Rudy v. GEM Health Care Group, 2014 HRTO 181

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Chantal Rudy Applicant

-and-

GEM Health Care Group c.o.b. as Groves Park Lodge Respondent

INTERIM DECISION

Adjudicator: Alison Renton Date: February 7, 2014 Citation: 2014 HRTO 181 Indexed as: Rudy v. GEM Health Care Group

APPEARANCES

Chantel Rudy, Applicant Chantel Tie, Counsel

GEM Health Care Group c.o.b. as Groves Park Lodge, Respondent Jennifer Birrell, Counsel

1The hearing is scheduled for February 20 and 21, 2014.

2In a previous Interim Decision, 2014 HRTO 34, addressing issues from a case management call, the Tribunal permitted the applicant to amend the remedies that she is seeking, specifically to include $30,000 and pre- and post-judgment interest.

3Further, the Tribunal directed the applicant to produce to the respondent the bank records or statements from the account for the period August 13, 2012 to March 6, 2013, the period for which she is seeking loss of wages. The applicant had represented that there was one bank account that she used for both personal and business use. The Tribunal also directed the applicant to produce all documentation that had not been previously disclosed to the respondent, pertaining to her loss of income claim to the extent that there was any outstanding, including, but not limited to:

a. Copies of all pay cheques, pay stubs, pay statements, employment records, T4s, and other income tax records for the relevant time period;

b. Documents concerning employment or prospective employment with Carefor including any letters of offer, employment contracts, record of employment, and any documents referred to in (a) above concerning work performed with this employer;

c. Copies of all financial records for Safe Haven Home Health Care, including but not limited to financial statements, balance sheets, documentation concerning any grants, loans, statements of income and revenue, invoices, bank records (as ordered as above), income tax statements and income tax records; and

d. Copies of all financial records relating to any income or revenue received whether as an employee, principal, partner, independent contractor, consultant, agent or otherwise.

4The applicant has now produced various documentation to the respondent, including statements from a bank account, on which the Tribunal was copied. She has also identified Dr. Strader, her treating physician, as a witness, produced a letter dated December 18, 2013 written by him and some of his medical documentation and notes, as well as communications between Dr. Strader and Dr. Vijay.

5The respondent wrote to the Tribunal objecting to Dr. Strader being called as a witness, and opposing the admissibility of his letter, communications, and notes. It also seeks further production from the applicant about various transactions from her bank account which appear, the respondent submits, to indicate possible income from sources other than those already identified by the applicant.

6The applicant filed a Request for Order During Proceedings (“RFOP”) seeking an order from the Tribunal permitting Dr. Strader to testify by telephone on Friday, February 22, 2014 at 9:30 a.m., the morning of the second scheduled day of hearing. The respondent has not filed a Response to the RFOP.

7A lengthy case management conference call (“the call”) was held on February 5, 2014 to address the issues identified in paras. 5 and 6. Both parties made thorough submissions, which are summarized below. The applicant undertook to provide some information, as is set out below. Following the call, as agreed to, both parties emailed the Tribunal with the names and citations of the cases to which they referred during the hearing. The respondent also filed charts addressing the ATM deposits which appear in the applicant’s banking records, as well as the deposits, some of which are called “payroll deposit”, from the federal and/or provincial governments which appear in the applicant’s banking records. On February 6, and while this Interim Decision was being drafted, the applicant wrote to the Tribunal providing an update about some of the applicant’s medical documentation.

8The parties’ submissions, the documentation filed before and after the call, and the case law referenced by the parties have all been carefully considered by the Tribunal.

The applicant’s bank account

Transactions from the applicant’s banking records

The respondent’s submissions

9The respondent requests that the Tribunal order the applicant to disclose supporting documentation pertaining to the ABM deposits and federal/provincial payments deposited into her banking account during the period for which the applicant is seeking loss of wages. Specifically, the respondent is seeking disclosure of the purpose of the payments, who they were from, what they pertain to and who they were paid to. The respondent submits that this information is arguably relevant given that the applicant is seeking loss of wages for the period August 2012 to March 2013.

10The respondent referred to a chart it prepared, which was submitted to the Tribunal following the call, which itemized the ABM deposits by date and amount, with the total being over $20,000. The respondent says that unless the source and/or information of those deposits is produced, it will assert that the deposits are income.

11Secondly, the respondent referred to another chart which it prepared showing payments classified as “federal”, “fed-prov/terr”, “provincial”, and other similar descriptions, deposited into the applicant’s bank account, along with the date and amount of the deposit, with the total being over $12,000. Again, the respondent asserts that it will assert these deposits are income in the absence of supporting documentation explaining the payment.

The applicant’s submissions

12The applicant submits that she is attempting to find out further information from her bank about both types of deposits for which the respondent is seeking information, but it is complicated as she does not recall the reason for these deposits other than they were not income. She submits that it may be impossible to now obtain that information given the passage of time.

