Human Rights Tribunal of Ontario
B E T W E E N:
Katherine Bosnitch
Applicant
-and-
Humber College Institute of Technology and Advanced Learning
Respondent
INTERIM DECISION
Adjudicator: Alison Renton
Indexed as: Bosnitch v. Humber College Institute of Technology and Advanced Learning
WRITTEN SUBMISSIONS
Katherine Bosnitch, Applicant
Christian Vernon, Counsel
Humber College Institute of Technology and Advanced Learning, Respondent
Brenda Bowlby, Counsel
1This Application alleges discrimination with respect to employment because of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").
2The hearing in this matter is scheduled for October 29, 30 and November 18, 2014.
3This Interim Decision is about a Request for Order During Proceedings ("RFOP") filed by the respondent requesting production of various medical documents. The respondent's request is opposed by the applicant.
The respondent's position
4In its RFOP, the respondent requests that the Tribunal order the applicant to obtain and provide to respondent counsel complete and unredacted copies of the medical records, test results and clinical notes of her physicians, namely Dr. Camelia Dragomir, Dr. Katalin Margittai, Dr. Sivasibramainan (whose report is referenced in a letter by Dr. Margittai) and any other physician or psychologist whose medical reports will be filed in this proceeding by the applicant, that either relate to any diagnosis of disability for which the applicant claims accommodation, and otherwise, all medical reports, clinical notes and test results from and including September 2009 up to the end of October 2011 or to the most recent date of any report upon which the applicant seeks to file, whichever is later.
5The respondent submits that the medical documentation requested is arguably relevant to the issues at play between the parties and that it has only requested documentation that is arguably relevant rather than full disclosure. The respondent states that the legitimacy of the applicant's claim that she has a disability or disabilities that requires accommodation will be a significant issue at the hearing, and that the accommodations directed by the applicant's physicians have been based upon what the applicant has told them about her workplace.
The applicant's position
6The applicant opposes production.
7First, she submits that the respondent does not need the requested medical documentation in order to understand her functional limitations, for which she has produced medical documentation, and to be able to implement accommodation of her disability. The documentation is not, therefore, relevant and the respondent is attempting to peer behind her reports of interpersonal conflict to her treating physician and misses the point about her perceptions about the conflict.
8Further, the applicant takes issue with the respondent's request and claims that it is beyond the medical documentation she is required to disclose to her employer about her medical condition. In support of this position, she cites from the Ontario Human Rights Commission's ("the Commission") "Policy on Preventing Discrimination based on Mental Health Disabilities and Addictions" ("the policy").
9The applicant also submits that the medical records at issue are records of therapeutic psychiatric and doctor/patient relationships where very personal and confidential information is shared with the applicant's treating physicians and that the production of these records raises the prospect of a chilling effect for accommodation seekers, particularly those with psychiatric conditions.
Analysis
10Rule 1.7(p) of the Tribunal's Rules of Procedure permits the Tribunal to order production of any documentation and information in order to provide for the fair, just and expeditious resolution of any matter before it.
11In Lampi v. Princess House Products Canada Inc., 2008 HRTO 1 at para. 8, the Tribunal stated:
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.
12In this case, the applicant has placed her medical condition at issue before the Tribunal, in the form of requests to be accommodated, the nature of the accommodation, and the medical effects of allegedly not being accommodated as she requested. She asserts that she has a number of disabilities, some of which are physical and some of which are mental health, which she identifies at para. 2 of the Application. She asserts, throughout the body of her Application, including in the section about how the events described affected her and the remedies that she claims, that she has suffered medical harm or a worsening medical condition as a result of the respondent's conduct and environment. She identifies, in the section "Important Documents You have", medical reports, which confirm her medical conditions and accommodations, as well as "medical reports and clinical notes of Dr. Margittai" which she asserts is important because it is "psychiatric evidence confirming medical condition and accommodation".
13Furthermore, the medical documentation to which the parties referred in their submissions to the RFOP reference medical documentation completed by other physicians.
14An applicant who alleges discrimination or harassment on the basis of disability in an application before the Tribunal, and seeks remedies including remedies for a worsening in the condition, may have to disclose more medical documentation than he or she did in their employment. These situations can be different from that addressed in the Commission's policy. Furthermore, an applicant who alleges discrimination on the basis of disability must prove that he or she has a disability as defined by the Code. This may require production of medical documentation that has not previously been produced to an employer.
15At this stage of the proceedings, the medical documentation being sought by the respondent is arguably relevant to the issues raised in the Application and as such the respondent's request in its RFOP is granted. The applicant is required to produce medical documentation, in the nature of the order set out below.
16Of course, being required to produce this documentation does not mean that it is automatically admissible during the hearing. Any challenged documentation will be addressed during the hearing.
17I am sympathetic to the applicant's concerns that some of her medical documentation contains highly sensitive and personal information. I note that the respondent's production request is for production of the materials to respondent's counsel. Taking into consideration the privacy concerns, I have limited the disclosure of the applicant's medical documentation to respondent counsel and the client from whom respondent counsel is seeking instructions.
18In a previous Case Assessment Direction dated July 17, 2014, the Tribunal directed the applicant to provide the respondent with her witness statements and documentation upon which she intends to rely by September 15, 2014. The medical documentation ordered to be produced shall also be produced by September 15, 2014. Any medical documentation upon which the applicant is relying shall also be filed with the Tribunal.
Order
19Accordingly, the Tribunal orders the following:
The applicant is directed to obtain and provide to respondent counsel complete and unredacted copies of the medical records, test results and clinical notes of her physicians, namely Dr. Camelia Dragomir, Dr. Katalin Margittai, Dr. Sivasibramainan and any other physician or psychologist whose medical reports will be filed in this proceeding by the applicant, that either relate to any diagnosis of disability for which the applicant claims accommodation, and otherwise, all medical reports, clinical notes and test results from and including September 2009 up to the end of October 2011, or to the most recent date of any report for which the applicant seeks to file, whichever is later.
The applicant is directed to obtain and provide copies of this documentation no later than September 15, 2014;
The applicant's disclosure of this medical documentation is limited to the respondent's counsel and the client from whom the respondent's counsel is obtaining instructions; and
Any medical documentation upon which the applicant is relying at the hearing shall also be filed with the Tribunal by September 15, 2014.
Dated at Toronto, this 22nd day of August, 2014.
"Signed by"
Alison Renton
Vice-chair