concerned about exposing his clients to any possible form of liability for violating ss. 59(6) and 181(3) of the WSIA. He also stated that a complaint had been made to the Law Society of Upper Canada against one of his colleagues for disclosing health information from the WSIB file of one of its clients’ employees. However, he acknowledged that the employee in that case had not provided her consent.

11Sections 59(6) of the WSIA provides:

Duty of confidentiality

The employer and the employer’s representatives shall not disclose any health information obtained from the Board except in a form calculated to prevent the information from being identified with a particular worker or case.

12Section 181(3) provides:

No employer or employer’s representative shall disclose health information received from a health care practitioner, hospital, health facility or any other person or organization about a worker who has made a claim for benefits unless specifically permitted by the Act.

13This case presents a variation on the typical scenario that arises before the Tribunal. Typically, in cases where this issue has arisen, a respondent has requested the applicant’s consent to disclose documents contained in his or her WSIB file for the purposes of the Tribunal’s proceedings and the applicant refuses to consent. In such cases, the Tribunal frequently directs the applicant to provide consent to the production of all documents from his or her WSIB file that are identified as arguably relevant to the issues before the Tribunal. See, for example, Touseant v. Thunder Bay (City), 2009 HRTO 1138 at para. 7 and Hendy v. Nartech Metal Products, 2012 HRTO 601 at para. 9. In these decisions, the Tribunal has found that ss. 59(6) and s. 181(3) of the WSIA do not bar an employer from disclosing documents from an employee’s WSIB file with the employee’s consent or by order of the Tribunal. I agree with this interpretation of these provisions as they are intended to preserve an employee’s interest in the confidentiality of the documents from his or her WSIB file. These provisions do not bar the disclosure of documents from the file where an employee waives their confidentiality interests for the purposes of a proceeding by consenting to the disclosure of documents from their WSIB file in that proceeding.

14I understand and appreciate the concerns expressed by the respondents’ counsel about the claim to the Law Society filed against his colleague. However, a key difference in that case was that the employee involved had not provided his or her consent. In this case, the applicant has not only indicated that she freely consents to the respondents’ disclosure of the documents obtained from her WSIB file, she has in fact taken the additional step of requesting that it disclose the relevant documents and, moreover, sought an order from the Tribunal compelling the respondents to do so. It seems to me that this should allay the concerns of counsel for the respondents.

15I also understand and appreciate the argument by respondents’ counsel that, in his view, a more appropriate solution would be for the Tribunal to order the applicant to disclose her entire WSIB file to the respondents and also presumably file it with the Tribunal. In my view, if the respondents wish to rely upon the documents identified in the index to its book of documents, it is their responsibility to produce the documents. As I have found, I do not agree that the respondents would be in violation of 59(6) and 181(3) of the WSIA by disclosing the documents when the applicant has requested their production and made clear that she waives any confidentiality or privacy interests she has over them for the purposes of this proceeding.

16Accordingly, the Tribunal orders the applicant to provide her personal consent in writing to the respondents’ counsel for the disclosure of the documents identified in the index to the respondents’ book of documents that form part of the applicant’s WSIB file. The respondents are ordered to produce copies of these documents to the applicant and file copies with the Tribunal.

Other Health Information in Respondents’ Possession

17It is unclear why the respondents refused to disclose copies of the documents that contain some of the applicant’s health information but do not form part of her WSIB file. It appears that the respondents are concerned about exposing themselves to any future forms of liability arising from such disclosure.

18It is unclear whether the information at issue is subject to the Personal Health Information Protection Act, S.O. 2004, c. 3 (“PHIPA”) and respondents’ counsel did not argue that it was. However, I note that even personal health information that is subject to the PHIPA may be disclosed with the consent of the individual. A custodian of such information is also authorized to disclose personal health information for the purpose of a proceeding in which the custodian is a party or for purposes of complying with an order or procedural rule. See PHIPA ss. 29, 37(1)(h), and 41(1)(a).

19In this case, the applicant has indicated that she consents to the disclosure of the personal health information listed in the index to the respondents’ book of documents. Not only has she indicated her consent, but she has requested disclosure of these documents and has sought a production order from the Tribunal. This consent and the order from this Tribunal should fully allay the respondents’ concerns about disclosing these documents.

20Accordingly, the Tribunal orders the applicant to provide her personal consent in writing to the respondents’ counsel for the disclosure of the documents identified in the index to its book of documents that were not disclosed because they contain some of the applicant’s personal health information. The respondents are ordered to produce copies of these documents to the applicant and file copies with the Tribunal.

Respondents’ Request

21On May 1, 2013, the respondents filed a Request seeking production of:

a. the applicant’s entire WSIB file;

b. all of the applicant’s medical records in the possession of Dr. Laura Blew, all specialist doctors and all hospitals attended by the applicant.

Applicant’s WSIB File

22The respondents claim that all of the documents contained in the applicant’s WSIB file are arguably relevant to her Application. The respondents submit that the whole file is inextricably bound with the Application. In support of this submission, the respondents’ counsel points to the several references in the Application to the applicant’s WSIB file.

23I have already held that, if the respondent wishes to rely upon parts of the applicant’s WSIB file that it considers to be relevant, it must produce the relevant documents to the applicant and file copies with the Tribunal. For the reasons set out above, I find that ss. 59(6) and s. 181(3) of the WSIA do not bar such disclosure once the applicant has provided her consent. As such, I have ordered that the respondents produce the documents once the applicant has provided her personal written consent. In my view, this order is sufficient to ensure production of all documents from the applicant’s WSIB file that are in the respondents’ possession that they themselves identified as being arguably relevant.

