Gaetano Tiano v. City of Toronto, 2013 HRTO 863

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gaetano Tiano

Applicant

-and-

City of Toronto

Respondent

-and-

Toronto Civic Employees’ Union, Local 416

Intervenor

INTERIM DECISION

Adjudicator: Paul Aterman

Date: May 17, 2013

Citation: 2013 HRTO 863

Indexed as: Tiano v. Toronto (City)

WRITTEN SUBMISSIONS

City of Toronto, Respondent

Heather Crisp, Counsel

background

1The applicant filed this Application 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 on a number of prohibited grounds. In Interim Decision 2013 HRTO 32 the Tribunal ruled that this Application could proceed, but only in relation to the applicant’s allegation that the respondent failed to accommodate his disability. The hearing of the Application is scheduled to begin on October 3, 2013.

2This Interim Decision deals with a request by the respondent for the production of two groups of medical documents relating to the applicant. One group of records is retained by the respondent’s Employee Health and Rehabilitation Unit ("EHR"). The other group consists of the clinical notes and records of the medical practitioners who treated the applicant for his knee injury..

3The applicant is an employee of the respondent. He suffered a knee injury in 2009. He alleges that he supplied the respondent with various medical reports in 2010 and 2011 because the respondent indicated to him on more than one occasion that the necessary medical information to assess his workplace restrictions was not on file, or that what he provided was insufficient.

4The respondent indicates that any medical records the applicant would have submitted to his employer would be retained by the EHR, and that in order to respect the confidentiality of medical records, the respondent’s managers and counsel do not have access to the EHR file. It maintains that these records are arguably relevant to the issue of what the respondent knew of the applicant’s disability and what steps it took to accommodate it.

5It also argues that the applicant has made reference to treatment he received from at least three doctors. It maintains that the records kept by these practitioners would likely contain information as to what the applicant told them about his condition, how they diagnosed and treated it and what restrictions or accommodations they might have identified. While this group of records may overlap with what is in the EHR file, the respondent does not know whether this is the case. Accordingly, it also seeks production of all clinical records and notes of all medical practitioners who saw the applicant for his knee(s) from June 8, 2009, when he was first injured, until the date of the Application on May 8, 2012.

6The applicant has made no submissions to the Tribunal in response to this request. However, he did write to the respondent on April 22, 2013, indicating that he consents to the production of his EHR file. The respondent forwarded this letter to the Tribunal.

analysis

7In McKay v. Toronto Police Services Board, 2009 HRTO 1220 at paragraphs 12-13, the Tribunal set out the test for pre-hearing disclosure as follows:

The threshold test for disclosure at the pre-hearing stage of a human rights proceeding is “arguable relevance”, which requires that there be some relevance between the sought-after material(s) and the subject matter of the complaint. The party seeking production must demonstrate a nexus between the information or document sought and the facts or issues in dispute before the Tribunal: Neusch v. Ontario (Ministry of Transportation), 2002 CanLii 46508.

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 are 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.

8The documents requested by the respondent clearly meet the test of arguable relevance. The central issues in this Application are the nature and extent of the applicant’s disability, and what the respondent knew and acted upon in order to accommodate it. The applicant’s EHR file and the medical records relating to treatment of his knees from the date of his first injury speak directly to these questions. No issues of privilege or privacy have been raised that might affect the scope of production.

9I note that the applicant’s April 22 letter to the respondent appears to communicate his consent to disclose the EHR file, but he has not advised the Tribunal directly of his agreement. In addition, the letter does not appear to address the other branch of the respondent’s request. In order to avoid any uncertainty, I will order production of both groups of documents requested by the respondent.

order

10The respondent’s request is granted.

11The City of Toronto Employee Health and Rehabilitation Unit is directed to produce its file on the applicant to the respondent within 14 days of the date of this Interim Decision.

12The applicant is to produce to the respondent a copy of all clinical records and notes of all medical practitioners who saw the applicant for his knee(s) from June 8, 2009, when he was first injured, until the date of the Application on May 8, 2012. The applicant is to produce these records within 30 days of the date of this Interim Decision.