Analysis

13The supporting documentation that the respondent is seeking is arguably relevant to the applicant’s claim for loss of wages. The banking statements that the applicant provided contain numerous deposits that total a significant amount of money. While I appreciate the applicant’s efforts to obtain information about these deposits, as the hearing is quickly approaching, I order that she immediately provide supporting documentation to the respondent pertaining to the deposits as identified on the charts prepared by the respondent.

The type of bank account

The respondent’s position

14The respondent requests that the applicant identify whether or not the bank account is a joint bank account or a bank account registered solely to her name. It also requests an order for the names of the persons on the bank account.

The applicant’s position

15During the call, the applicant undertook to advise whether or not the bank account was a joint bank account or not.

Analysis

16The Tribunal appreciates the applicant’s undertaking that she will provide this information to the respondent and would do so without an order. However, because of the impending hearing date, and in order to prevent any difficulties that may arise, the Tribunal orders the applicant to immediately advise the respondent whether or not the bank account is a joint account or only in the applicant’s name. To the extent that it is a joint account, and if this has not been previously provided, the applicant is directed to advise the respondent of the names of others who are also on the account.

Other bank accounts

The respondent’s submissions

17The respondent wants some assurance from the applicant that she does not have any other bank accounts, in addition to the one for which she provided banking records, in light of the applicant’s claim for loss of wages. If so, the respondent seeks disclosure of that bank account, and its records, in compliance with the order from the Interim Decision, as set out in para. 3 above.

The applicant’s submissions

18Counsel for the applicant submitted that she did not know if there were other bank accounts and she believed that the applicant had satisfied the requirements of para. 3 above with the disclosure of business records and the banking statements. She undertook to have the applicant confirm in writing whether there was one bank account, or others.

Analysis

19The issue of the bank accounts is arguably relevant to the applicant’s claim for loss of wages. While the applicant has provided statements for one account, it is arguably relevant to determine whether she has another, or other, bank accounts. Accordingly, the applicant is directed to confirm, in writing, that the bank account for which she has provided information and statements, is her sole bank account. If it is not, she is directed to identify, in writing, the name of the bank(s), the bank account number(s), and provide statements of that bank account(s) to the respondent forthwith.

Dr. strader testifying as a witness and medical documentation

The respondent’s position

20The respondent objects to Dr. Strader testifying as a witness at the hearing. It submits that it is being subjected to “trial by ambush” and was surprised when it saw that Dr. Strader identified as a witness, along with new documents that had not previously been disclosed. It goes to the heart of procedural fairness, it submits, and the respondent’s ability to respond to the issues raised in the Application, when several weeks before the hearing it has to address an expert’s report without the proper foundation for that.

21The respondent objects to the applicant’s medical condition coming into play so close to the start of the hearing. When the Tribunal permitted the applicant to amend the remedies she was seeking to $30,000, as permitted in the Interim Decision, her request was not based upon putting her medical condition at issue in the hearing. The respondent had no reason to believe that the applicant’s medical condition was at issue in these proceedings and had it known, it would have requested disclosure of medical documentation when it previously raised concerns about the insufficiency of the production of the applicant’s arguably relevant documents. In fact, the applicant’s fitness to return to work was not, the respondent submits, an issue as she had a medical note saying that she could return to work and started a personal business.

22Further, the respondent objects to Dr. Strader testifying as it asserts that Dr. Strader will be giving opinion evidence and he has not been identified as an expert witness pursuant to Rules 17.3 or 17.4 of the Tribunal’s Rules of Procedure and his curriculum vitae had not been provided. Thirdly, it submits that only select medical documentation has been submitted by the applicant, rather than all of Dr. Strader’s clinical notes and file, as well as the clinical notes of Dr. Vijay, which the respondent requests production of as well as the questions that counsel for the applicant asked Dr. Strader to answer.

23Alternatively, the respondent submits that if Dr. Strader is permitted to testify, to which it objects, that full medical disclosure be provided to it, including copies of Dr. Strader’s clinical notes and records, as well as those of Dr. Vijay, as well as a complete decoded OHIP summary. Further, the respondent submits that it will require sufficient time to review all of this material, and perhaps obtain an expert of its own, such that it may not be in a position to start the cross-examination of the applicant on the scheduled hearing days as it does not want to seek an adjournment.

24The respondent submitted that it could not make any submissions about Dr. Strader testifying by telephone, as requested by the applicant in her RFOP, given that it did not have Dr. Strader’s clinical notes and does not know if credibility will be an issue with his evidence. It reserves its right to make submissions on this point following receipt of the clinical records.

