Yadwinder Pannu v. Toronto Transit Commission, 2014 HRTO 133

Human Rights Tribunal of Ontario

B E T W E E N:

Yadwinder Pannu Applicant

-and-

Toronto Transit Commission Respondent

INTERIM DECISION

Adjudicator: Ruth Carey Date: January 29, 2014 Citation: 2014 HRTO 133 Indexed as: Pannu v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Yadwinder Pannu, Applicant Patrick James, Counsel

Toronto Transit Commission, Respondent Steve Lavender, 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 disability. The Application alleges the respondent breached the Code by terminating the applicant’s employment because of his disabilities and to avoid having to accommodate him in employment in the future; and by conducting covert surveillance of him. The respondent has not yet filed a Response.

2On January 14, 2014, the respondent filed and delivered a Request for Order During Proceedings (“RFOP”) seeking an order permitting it to access, use, and disclose the applicant’s personal health and other information in its possession for the purpose of this proceeding; and for an extension of time to file its Response. On January 22, 2014, the applicant filed his Response to a Request for an Order (“RRO”). The applicant consents to the RFOP in part but seeks to limit the scope and extent of the Tribunal’s order with respect to use and disclosure of the applicant’s personal health information, and argues that the extension of time should be limited to ten days. On January 22, 2014, the Tribunal received an e-mail from the respondent containing additional argument as to why the full extension of time requested should be granted.

3This Interim Decision is being issued to address the respondent’s RFOP.

The Request Regarding Accessing the Applicant’s Personal Health Information

4Given the applicant’s consent to the respondent accessing and using the personal health and other information contained in its files held by the respondent’s Occupational Health and Claims Management Section, it may be that this part of the order requested by the respondent is now moot. However, in order to avoid any additional difficulty or delay for the parties, this part of the RFOP shall be expressly granted.

5The wording used by the applicant and the respondent with respect to the proposed order differs slightly in their submissions. The wording used in this Interim Decision is intended to ensure that the respondent’s use and disclosure of the applicant’s personal health and other information is limited to protect the privacy interests of the applicant but sufficiently broad to fulfill the respondent’s legitimate purposes.

The Extension of Time for Filing the Response

6The RFOP requests that the Tribunal extend the time for filing the respondent’s Response:

… to begin 35 days from the date that the Tribunal issues its Order in response to [the RFOP], or the date upon which the files are produced to counsel by [the respondent’s Occupational Health and Claims Management Section], whichever is later.

7The primary difficulty with this request is that the respondent is proposing a deadline for filing its Response that is a shifting target; the ultimate deadline would be dependent upon the respondent’s own actions, namely it depends on the date it delivers files already in its possession to its own counsel. As a result it is more appropriate that any extension of time granted run from the date of this Interim Decision.

8Pursuant to Rule 8.1 of the Tribunal’s Rules of Practice a respondent must file a complete response no later than 35 days after a copy of the application is sent to the respondent by the Tribunal. According to the respondent’s e-mail of January 22, 2014, the Tribunal mailed the Application to the respondent on December 23, 2013, even though the covering letter that accompanied it is dated December 19, 2013. Given the manner in which the Tribunal accesses mail services, I am prepared to accept this assertion of the respondent’s. Pursuant to Rule 8.1 this means the Response was due no later than January 23, 2014.

9The respondent’s RFOP takes the position that it cannot prepare its Response to the Application until it has permission to access, use and disclose the applicant’s personal health and other information currently in the possession of its Occupational Health and Claims Management Section. I have some difficulty with this rationale as the Application alleges the respondent breached the Code by terminating the applicant’s employment for just cause after the respondent conducted covert surveillance of the applicant. The RFOP incorrectly states the allegations in the Application include an assertion that the respondent “failed or refused to accommodate [the applicant’s] disabilities, while he was off work”. No such allegation is contained in the Application; rather the Application alleges the applicant was not able to work at the time of termination and any accommodation issues lay in the future. As a result it is not clear that the respondent actually needs to access, use or disclose the information contained in the applicant’s records held by the respondent’s Occupational Health and Claims Management Section to draft its Response.

10Nonetheless, assuming without finding that the respondent does need to access, use, or disclose the information in the possession of its Occupational Health and Claims Management Section to draft its Response, in all the circumstances here a reasonable extension of time would be an additional 15 days from the issuance of this Interim Decision.

11I say this because this Interim Decision is being issued approximately 15 days after the RFOP was filed and it would appear that filing the RFOP was unnecessary. Both the RFOP and the RRO indicate the respondent filed the RFOP without first accessing the more expedient route of asking counsel for the applicant for his consent to the access, use, and disclosure in writing, which is clearly contemplated and permitted by both the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, and the Personal Health Information Protection Act 2004, S.O 2004, c. 3, Sched. A. As the applicant consents to access, use and disclosure, these Acts make an order from the Tribunal unnecessary.

DECISION

12For the sole purpose of responding to the Application and defending its position in this proceeding: the respondent may access, use, and disclose relevant personal health and other information pertaining to the applicant that is contained in the files currently being held by the respondent’s Occupational Health and Claims Management Section; but the right to disclose same to any individual is strictly limited to necessary disclosures only.

13The respondent shall file its Response within 15 days of the date of this Interim Decision.

14I am not seized of this matter.