HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Marcello Fossella
Applicant
-and-
Toronto Transit Commission
Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané
Date: October 24, 2014
Citation: 2014 HRTO 1572
Indexed as: Fossella v. Toronto Transit Commission
WRITTEN SUBMISSIONS
Marcello Fossella, Applicant
Yan Payne, Counsel
Toronto Transit Commission, Respondent
Patricia Matusiak, Counsel
1The respondent, who has not yet filed its Response, has filed a Request for an Order during Proceedings to have permission to access, use and disclose the applicant’s TTC Occupational Health and Claims Management File (the “OHCM File”) for the purposes of this proceeding. The respondent also requests an extension of 35 days to file its Response.
2The applicant consents to the Request except that he submits that the respondent should be required to file its Response within 14 days of the date of this Interim Decision.
THE OHCM FILE
3Absent exceptional circumstances, the Tribunal will not permit a request for particulars or production of documents to delay the filing of a complete response: Glynn v. Lowe’s Companies Canada, 2009 HRTO 1180. However, the Tribunal has also recognized in a similar situation that it is sometimes appropriate to order access to an internal medical file at an early stage in order to ensure that the respondents are in a position to meaningfully respond to the Application, see Bryer v. (City) Toronto, 2010 HRTO 2389, Johnston v. Toronto Transit Commission, 2011 HRTO 923, and Power v. Toronto Transit Commission, 2011 HRTO 1462.
4It would be unfair in these circumstances to require the respondent to file a Response without it being able to review all arguably relevant documents. These are exceptional circumstances which justify the production of these documents at this stage. I also note that the Request for access is on consent.
EXTENSION OF TIME
5The respondent seeks an extension of 35 days to file its Response. The applicant submits that a 14 day extension is appropriate, since the respondent waited until the day its Response was due to file its Request. I have considered this matter and I find that it is appropriate that the respondent file its Response within 21 days.
ORDER
6The Tribunal orders that the respondent is:
a. Authorized to access, use and/or disclose the applicant’s personal health information that is contained in the OHCM File pertaining to the applicant to the extent that such documentation/information relates to or is an issue in the Application and is for the purpose of responding to and defending the Application; and
b. Permitted to review and/or disclose any relevant information/ documentation contained in the OHCM File pertaining to the applicant that may contain personal health information of the applicant with individuals who are expected to be witnesses in this matter and/or whose employment duties include providing instructions related to and/or responding to the Application;
c. Required to deliver to the applicant’s counsel a copy of the OHCM File within 14 days of the date of this Interim Decision; and
d. Required to file with the Tribunal its completed Form 2, Response to the Application within 21 days of the date of this Interim Decision.
7I am not seized.
Dated at Toronto, this 24th day of October, 2014.
“Signed by”
Geneviève Debané
Vice-chair