The applicant’s submissions

25The applicant submits that her medical condition is relevant to the impact the respondent’s actions had on her and that this has been clear since her Application was filed, specifically noting her response to Question 9 on the Application form when she indicated that the respondent’s action “affected me emotion[ally], social[ly], mentally, and financially”. The applicant is not required to spell out how she intends to prove this impact in advance of the hearing, she submits, and production of the medical documentation and identification of Dr. Strader as a witness at the time that the applicant advised the respondent of this is not a “trial by ambush”.

26Further, she states that Dr. Strader is the applicant’s treating physician and accordingly is in a position to testify about the applicant’s medical condition, particularly the medical impact of the respondent’s actions on the applicant’s ability to find other employment. Dr. Strader is not being called as an expert and accordingly a curriculum vitae is not required. During the call she agreed to produce copies of medical documentation from Dr. Strader and Dr. Vijay to respondent counsel with the parties reserving their submissions with respect to the relevance of or objections to such production. The applicant’s counsel also agreed to provide a copy of the detailed OHIP summary and provide it to the respondent’s counsel. The applicant’s counsel also advised that she had provided respondent counsel with the questions that she asked Dr. Strader.

27In applicant counsel’s February 6 communication, she advises that she contacted Dr. Strader’s office to obtain a copy of the complete file and was advised that it would cost over $1,000 as Dr. Strader has been the applicant’s physician since her birth. Accordingly, the applicant is prepared to disclose to the respondent a copy of the file from 2009 onwards, as that is the time the medical condition that is relevant to this Application commenced. Counsel also provided details about when she initially requested, and received, information from Dr. Strader and when that was disclosed to the respondent and stated that she had provided a copy of her letter to Dr. Strader to which he responded in his December 18, 2013 letter.

Analysis

28Rules 16 and 17 of the Tribunal’s Rules of Procedure address the parties’ disclosure obligations, including production of arguably relevant documentation, documentation upon which a party intends to rely at a hearing, identification of witnesses, and summaries of their anticipated evidence. Rules 16.4 and 17.4 state:

16.4 No party may rely on or present any document not included on a document list and provided to the other parties in accordance with Rule 16.1 and 16.2, and filed with the Tribunal under Rule 16.3, except with the permission of the Tribunal.

17.4 No party may present a witness whose name and summary of evidence was not included in a witness list and delivered and filed in accordance with Rules 17.1 and 17.2 or present an expert witness if material has not been delivered and filed in accordance with Rule 17.3, except with the permission of the Tribunal.

29I agree with the respondent that if the applicant had intended to call Dr. Strader as a witness and/or intended to rely upon her medical condition about the impact of the respondent’s actions upon her or her ability to find alternative employment, then medical documentation from Dr. Strader and possibly other health care professionals should have been disclosed as part of her arguably relevant documents even if they were not in her possession. See Buttar v. Halton Regional Police Services Board, 2012 HRTO 1750 at para. 13. The respondent has spent a lot of time and effort in having the applicant produce her arguably relevant documents, with those efforts still continuing.

30Saying that, however, the applicant’s counsel had agreed to provide respondent counsel with copies of medical documentation from 2009 onwards for Dr. Strader and has agreed to provide copies of Dr. Vijay’s clinical notes and records. Despite this undertaking, and again in light of the pending hearing, I direct the applicant to immediately comply with her counsel’s undertaking for this information from both Dr. Strader and Dr. Vijay and provide it to respondent counsel forthwith.

31I am also prepared to have Dr. Strader testify and I understand that he is not being presented as an expert. The Tribunal has permitted treating, or family, physicians to testify about their patients without the doctor being called or certified as an expert witness, but has indicated that if the doctor is presented as an expert, then he or she must be qualified as a witness pursuant to Rule 17 of the Tribunal’s Rules. See Shaikh v. York Condominium Corporation #60, 2012 HRTO 809 as para. 13. However, I would caution the applicant that if Dr. Strader gives opinion evidence during his examination-in-chief such as that which an expert would give, she should anticipate an objection from the respondent to that evidence based upon the submissions that respondent counsel has made.

32In allowing Dr. Strader to testify, I note that the applicant’s response to Question 9 on the Application form did put her emotional and mental condition at issue. Dr. Strader’s evidence would be in relation to those conditions. The respondent has known since January 7, 2014 that Dr. Strader is an intended witness when the parties filed with disclosure obligations with the Tribunal and each other.

33Further, to address the respondent’s concerns that it will not have sufficient time to review the medical documentation, as addressed during the call, the applicant’s cross-examination may not proceed immediately following her examination-in-chief if the respondent’s counsel requires further time to review the medical documentation. Furthermore, as was confirmed during the call and addressing the issue raised in the applicant’s RFOP, Dr. Strader will not be testifying on February 22, 2014. If his evidence is required, then a further date will be set for that and the Tribunal will hear the parties’ submissions on whether it should be in-person or by telephone.