24However, it does not address any documents in the applicant’s WSIB file that are not currently in the respondent’s possession – that is, documents after October 21, 2010. The respondents submitted that documents in the applicant’s WSIB file that post-date the applicant’s termination are also arguably relevant since the applicant is seeking reinstatement and lost wages as a remedy.

25I agree. I find that, since the applicant is seeking compensation for lost wages and/or reinstatement, medical information with respect to her ability to work up from the date of her termination up to present is arguably relevant to the issue of remedy and should be produced.

Applicant’s Other Medical Records

26The respondents seek all of the applicant’s medical records in the possession of Dr. Laura Blew, all specialist doctors and all hospitals attended by the applicant. The respondents submit that this information is arguably relevant since the applicant refers to several health care providers including Dr. Blew, Dr. Cameron, Dr. Saddler and Dr. Anderson. Counsel for the respondents acknowledges that the applicant has disclosed what she considers to be all arguably relevant medical information from Dr. Blew including excerpts of information from the specialists she consulted. The respondents submit that the applicant should not be “judge and jury” to decide what information is arguably relevant. The respondents submit that even if all the requested information may not appear to be arguably relevant to a lay person, “a medical expert may be able to determine that [the applicant’s] previous medical history is arguably relevant.”

27The applicant’s counsel submits that the respondents are on a “fishing expedition”. She submits that their request is overbroad in terms of the time period covered and the scope of the documents sought. In particular, she claims that any documents in the file that relate to the period following her termination are not arguably relevant. She also submits that the applicant is not assuming the role of judge and jury. She submits that the Tribunal’s Rules of Procedure require the parties to disclose all arguably relevant information. She argues that these Rules contemplate that the parties themselves will determine what is arguably relevant.

28Balancing the applicant’s right to maintain control over her medical information against the requirements of a fair, just and expeditious disposition of this matter, including consideration of the respondents’ right to answer the allegations, I find that medical information related to the injuries for which the applicant filed a WSIB claim and her ability to perform her work is arguably relevant and should be produced.

29To be clear, I order the applicant to arrange for disclosure of a full copy of all medical records in the possession of Dr. Laura Blew, and any specialists she consulted during the period from January 14, 2008 up to present that relate to the applicant’s knee, hip and lower back injuries and her ability to perform her work during the period from January 14, 2008 up to present. I find that such records are arguably relevant and should be produced to the respondents.

30I am not persuaded that any medical records beyond the ones I have identified are arguably relevant to this Application. In particular, I note that it is not the role of a medical expert to make decisions regarding arguable relevance. Arguable relevance is a legal concept that the Tribunal has the ultimate authority and responsibility to decide.

31Also, as the respondents acknowledged, unlike in a WSIB claim, the cause of the applicant’s injuries is not relevant to the issues before this Tribunal. The cause of the applicant’s injuries is irrelevant to the scope of the employer’s duty to accommodate. It is also irrelevant to the scope of the employees’ duty to cooperate with the accommodation process. Therefore, any possible causes of an employee’s disability and her disability-related work restrictions that may be discerned from reviewing her full medical records are of no arguable relevance to this proceeding.

32Also, I do not agree with the respondents that an employee’s full medical record from any and all medical professionals she has ever consulted is arguably relevant on the basis that a medical expert may be able to provide recommendations for steps she should take to improve her health. In my view, this extends beyond the scope of the issues before me which are limited to whether the respondent met its duty to accommodate, whether it terminated the applicant for discriminatory reasons or otherwise discriminated against or reprised against the applicant on the basis of disability and/or family status.

33I note that in her Application, the applicant has made allegations against a doctor, Dr. Grossman, selected by the respondents to conduct a health examination pursuant to s. 36 of the WSIA. The applicant’s precise allegations against Dr. Grossman as an alleged agent of the respondents are unclear. The applicant has alleged that Dr. Grossman, acting as an agent of the respondents, breached her privacy rights and breached the terms of the medical consent she had provided to him. However, I fail to see the nexus between those allegations and the Code. This will be an issue for the applicant to clarify in the hearing. It appears that the applicant’s only Code-related allegation against Dr. Grossman is that he failed to exercise his right to access her medical information from Dr. Blew and that this allegedly constitutes a failure by the respondents to act in good faith by investigating her medical restrictions to accommodate her disability. In my view, the production order I have made above is appropriate to ensure that the respondents are able to properly defend against this allegation.

ORDER

34The Tribunal orders as follows:

1. By May 14, 2013, the applicant shall provide her personal consent in writing to the respondents’ counsel for the respondents’ disclosure of the following:

a. the documents identified in the index to the respondents’ book of documents that were not disclosed by the respondents because they form part of the applicant’s WSIB file.

b. the documents identified in the index to the respondents’ book of documents that were not disclosed by the respondents because they contain personal health information of the applicant.

2. By May 17, 2013, the respondents shall produce to the applicant and file with the Tribunal copies of all documents listed in the index to their book of documents that they have to date not produced.

3. By May 17, 2013, the applicant shall produce to the respondents and file with the Tribunal all medical information contained in her WSIB file that relates her ability to work from the time of her termination up to present.

4. By May 17, 2013, the applicant shall arrange for disclosure to the respondents a full copy of all medical records in the possession of Dr. Laura Blew and any specialists consulted by the applicant, including Dr. Anderson, Dr. Cameron, and Dr. Saddler, during the period from January 14, 2008 to present that relate to the applicant’s knee, hip and lower back injuries and her ability to perform her work from January 14, 2008 to present.

5. By May 23, 2013, the parties shall file with the Tribunal copies of any additional documents that they intend to rely upon at the hearing that are being produced pursuant to this Interim Decision.