HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Tamra Baker
Applicant
-and-
Twiggs Coffee Roasters
Respondent
INTERIM DECISION
Adjudicator: Ruth Carey
Indexed as: Baker v. Twiggs Coffee Roasters
WRITTEN SUBMISSIONS
Tamra Baker, Applicant
Self-represented
Twiggs Coffee Roasters, Respondent
Joseph Kennedy, Counsel
1This is an Application filed 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 because of sex. The applicant claims her employment with the respondent was terminated because she was pregnant; the respondent claims the termination was due to poor work performance.
2On April 29, 2013 the respondent filed a Request for Order During Proceedings (RFOP) seeking production of a number of documents. The applicant objects to producing any of the documents requested.
3The respondent seeks:
a. All pay stubs received by the applicant for the period July 2012 to April 2013 from any employer other than the respondent;
b. Any documents regarding three job offers allegedly turned down by the applicant to accept the position with the respondent;
c. The applicant’s 2012 income tax return and notice of assessment; and
d. The applicant’s entire medical file in the possession of her family physician.
4The legal test for production of documents is not high. In Lampi v. Princess House Products Canada Inc., 2008 HRTO 1, the Tribunal stated at paragraphs 8 and 9:
The threshold for production and disclosure of documents before the Tribunal is “arguable relevance” – not a particularly high bar. There must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Tribunal: Neusch v. Ontario (Ministry of Transportation) (2002), 2002 CanLII 46508 (ON HRT), 43 C.H.R.R. D/171 (Ont. Bd. of Inquiry) at para 38.
Finding that documents are arguably relevant for production does not mean that such documentation will be admissible at a hearing: Neusch, supra at para 41.
5The applicant has claimed that she declined three offers of employment to accept the position with the respondent and denies working elsewhere at the time she filed the Application. The respondent disputes these claims. In any event, if the applicant is successful her claim for wage loss will be in issue. As such I am satisfied the documents in subparagraphs a, b and c are arguably relevant to material issues in dispute and should be produced to the respondent. With respect to the job offers, the applicant is only required to produce documents in her possession.
6The request that the applicant produce her entire medical file is overly broad. However, the applicant specifically states in her Application that she experienced stress and physical symptoms which she connects to the termination of her employment. She appears to rely upon these statements in support of her claim for compensation for injury to dignity, feelings and self-respect. Therefore, the applicant’s medical records before and after the termination of her employment are arguably relevant.
7The applicant argues in her response to the RFOP that the requested order is unnecessary as she has already disclosed a note from her doctor’s file and she intends to call her doctor as a witness so the respondent can ask him questions during the hearing. The note on file already disclosed, concerns a visit the applicant made to her doctor ten days after the termination of her employment and is not sufficient to reveal whether or not the applicant’s symptoms changed or worsened as a result of the termination as alleged in the Application. In addition, one of the purposes of document production is to help parties prepare for examination and cross-examination of witnesses so it is not an answer to the RFOP that the applicant currently intends to call her doctor as a witness.
8Given the sensitive nature of medical records and the legitimate privacy interests the applicant has in them, the request for an order for production of the entire medical file in the possession of the applicant’s family physician is not necessary. However, production of relevant medical documents for a reasonable period of time before and after the termination of employment shall be ordered. The applicant shall be ordered to deliver to the respondent: a copy of all documents in her family physician’s medical file that relate directly or indirectly to her pregnancy; and for the period starting July 13, 2011 to the end of the applicant’s pregnancy, any documents related to reports of stress or stomach pain and blood pressure readings taken.
ORDER
9The applicant shall deliver to the respondent the following by June 30, 2013:
a. a copy of any pay stubs showing income received from employers other than the respondent for the period commencing July 13, 2012;
b. a copy of her 2012 income tax return and notice of assessment;
c. a copy of any readily available documentation concerning offers of employment made to the applicant by potential employers other than the respondent between June 1, 2012 to July 3, 2012; and
d. a copy of all documents in Dr. Gushue’s medical file: that relate directly or indirectly to her pregnancy; and for the period starting July 13, 2011 to the end of the applicant’s pregnancy, any documents related to reports of stress or stomach pain and blood pressure readings taken.
10I am not seized of this matter.
Dated at Toronto, this 23rd day of May, 2013.
“Signed by”
Ruth Carey
Member