Richard v. Toronto Transit Commission, 2014 HRTO 1644

Ellaine Richard

Applicant

-and-

Toronto Transit Commission, Michael Sosedov and Dwyke Young

Respondents

-and-

Amalgamated Transit Union, Local 113

Intervenor

INTERIM DECISION

Adjudicator: Alison Renton Date: November 12, 2014 Citation: 2014 HRTO 1644 Indexed as: Richard v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Ellaine Richard, Applicant Self-represented

Toronto Transit Commission, Michael Sosedov, and Dwyke Young, Respondents Patricia Matusiak, Counsel

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). By letter dated October 7, 2014, the Tribunal granted intervenor status to Amalgamated Transit Union, Local 113 ("the union"), which represents the applicant in the workplace.

2After the Tribunal served the Application, the respondents filed a Request for an Order During Proceedings ("RFOP") requesting that the personal respondents be removed as personal respondents, an order from the Tribunal authorizing it to access, use and/or disclose the personal health information of the applicant contained in the respondent's Occupational Health and Claims Management ("OHCM") file, and an order permitting the respondents to file a full Response to the Application within 35 days following the issuance of this Interim Decision.

3The applicant filed a Response to the RFOP objecting to the respondents' requests. The union has not filed any Response to the RFOP.

THE OHCM FILE

The Respondents' Positions

4The respondents submit that because of restrictions contained in legislation, including the Personal Health Information Protection Act, 2004, the content of the OHCM file is kept separate from other human resources files. The respondents request that the Tribunal issue an order which gives them access, use and/or disclosure to the OHCM file pertaining to the applicant to the extent that such documentation or information relates to or is an issue in the Application for the purposes of responding to and defending the Application, including all records related to any illnesses/injuries including an alleged back injury which contributed to the applicant requesting a specific chair. Furthermore, the respondents seek an order from the Tribunal permitting the respondents to review and/or disclose any relevant documentation/information in its 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.

The Applicant's Position

5The applicant opposes the respondents' request for access to the OHCM file. She submits that the personal respondents violated her privacy in their actions on the subway, and one of them on another occasion, and notes that the respondents' request is not being made at the disclosure stage of the Tribunal's process.

ANALYSIS

6Before ordering production of documents, even at an early stage, the Tribunal must be satisfied that the documents in question are "arguably relevant", and that they are not privileged or raise privacy concerns, see McKay v. Toronto Police Services Board, 2009 HRTO 1220. "Arguable relevance" is not a particularly high threshold, but the party seeking production must establish that the document(s) in question may prove or disprove a fact in issue in the dispute. A finding that a document is arguably relevant does not necessarily mean that the document will actually be found to be relevant or admissible at a hearing.

7In her Application, the applicant has clearly placed at issue her medical condition, whether she requires accommodation, and what accommodations are required. I am satisfied that some of the documents or information contained in the OHCM file are arguably relevant to the issues in the Application and that the respondents require access to them in order to meaningfully respond to the Application.

8I note that the respondents have limited their disclosure request of the OHCM file to that documentation or information which relates to or is an issue in the Application for the purposes of responding to and defending the Application, including all records related to any illnesses/injuries including an alleged back injury which contributed to the applicant requesting a specific chair. I find that it is appropriate to limit the disclosure to this information.

9Furthermore, I find that it is appropriate to place limitations upon who can review this information or documentation. The documentation and/or information will be limited to counsel, those 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. As there continue to be two individuals who are personally named, they too will have access to this information/documentation.

REMOVING THE PERSONAL RESPONDENTS

10The Tribunal will defer the issue of whether or not the personal respondents should be removed until after the respondents' joint Response or separate Responses are filed, the applicant's Reply is filed, or the time for doing so has elapsed.

EXTENSION OF TIME FOR FILING A RESPONSE

11The respondents are granted 35 days from the date of this Interim Decision to file a joint Response or separate Responses.

ORDER

12The Tribunal orders as follows:

a. The respondent is granted disclosure and access to the applicant's OHCM file related to any illnesses/injuries including an alleged back injury which contributed to the applicant requesting a specific chair;

b. The disclosure in para. a above is limited to counsel, those 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. The individuals who are personally named also have access to this information/documentation as they are parties to this Application;

c. The respondents' request for an extension of time is granted. The respondents are required to file a joint Response or separate Responses within 35 days from the date of this Interim Decision; and

d. The issue about removing the personal respondents is deferred until the respondents file their Response/Responses, the applicant files her Reply or the time for doing so has elapsed.

13I am not seized with this matter.

Dated at Toronto, this 12th day of November, 2014.

"Signed by"

Alison Renton Vice-chair```